Given that while Mme X was undergoing, at the hands of Dr. Y, a cosmetic surgeon, an operation under anaesthetic for the removal by liposuction of excess abdominal fat, the necessary incisions proved more serious than Mme X had been warned of, that the scars got infected and healed poorly, causing complications, and that the decision under attack (Papeete, 12 October 1995) granted Mme X damages on the ground that Dr. Y had not given his patient the information which it was his duty to provide;

Given that a doctor is under a special duty to keep his patient informed and that it is for him to prove that he has done so, the first complaint, that the burden of proof was reversed, is accordingly baseless;

Given, furthermore, that since the information to be given in respect of cosmetic surgery and treatment must cover not only any serious risks involved but also all possible resultant difficulties, the court below was entitled to hold, without imposing on the doctor an obligation de résultat, that he should have told Mme X that he might need to make two incisions and not just one.

For these reasons, DISMISSES the application for review.

This note on subsequent developments reflects the legal situation as of March 2004.

Civ 1, 17 February 1998 , Bull no 67:

a) Doctors who are obliged to provide information to patients should bring proof that this obligation has been fulfilled: see note under Civ 1, 27 May 1998 : this solution repeats that expressed by the judgment of the 25 February 1997 , maintained since by the case law and from now on integrated in article L 1111-2 of the Public Health Code. The case law has furthermore specified that the fact that the patient has asked for the treatment did not have the consequence of reversing the burden of proof (Civ 1, 27 May 1998 op cit), and that (Civ 1, 6 June 2000, Bull no 176) this obligation should be assessed at the date of the treatment, in accordance with the findings of science at this time.

b) As far as medical and surgical operations with a cosmetic purpose are concerned, the obligation to provide information should focus not only on the serious risks of the operation, but also on all the disadvantages which can result from it. As early as 1981 (Civ 1, 22 September 1981, Bull no 268) the Cour de cassation endorsed a statement by a court of appeal that as far as cosmetic surgery is concerned "the surgeon has a particularly rigorous obligation to provide information to his patient, whom he should not expose to a risk which is out of proportion to the advantages expected". The solution put forward by the judgment of 1998 has been reiterated by the Law of the 4 March 2002 , thus confirming the extensive character of the information which should be provided to the patient in respect of cosmetic surgery. Article L 6322-2 of the Public Health Code provides from now on that as far as cosmetic surgery is concerned, the patient should be informed "of the circumstances of the operation, the risks and the possible consequences and complications", without specifying the nature of the risk (serious, exceptional, frequent ... or not).

Translation by Raymond Youngs

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