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
Medical Expertise
How to Obtain an Expert Opinion?
There are several types of expert opinions, including amicable/insurance expertises, private expertises, and judicial expertises.
1. Amicable/Insurance Expertise
An amicable expertise is generally initiated and funded by the insurance company, at the request (or not) of the victim.
Using this type of expertise can present several practical issues and may compromise your rights. Conflict of interest: There is inherently a conflict of interest when your legal protection insurance and the opposing insurance company agree to organize an amicable expertise for a potential settlement.
Why?
Because the goal of any insurance company is not to protect your interests, but their own. Moreover, in this context, the expert is chosen and paid by the insurer, so they may have an incentive not to be overly generous towards you, ensuring future work from the insurer.
Furthermore, if you’re lucky and offered assistance, it will likely be from a medical advisor chosen by your insurer, someone who works regularly for them. Additionally, if the expert chosen is not specialized, the quality of the expertise could be compromised. All these factors generally lead to a result that is not favorable to you.
The “free” expertise thus comes at a cost.
You should also be cautious before agreeing to an amicable expertise, because if it is considered valid and contradictory, the judge may refuse to grant a judicial expertise later.
2. Judicial Expertise
Judicial expertise is the means to obtain the most impartial expertise possible. In this case, the insurer has no say.
The expert will be appointed by a judge at your request, and the expertise will be carried out under the impartial control of the judge. You have the right to request that the expert be specialized in the relevant field, and you will have the opportunity to be represented by your medical advisor and lawyer.
Key Points:
• The expert’s fees are paid by the losing party at the end of the procedure. However, the expert will request an advance payment before the expertise takes place, unless fault is acknowledged, in which case the advance payment will be your responsibility (covered entirely by legal protection insurance or legal aid if applicable).
• Unlike the amicable expertise, your arguments will be considered and monitored by the judge. Conducting a judicial expertise does not exclude the possibility of a subsequent settlement.
Once the expertise is completed, it is entirely possible to request compensation from the opposing insurer without going back to court.
If accepted, a settlement can take place. The difference is that this time, you will have been defended and advised by a medical expert and lawyer of your choice, and the expertise carried out will have been as impartial as possible.
Conclusion:
• Amicable expertise is often quicker and more affordable but may not be impartial or favorable to the victim.
• Judicial expertise is more reliable, impartial, and legally binding, offering a stronger foundation for your case. Although it requires more time and upfront costs, it ensures that your arguments are properly considered and safeguarded by a neutral authority.
If you are dealing with a medical malpractice claim or any related injury, seeking judicial expertise is generally the best route to ensure you are properly represented and receive the compensation you deserve.