Public hospital liability
PUBLIC HOSPITAL RESPONSIBILITY
A doctor practicing within a public hospital is not personally liable for harm caused to a patient due to their fault.
Indeed, the doctor acts as a public service agent, and the patient is considered a user of a public service. As such, only the public healthcare institution can be held liable.
If, however, the doctor commits a personal fault separate from their official duties, then civil liability may apply — but only in such cases.
A personal fault separate from official duties is defined by case law as a particularly serious fault that cannot reasonably be attributed to the normal functioning of the public service. This includes, for example, a fault committed with intent to harm, for personal gain, or a blatant breach of professional ethics.
Since the law of March 4, 2002, the administrative liability of public healthcare institutions can be invoked under Article L1142-1 of the Public Health Code, just like the liability of private healthcare professionals and institutions. Therefore, apart from the exceptional cases provided for in Article L1142-1, the administrative liability of a public healthcare institution can only be established if the patient provides proof of a fault, a damage, and a causal link between the two.
A medical expert assessment will be required to establish this fault. In principle, no judge will rule on medical liability without first obtaining the informed opinion of a qualified medical expert.
The competent courts for handling administrative liability of public healthcare institutions are:
• the Administrative Court at first instance,
• the Administrative Court of Appeal,
• and, if necessary, the Council of State (Conseil d’État).
PUBLIC HOSPITAL RESPONSIBILITY
PUBLIC HOSPITAL RESPONSIBILITY
A doctor practicing within a public hospital is not personally liable for harm caused to a patient due to their own fault.
Indeed, the doctor acts as a public service agent, while the patient is considered a public service user. Therefore, only the liability of the public healthcare institution can be engaged.
However, if the doctor commits what is known as a personal fault separable from their duties, they may then incur personal civil liability—but only under those specific circumstances.
A personal fault separable from official duties is defined by case law as a particularly serious fault that cannot reasonably be attributed to the functioning of the public service. Examples include misconduct committed with intent to harm, for personal gain, or a fault that is inexcusable under professional ethics.
Since the law of March 4, 2002, the administrative liability of public healthcare institutions may be invoked under Article L1142-1 of the Public Health Code, just like the liability of private professionals and institutions. Therefore, except in the exceptional cases mentioned in Article L1142-1, the administrative liability of a public healthcare institution can only be engaged if the patient proves the existence of a fault, a damage, and a causal link between the two.
A medical expert assessment will be required to establish such fault. In principle, no judge will rule on medical liability without first obtaining the opinion of a qualified expert.
The competent courts for hearing administrative liability cases involving public healthcare institutions are:
• the Administrative Court (first instance),
• the Administrative Court of Appeal,
• and, if necessary, the Council of State (Conseil d’État).
Public hospital liability
PUBLIC HOSPITAL RESPONSIBILITY
A doctor practicing within a public hospital is not personally liable for harm caused to a patient due to their own fault.
Indeed, the doctor acts as a public service agent, and the patient is considered a user of a public service. As a result, only the public institution’s liability may be engaged.
However, when the doctor commits what is known as a personal fault separable from their duties, they may then incur civil liability, but only in such cases.
Case law defines a personal fault separable from official duties as a particularly serious fault that cannot reasonably be attributed to the normal functioning of the service. This includes, for instance, a fault committed with intent to harm, for personal interest, or one that is inexcusable under professional ethics.
Since the law of March 4, 2002, the administrative liability of public healthcare institutions may be engaged under Article L1142-1 of the French Public Health Code, just like the liability of private professionals and institutions. Outside of exceptional circumstances provided for in Article L1142-1, the administrative liability of a public healthcare institution can only be established if the patient proves the existence of a fault, a damage, and a causal link between the two.
A medical expert assessment is required to demonstrate this fault. In principle, no judge will rule on medical liability without first obtaining the informed opinion of a qualified expert in the field.
The courts competent to hear cases involving the administrative liability of public healthcare institutions are:
• the Administrative Court at first instance,
• the Administrative Court of Appeal on appeal,
• and, if applicable, the Council of State (Conseil d’État).
UNDERSTANDING THE CCI
Choosing the CCI route?
As a victim, you may have considered going through the CCI. Whether it was suggested by a friend, an article online, a doctor, a patient representative, or another lawyer highlighting the benefits of a free procedure, you’ve probably thought about it. Before making that decision, it’s essential to fully understand what’s at stake in the process.
What is the CCI?
The CCI is the Commission for Conciliation and Compensation for medical accidents. Chaired by a magistrate, these commissions also include representatives of patients, healthcare professionals, healthcare institutions, insurers, ONIAM (the National Office for Medical Accident Compensation), and other qualified individuals.
It’s important to know that out of 12 members, only 3 represent patients.
According to Decree No. 2014-19 of January 9, 2014, the 12 members include:
• 3 user (patient) representatives,
• 1 hospital-based practitioner,
• 1 representative of private healthcare professionals,
• 1 representative of public healthcare institutions and 2 from private institutions,
• the director of ONIAM or their representative,
• 1 representative from insurance companies,
• and 2 qualified individuals in personal injury compensation.
The CCI commission is therefore not neutral, since the majority of its members represent the opposing parties (hospitals, insurers, ONIAM).
It’s also important to understand that once an expert report has been issued by the CCI, it is very difficult to obtain a judicial expert report afterward.
In addition, expert assessments conducted through the CCI differ significantly from those in judicial proceedings and are much less likely to uphold the principle of adversarial debate.
In judicial proceedings, the expert’s report is sent directly to the parties involved. Depending on the complexity of the case, both parties can respond with written comments and questions. The expert must then take these into account and respond to them in the final report submitted to the judge.
At the CCI, it works quite differently. You cannot submit any comments or objections after receiving the expert’s report. The expert sends the report directly to the CCI, which then forwards it to you along with a meeting notice and an opportunity to submit brief observations.
However, the expert is not required to respond to these observations. It is also essential to understand that the expert chosen is not necessarily a judicial expert, and their compensation is based on a limited fixed fee, covered by ONIAM (the National Office for Medical Accident Compensation). As such, the assessment is not entirely independent.
So while the procedure may appear free, this comes at a cost.