Given that on 9 July 1988 Mme Y., a gynecologist in attendance at the start of her day’s duties at the Clinique Saint-Michel to which Mme X. had been admitted for the birth of her seventh child, being “aware that the baby was large”, prescribed a dose of syntocinon, a drug designed to regularise and help the contractions, and then at 9 a.m. returned to her surgery, less than two kilometres away, leaving Mme X. under the control of the midwife; that at 10.50 she was recalled by the midwife but could not arrive until 11.05 by which time the midwife, faced with a complicated delivery had, with the aid of a nurse, helped with the birth of the infant who was obviously afflicted with paralysis of the left arm, which persists; that M. X., acting both on his own behalf and as legal representative of his minor son, sued the clinic for breach of its obligation to provide medical services by failing to provide a doctor when needed, and the gynecologist for culpably absenting herself, with the result that the child lost the chance of being born without the handicaps from which it continues to suffer;

On the first ground of application for review:

Given that M. X. criticises the decision for deciding as it did when, according to the complaint, having held that Mme Y. had prescribed syntocinon in the knowledge that the baby, whose mother had frequently given birth before, was large, it did not draw the conclusion, as required by articles 1147 Code civil and L.369 Code of Public Health, that she must have realised that the confinement could be complicated and that she could not be sure of getting back to the clinic in time; and that furthermore in holding that “even if Mme Y. could foresee the birth of a large child it could not foresee the birth of a child so very large as to require supervision until the very moment of birth” the court made an improper distinction and deprived its judgment of legal basis in connection with the texts cited;

But given that the court below, basing itself on the experts’ report, held that even if the gynecologist could foresee that the baby was going to be large there were no pathological indications that she should remain by the side of the parturient or any history suggesting that the confinement would be problematic, and that it could infer that Mme Y. was not at fault in leaving the patient under the control of the midwife, seeing that she herself, working close to the clinic, answered the midwife’s summons without delay;

From which it follows that this ground of complaint is baseless;

But on the second ground of complaint;

In view of article 1147 Code civil;

Given that in dismissing M. X.’s suit against the clinic the decision stated that a clinic is not bound to have an obstetrician permanently on duty in the delivery room and that if a qualified midwife is there to summon the doctor when the birth is imminent, it is not bound to give notice that such service is not assured;

Given that in so holding when the clinic’s contract for the provision of hospital services and treatment requires it to give its patients notice of the services it is able to provide;

For these reasons QUASHES and ANNULS the decision of the Court of Appeal of Montpellier dated 15 February 1995 but only in so far as it dismissed the claim of M. X. against the clinic, and remands the matter to the Court of Appeal of Nîmes.

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

Civ 1, 14 October 1997, Bull no 276: The rule according to which a care institution should inform a patient as to services offered arises within a more comprehensive organisational obligation as to care expended and to information about this, but also as to staff, who should be sufficiently qualified and whose presence (in sufficient numbers) should be capable of being maintained during the periods required by the state of the patients (Civ 1, 15 December 1999, Bull no 351). This rule has been repeated by the lower courts: by a judgment of the 15 October 2002, the Amiens court of appeal has thus accepted the liability of a clinic because of a fault in the management of night emergency teams, emphasising in this case the absence of the obstetrician and the members of the operating team from the premises at the moment of the incident despite the book of welcome mentioning the presence of a complete team available at all hours of the day and night.

Translation by Raymond Youngs

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