Court of Cassation, compensation, disabled child, birth damage, medical fault, diagnostic error, contractual liability, rubella infection
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Abstract
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Abstract
Court of Cassation ruling on compensation for damage resulting from the birth of a disabled child.
Extract
[...] The object of the contract concerned the provision of a diagnosis regarding the risk of the development of a disease for the unborn child. A diagnostic error, that is to say a fault capable of engaging medical liability, was found. This diagnostic error had the consequence of the mother's choice to continue her pregnancy: a disabled child was born. The two Appeal Courts and the Court of Cassation did not go against the indemnification of the parents' damage. This indemnification is an unanimous, unchallenged decision. [...]
[...] The Court of Cassation has therefore created a new compensable damage, that of birth. This double recognition of the damage is legally accurate but remains however criticable in certain respects. II- A legally accurate but criticable judgment From a legal point of view, the decision is acceptable On the other hand, it is criticizable from a moral point of view A decision acceptable from a legal point of view The real issue here stems from the existence of a causal link between, on the one hand, the diagnostic error, medical fault, and on the other hand, the child's harm. [...]
[...] The doctor told her that she was immune to rubella, so the pregnant woman decided to continue her pregnancy, not to interrupt it. However, she gave birth to a disabled child presenting the symptoms of rubella. Consequently, the child's parents sued both the doctor and the laboratory, as their diagnosis, wrong, had convinced them to continue the pregnancy. They asked for compensation for their personal damage but also for the damage suffered by the child, that of being born disabled. Following an appeal, the Paris Court of Appeal made a ruling on 17 December 1993. [...]
[...] The theory is therefore correctly applied in law and is justified, all the more so from the point of view of articles 1165 and 1382 of the old Civil Code. Justified in law, this decision has sparked a lot of ink from a moral point of view. A decision criticable from a moral point of view It seems to follow from this solution that the disabled child should not have been born. This would then imply a kind of hierarchy between lives that would be worth living on the one hand and those that would not (including lives accompanied by handicaps). [...]
[...] Finally, the judges of the fact found that the child's damage had no causal link with these faults. This ruling was overturned on this last point. The Orleans Court of Appeal then made a ruling. It went in the same direction as the Paris Court of Appeal regarding the child's damage, which, according to it, should not be compensated. The question that arises in this case is the following: Can a child born with a disability be compensated solely due to their birth? [...]
