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Case:
CE, Sect., 5 janvier 2000, p. 5 Case Consorts Telle, APHP
Date:
05 January 2000
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

5 January 2000

Conseil d’Etat

In view of the application lodged deposed on 20 August 1996 on behalf of Mme T, as well as M. S.T. and Mme D., representatives of M. T. who died on 27 September 1997, in which Mme T. …asks the Conseil d’Etat

1) to annul the decision of 20 June 1996 whereby the administrative court of appeal of Lyons responded to the request of the Civil Hospices of Lyons to annul the decision of 19 April 1995 whereby the administrative tribunal of Lyons held the them liable to pay the sum of 752,728.93 francs to M. T. and 60,000 francs to Mme T. as compensation for the harmful consequences of the incident of which M. T. was the victim while undergoing an embolisation;

2) and to make the Civil Hospices pay them the sum of 12,000 francs under article 75-I of the Law of 10 July 1991;,,,,,

Considering that even when it is rendered in complete accordance with best practice any medical treatment which involves a known risk of death or disablement requires that the patient be made aware of this in such a manner as to ensure that his consent is fully informed; and that even if such information can be dispensed with in cases of urgency or impossibility or when the patient refuses to let himself be informed, the mere fact that such risks occur only rarely is not sufficient;

Considering that when the micro-catheter placed in the cerebral artery of M. T. broke after insertion during an operation designed to deal by embolisation with an arteriovenous malformation this caused ischemia resulting in continuing paralysis of the patient’s left arm and leg; that the administrative court of appeal of Lyons held that there was no need to inform the patient of the risks of the operation, seeing that they were very slight, and that this was an error of law for which its judgment must be annulled;

Considering that it follows from the findings below that treatment by embolisation, even if conducted in accordance with the best practice, does involve risks of death or disablement for the patient, especially such as causing ischemia following the breakage of the microcatheter when being removed from the artery in which it had been placed, and that such risks must be brought to the attention of the patient;

Considering that M. T. maintained that he had not been informed of the risks of the operation [and that the hospices could not now contest this];

Considering, however, that the only consequence of the fault of the doctors at the hospital was that M. T. lost the chance of avoiding the risk which eventuated, and that therefore it was wrong for the administrative tribunal, founding solely on the failure to supply the information, to make the Civil Hospices of Lyon liable for the totality of the harm due to the incident;

Considering that it is appropriate for the Conseil d’Etat, seised of the whole case, to examine the other arguments laid before the administrative tribunal by M. and Mme T. to see if they can justify rendering the Civil Hospices liable for the whole damage resulting from the incident;

Considering that the risk of breakage of the catheter when being removed from the artery is a known risk of treatment by embolisation and a risk which cannot be avoided however good the practitioner or the material; that it emerges from the findings that the operation was conducted in conformity with best practice and that, contrary to the assertions of the complainants, there was no proof of fault in the treatment or the organisation of the hospice;

Considering that the expert’s report makes clear that if the embolisation had not taken place, M. T.’s circulatory problems were apt to cause migraines of a more or less disabling variety, epileptic attacks, brain haemorrhages leading to paralysis or even death; that the consequences of the post-operative paralysis of the left side cannot therefore be regarded as unrelated to the patient’s original state of health or its probable development; that therefore the Civil Hospices of Lyons cannot be held strictly liable in the absence of fault;

On the Damage suffered by M. T.:

Considering that there is no evidence of the alleged loss of wages; that it emerges from the findings below that the cost of medical treatment and supplies directly attributable to the incident amount to 761,250 francs; that the degree of incapacity resulting from the left-side paralysis is 75%, making the damage under this head 690,000 francs, so that the total bodily harm suffered by M. T. amounts to 1,451,250 francs;

Considering that an appropriate sum for the loss of amenity and pain and suffering and aesthetic damage would be 150,000 francs;

Considering that the damages payable to M. T. for the loss of the chance of avoiding the risk which actually eventuated can be no more than be a fraction of the harm suffered under the various heads of damage; that, in view of the interrelation of the risks inherent in the operation, on the one hand, and, on the other, the risks of brain haemorrhage which would have been run had the operation been refused, this fraction should be one-fifth; that thus the correct sum for the harm suffered by M. T. is 290,250 francs for the physical harm and 30,000 francs for the other heads of damage;

As regards the rights of the Caisse maladie régionale de travailleurs independents du Rhône:

Considering that under the third limb of article L. 376-1 of the Code of Social Security: “If the liability of a third party is total or is shared with the victim, the Caisse may seek reimbursement of its disbursements up to the amount of the part of the damages for which the third party is liable, but not including the purely personal element in respect of pain and suffering, loss of amenity or aesthetic impairment”: that it follows that the Caisse may make a claim on the sums awarded to the victim in respect of the loss of a chance of avoiding physical harm, with only the strictly personal element being excluded; that thus the Caisse maladie régionale de travailleurs independants du Rhône,which has made disbursements amounting to 753,521.10 francs in respect of the harm to its assured consequent on the embolisation is entitled to be reimbursed to the extent ot 290,250 francs; that therefore the Civil Hospices of Lyons must be held liable to the Caisse in that amount;

On the rights of M. S.T. and Mme Antonia DALL, legal representatives of M. T. who died during the case:

Considering that M. Serge T. and Mme D., legal representatives of M. T. who died during the case are entitled to 30,000 francs, calculated as above in respect of the personal harm suffered by M. T. as a result of the loss of the chance of avoiding the risk which eventuated;

On the harm suffered by Mme T.:

Considering that the conditions of life of Mme T. were adversely affected by her husband’s state of health , that this is worth 60,000 francs; that the compensable harm to Mme T. is due to the fact that M. T. lost the chance of avoiding the risk which eventuated, and must therefore be fixed at one-fifth of the sum mentioned; that therefore the Civil Hospices of Lyons should be held liable to Mme T. ion the amount of 12,000 francs; …

DECIDES:

Article 1: The decision of the administrative appeal court of Lyons dated 20 June 1996 is annulled;

Article 2: The Civil Hospices of Lyons are to pay to M. S.T. and Mme D., the legal representatives of M. T., the sum of 30,000 francs plus interest …

Article 3: The Civil Hospices of Lyons are to pay Mme T. the sum of 12,000 francs plus interest;

Article 4: The Civil Hospices of Lyons are to pay the Caisse malade régionale des travailleurs independants du Rhône the sum of 290,250 francs with interest …

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