As a healthcare professional, the doctor is subject to a specific type of liability: medical liability. In order to be held liable, the victim or his beneficiaries must demonstrate that there has been a fault, that there has been damage and that there is a causal link, except in the case of damage resulting from defective equipment, a defective health product or a laboratory examination, where the doctor’s liability is presumed.
The doctor may also be held liable for the acts of others, for example as the head of a medical team.
In order for a doctor to be held liable, it is necessary to prove that he or she failed to fulfil his or her obligations. The fault is assessed in abstracto, with reference to the normal behaviour of a doctor, without any particular degree of seriousness being required.
As a legal fact, proof may be provided by any means.
The doctor may be considered to be at fault in the event of various breaches (not exhaustive) provided for in particular by the Public Health Code or the Code of Ethics:
- Breach of his duty of care and diligence: this is the case when he performs an illegal act, fails to respect a patient’s rights (to dignity, consent, refusal, etc.), or fails in his duty to provide information (on the diagnosis, treatment, inherent risks, administrative costs, etc.). In cases of failure to provide information and consent, it is up to the establishment and the doctor to provide proof that these elements have been duly transmitted;
- Breach of the duty to assist: i.e. not abandoning a patient during treatment without continuing the care;
- Breach of the duty of medical confidentiality ;
- Breach of the duty to supervise ;
- In the event of negligence, imprudence or clumsiness: for example, in the implementation of a treatment or operation or through disregard for “acquired scientific data” or “best practice”;
- Failure to comply with the law or professional practice.
However, a distinction must be made depending on whether the doctor is self-employed or works in a public or private establishment:
- When practising ona self-employed basis: the doctor is personally liable insofar as he personally concludes the contract;
- When working in a public or private establishment, their status is harmonised:
- Principle: the doctor is not liable in the event of a “service fault” due to a hospitalisation contract that directly binds the facility to the patient.
- Exception: doctors are liable in the event of personal misconduct, detachable from the service, considered to be a “wilful and inexcusable breach of professional and ethical obligations”.
In the event of negligence, professional health insurance companies will cover medical negligence, just as the “therapeutic hazard” may be compensated by the Office national d’indemnisation des accidents médicaux (National Office for Compensation for Medical Accidents).
The limitation period for both self-employed doctors and doctors working in private or public practice is 10 years, starting from the consolidation (assessment and award of compensation) of the injury.
