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).
Public hospital liability
Compensable Damages
Compensable Damages
The role of your lawyer, in this case, is to understand your damages, correctly categorize them, and ensure they are appropriately recognized and assessed. The compensable damages have different classifications depending on whether the case is addressed by an administrative judge (public hospitals) or a judicial judge (practitioners and/or private establishments). Before an Administrative Court, the categories are broader and cover all types of damages. These include:
Health Expenses (current and future)
Disability-related costs:
• Assistance by a third party
• Adapted housing costs
• Adapted vehicle costs
• Various expenses
• Medical expert fees (specialists or otherwise) for expert assessments
• Transport costs
• Expenses for non-professional activities (e.g., child care or household work)
• Medical bed equipment costs
• Acquisition of an electric wheelchair
• TV rental and private room costs
• Acquisition of a television
• Vehicle adaptations
• Vehicle damage
• Loss of personal clothing and items
• Transport costs
• Childcare expenses
• Domestic help expenses
• Hiring a professional to replace the victim
• Increased credit costs
• Loss of pension rights
• Medical expert fees for advice
Loss of Income
Professional and Educational Impact of Bodily Injury
Other Expenses Related to Bodily Injury
Personal Damages for the Direct Victim:
• Physical and psychological suffering
• Lack of information (lack of preparation and/or loss of opportunity)
• Fear of imminent death
• Aesthetic injury
• Sexual injury
• Disturbances in daily life
• Temporary functional deficit
• Enjoyment loss
• Establishment loss
• Other disruptions to daily life
• Exceptional damages such as those resulting from a terrorist attack, natural or industrial disaster
• Religious damages
• Exceptional institutionalization damages (placement in an institution, Article 13 of the ECHR)
• Identity or depersonalization injury (loss of bearings)
• Intrafamilial injury
• Humiliation injury (sexual offenses, prostitution, etc.) (up to €50,000)
• Terrorism or collective accident damages
• Other exceptional damages or related to evolving pathologies
For the Heirs (Moral Damages):
• Affectional damages due to suffering, disability, or death
• Lack of preparation damages
For the Heirs (Disruptions in Living Conditions):
• Loss of income, expenses of relatives, funeral costs
• Sexual or establishment damages
• Accompanying damages towards death or disruption of life due to disability
Judicial Categories: “Dintilhac Nomenclature”
Property Damages (before consolidation):
• Pre-consolidation health expenses (D.S.A.C.)
• Loss of professional earnings before consolidation (P.G.P.A.C.)
• Temporary third-party assistance (A.T.T.P.)
• Miscellaneous costs (e.g., medical fees, transport expenses, etc.)
Permanent Property Damages (after consolidation):
• Post-consolidation health expenses (D.S.AP.C.)
• Adapted housing expenses (F.L.A.)
• Adapted vehicle expenses (F.V.A.)
• Permanent third-party assistance (A.P.T.P.)
• Loss of professional earnings after consolidation (P.G.P.AP.C.)
Non-Property Damages (before consolidation):
• Temporary functional deficit (D.F.T.)
• Temporary suffering
• Temporary aesthetic injury (P.E.T.)
• Fear of imminent death
• Moral damages of unpreparedness
• Lack of information injury (loss of chance and/or unpreparedness)
Permanent Non-Property Damages (after consolidation):
• Permanent functional deficit (D.F.P.)
• Permanent suffering (S.E.P.)
• Enjoyment loss (P.A.)
• Professional impact (I.P.EX.)
• Permanent aesthetic injury (P.E.P.)
• Sexual injury (P.S.)
• Establishment injury (P.E.)
• Permanent exceptional damages (P.P.E.) such as those from a terrorist attack or natural disaster
Sexual Injury
• The sexual injury is related to the inability to continue a sexual life or a couple’s relationship.
The “Establishment” Injury
• The establishment injury reflects the loss of hope or a normal chance of starting a family project due to the severity of the disability. This is especially relevant for young victims suffering from severe head trauma. The assessment must be personalized based on the victim’s age.
Juvenile Injury
• Juvenile injury can be evaluated specifically to address lost childhood, lost opportunities, and advocate for maximum compensation in the sovereign judgment of the courts.
Evolving Pathological Injuries (Before Consolidation):
• Damage related to the awareness of an evolving pathology (P.EV.), such as hepatitis C, HIV, Creutzfeldt-Jakob disease, asbestos, etc.
Professional Economic Impact (I.P.EC.)
School, University, or Training Injury (P.S.U.)
Injuries to Indirect Victims (Secondary Victims)
• Indirect Victim Damages in Case of the Direct Victim’s Death
Property Damages:
• Funeral costs (F.O.)
• Loss of income for relatives (P.R.)
• Miscellaneous expenses for relatives (F.D.)
• Transport, accommodation, and meals
Non-Property Damages:
• Accompanying damages (P.AC.)
• Affectional damages (P.AF.)
This extensive list outlines the different compensable damages in cases of medical accidents and bodily injury, with categories ranging from financial losses to emotional and personal suffering. The proper classification and quantification of these damages are vital in securing fair compensation for victims and their families.