Court of Cassation Ruling on Bodily Harm Compensation

Extract

[...] The Bordeaux Court of Appeal, on April set the compensation for the harm without taking into account the aggravation of the patient's condition due to the refusal of care. Unsatisfied with this decision, the patient appealed to the cassation court. 3°) To determine the meaning and motives of the Court of Appeal's decision. To limit the liability of the clinic and attribute the aggravation of the patient's condition to its refusal of care, the Court of Appeal relies on several elements. [...]

[...] The content of the appeal does not appear in the judgment, as it is a judgment of cassation. When it is a judgment of cassation, only the reasons of the Court of Appeal appear. What is the solution of the Court of Cassation: to which thesis does it give right? How does this solution translate on the procedural level? In its judgment of 15 January 2015, the first civil chamber of the Court of Cassation gives right to the thesis defended by the appeal. [...]

[...] The decision of the Court of Appeal is annulled and we have to wait for a new decision from the Court of Appeal of referral to know the amount of compensatory indemnification in view of the damage suffered. It is likely that the Court of Appeal will follow the Court of Cassation and compensate the entire damage. How does this decision fit into the jurisprudence? This decision confirms three previous judgments that have stated that the victim of a prejudice is not required to limit it. [...]

[...] It is a patient who contracted a nosocomial infection as a result of a surgical intervention. His medical situation worsened following the patient's refusal to follow the treatment proposed by the clinic. 2°) What is the subject of the dispute? Who initiated the procedure? What are the different stages of the procedure? The subject of the dispute is the compensation for the bodily harm caused by the nosocomial infection. The patient initiated the procedure by assigning liability to the clinic where the nosocomial infection was contracted and the doctor who performed the surgical interventions. [...]

[...] In fact, the opposite solution would imply that the patient is indirectly imposed medical care. The Court of Cassation is aiming at article 16-3 of the Civil Code which states that the integrity of the human body cannot be harmed except in cases of medical necessity and with the consent of the person. By this decision, the Court of Cassation affirms that the right to refuse care is a discretionary right that does not have any consequences on the extent of the liability of the author of the damage. [...]