Case:
Bull. Civ. 1995 I no. 159 p. 151 93-13.326 Case Legendre v. CPAM de la Manche
Date:
04 April 1995
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

Given that according to the findings of the courts below M. Mitard, a specialist in afflictions of the ear, nose and throat, was consulted by Mme Renault, who had chronic trouble with both ears, suffering from discharge, poor hearing especially on the left, and occasional vertigo, and proceeded on 2 November 1979 to an operation on the left ear called “total evacuation” and then on 22 May 1981 the same operation on the right; that when Mme Renault remained very hard of hearing on both sides with occasional discharge, more from the left than the right ear, and some imbalance, she sued M. Mitard, principally because he had not warned her of the risk that the two operations might render her even deafer than before, but her claims were dismissed in their entirety by the court below (Rouen, 9 February 1993), hearing the matter afresh after the first decision had been quashed;

Given that Mme Renault criticises the court below for so deciding when, according to her complaint, a doctor must not proceed to an operation which is neither urgent nor necessary without informing the patient beforehand of any known and unexceptional risks and obtaining her consent in writing; that in failing to determine whether M. Mitard had fulfilled fthis obligation the court failed to give its decision any legal basis in view of article 1147 Code civil; again, in treating the affidavits produced by the doctor as coming from “independent” persons and therefore as probative without determining how these persons, who worked with and under M. Mitard, could be independent in giving evidence in his favour, the court once again failed to give its decision any legal basis with regard to the same article; and finally that since it is for the doctor to prove that he informed the patient of the risks involved in the operation and obtained her consent before proceeding with it, the court violated article 1315 Code civil by putting the burden of proof on the patient;

But given, first, that in the absence of particular circumstances not held to exist by the court below, a doctor cannot be required to give his advice in writing; that consequently the court below correctly held, without reversing the burden of proof, that it was for the patient to adduce evidence that the doctor was in breach of his contractual obligation to inform her of the nature of the operation envisaged and of the inherent risks, and was within its sovereign powers in finding that Mme Renault did not produce any such proof; that the decision is thereby justified, and immune to the second criticism which relates to reasoning which is superfluous.

For these reasons, DISMISSES the application for review.

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

Civ 1, 4 April 1995 , Bull no 159 : The solution relating to the burden of proof put forward by this judgment is obsolete since the judgment of the 25 February 1997 , repeated by article L 1111-2 of the Public Health Code (cf supra). As to the absence of a need for writing, proof being capable of being made by any means, and in particular by presumptions (cf Civ 1, 14 October 1997, above), the solution put forward, which had already been found in an identical form in a judgment of the 29 May 1984 (Civ 1, Bull no 179), remains current. Writing remains certainly the best method of proof, as certain judgments of courts of appeal attest (CA Bourdeaux 5 September 2002, CA Paris 4 December 1998), and is required by law in certain specific cases (cosmetic surgery, voluntary termination of pregnancy...). It is nevertheless not always sufficient (CA Paris, 4 December and 20 November 1998: impersonal document listing secondary effects, document handed over to an illiterate patient), the information needing above all to be adapted to the patient.

Translation by Raymond Youngs

 

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