Case:
Bull. Civ. 1999 I no. 250 p. 202 Case Laurent v. CPAM de la Haute-Vienne
Date:
15 June 1999
Note:
Translated French Cases and Materials under the direction of Professor B. Markesinis and M. le Conseiller Dominique Hascher
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

In view of article 1147 Code civil:

Given that a doctor is bound to inform his patient in a candid clear and appropriate manner of any serious risks involved in the treatment proposed, whether investigative or curative, even of risks which only rarely occur, the sole exceptions being where the treatment is urgent, where it is impossible to give the information or where the patient refuses to listen to it;

Given that the decision below must be quashed for holding that though there was a risk that the drugs might cause serious damage to the patient’s ear the defendant surgeon was not at fault in failing to inform him, given that the risk was slight and the surgeon wanted to avoid worrying the patient;

For these reasons which render it unnecessary to consider the other grounds of application for review,
QUASHES the decision of the Court of Appeal of Limoges on 12 June 1997 … and remands the matter … to the Court of Appeal of Poitiers.

Civ 1, 15 July 1999 :The formula according to which "Except in case of urgency, impossibility or refusal by the patient to be informed, a doctor is required to give him information which is honest, clear and appropriate on the serious risks relating to the investigations and treatment proposed, and the doctor is not exempted from this obligation by the mere fact that a serious risk of this kind only arises exceptionally", already used in identical form in two judgments of the 7 October 1998 (Civ 1, Bull nos 287 and 291), has been repeated in two judgments of the 9 October 2001 (Civ 1, Bull nos 249 and 252). The Law of the 4 March 2002, modifying article L 1111-2 of the Public Health Code, has come to make clear the scope of this obligation, which provides in particular for information as to "frequent or serious risks which are normally foreseeable" which the various treatments proposed entail: one may therefore (cf Sylvie Welsch, "Responsibilité du médicin" (Liability of the Doctor), Litec, 2003, nos 144 and 145) wonder whether the need decided by the case law for information about the exceptional risks should be maintained, the formula accepted by the legislator seeming to exclude this category of risk. However, the author notes that "a serious foreseeable risk can undeniably assume an exceptional character" and that the lower courts seem to continue to apply the former case law of the Cour de cassation on the obligation to inform as to exceptional risks (CA Poitiers, 16 April 2002, Besançon, 19 June 2002, Riom, 27 June 2002, Toulouse, 14 October 2002, Agen, 18 December 2002). The Cour de cassation, by a judgment of the 13 November 2002 (Civ 1, Bull no 265), seems moreover to maintain this case law implicitly.

Translation by Raymond Youngs

 

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