French medical malpractice compensation since the act of March 4, 2002: liability rules combined with indemnification rules and correlated with several kinds of proceedings

TABLE OF CONTENTS INTRODUCTION I. UNTIL THE ACT OF MARCH 4, 2002, COMPENSATION FOR MEDICAL ACCIDENTS CAME ABOUT BY INVOKING THE USUAL RULES OF LIABILITY II. THE CONSOLIDATION OF LIABILITY RULES FOR COMPENSATION OF MEDICAL ACCIDENTS AND A NEW RIGHT OF REDRESS FOR BAD OUTCOMES DUE TO INHERENT THERAPEUTIC RISK III. THE CREATION OF A NEW ALTERNATIVE DISPUTE RESOLUTION PROCESS A. The Jurisdiction of Conciliation Commissions B. The Key Role of Experts in Conciliation Commissions 1. The designation of "experts in medical accidents" for medical injuries 2. The choice of experts by the Conciliation Commissions C. The Conciliation Commissions' Powers Regarding Compensation 1. Are Conciliation Commission opinions binding? IV. CONCLUSION SIDEBAR 1: THE CONCEPT OF SOLIDARITY SIDEBAR 2: DATA FROM THE 2010 REPORT OF THE MEDICAL ACCIDENTS OBSERVATORY

INTRODUCTION

The Act of March 4, 2002 (Kouchner Act), (1) aimed to improve the conditions for compensation of medical accidents, taking into account both the interests of patients and the concerns of doctors. The reforms were made possible by advancing the idea that "the existing system was satisfactory neither for the victims, nor for health professionals." (2) Patients wanted to receive better compensation, equal treatment, and more rapid recovery. (3) Health professionals felt that the courts interpreted rules in ways that expanded their liability. They expressed "growing concern" at this development, fearing a derive a l'americaine ("a drift to the United States") and the development of "defensive" medicine, a shift percieved as deleterious to patients' interests. (4)

We must not forget that the rules of civil liability determine who will compensate the injured and, consequently, assume the cost ultimately paid by insurers. In the early 1990s, insurers and health professionals concluded that medical liability rules were administered in a manner too favorable toward injured patients, leading insurers to pay more and more compensation. In the Declaration of October 14, 1992, (5) medical insurers, in conjunction with physician unions and the Presidents of the College of Physicians, observed that, while medicine had become more effective over the last twenty-five years, medical risk had increased significantly in proportion to its effectiveness.

This finding led to a proposal for the distribution of the financial burden of medical accidents according to their relation to medical fault or risk: doctors would be responsible for the mistakes they make, but only in cases of fault. The risk of medical care (whether preventive, diagnostic, or therapeutic) that is not linked to a fault when medical intervention has produced abnormal consequences, is an inherent therapeutic risk and must be compensated by public funds in the name of national solidarity. (6) This demand was expressed in a context in which victims sought compensation for severe damage and consequences in two high-profile areas: (1) the disability of a child born with serious congenital defects not detected by prenatal diagnostic testing, (7) and (2) nosocomial infections (i.e., infections contracted in a medical facility). Because of these claims--brought by both the injured patients and the treating doctors through their insurers--the legislature considered it necessary...