What is medical malpractice? - GOLDWIN Avocats
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What is medical malpractice?

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As a health professional, the physician is subject to a particular responsibility, the medical responsibility. In order to be engaged, the victim or his beneficiaries must demonstrate a fault, a damage and a causal link, except in the case of a damage resulting from defective material, a health product or a laboratory examination, for which the doctor’s responsibility is presumed.

Moreover, he can also be held responsible for the actions of others, for example as the head of a medical team.

To engage the physician’s liability, it is necessary to prove the breach of his 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 can be provided by any means.

The physician may be considered to be at fault for various (non-exhaustive) breaches provided for in particular by the Code of Public Health or the Code of Ethics:

Failure to comply with his obligation of prudence and diligence: this is the case when an illicit act is performed, when a patient’s rights are not respected (dignity, consent, refusal…), when the duty to inform is not respected (on the diagnosis, the treatment, the inherent risks, administrative costs…)… In the case of lack of information and consent, it is up to the establishment and the doctor to bring the proof of the transmission of these elements in good and due form;
Failure to comply with 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 duty of supervision;
In case of negligence, imprudence or clumsiness: for example in the implementation of a treatment or an operation or by disregarding “the acquired data of science” or the “rules of art”;
Non-compliance with the law or the practices of the profession.

However, a distinction must be made depending on whether the physician is self-employed or working in a public or private institution:

In the context of a private practice: the physician is personally liable insofar as he personally concludes the contract;
Within the framework of a practice within a public or private establishment, their status is harmonized:
Principle: the physician does not incur liability in the event of a “service fault” due to a hospitalization contract that directly binds the structure to the patient
Exception: the doctor is liable in case of personal fault, detachable from the service, considered as “voluntary and inexcusable breach of professional and ethical obligations”.

In case of fault, the professional health insurances take care of the medical breaches, as well as the “therapeutic hazard” can be compensated by the National Office of Compensation for Medical Accidents.

The limitation period for both private doctors and doctors working in private or public structures is 10 years, starting from the consolidation (evaluation and awarding of compensation) of the damage.

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