Surgeon liability based on negligence

In France, surgeon liability is determined by the presence of negligence, not by the outcome of a procedure. Surgeons are required to provide care that aligns with scientific standards, but they are not guaranteed to achieve a specific result. This principle is outlined in Article L1142-1 of the Public Health Code, which states that a surgeon is only responsible for harmful consequences if negligence is proven.

Burden of proof on the patient

If a surgeon causes harm during an operation, the patient must prove that the surgeon was negligent. This typically involves seeking a medical-legal expert assessment. The expert evaluates whether the surgeon’s actions met the required standard of care. This places the responsibility on the patient to demonstrate fault.

Presumption of fault for unrelated injuries

An exception exists when a surgeon damages an organ not involved in the procedure. In such cases, the Court of Cassation presumes the surgeon’s fault, shifting the burden of proof to the surgeon. This applies to injuries like damage to the popliteal artery during a ligamentoplasty or the sublingual nerve during a wisdom tooth extraction.

Limitations on the presumption of fault

Over time, the scope of this presumption has narrowed. The Court of Cassation has ruled that the presumption does not apply if the damage was inevitable due to a patient’s pre-existing condition or if the risk was inherent to the operation. For example, if a complication is a known risk and cannot be controlled, the surgeon may not be presumed at fault.

Proof of surgeon’s direct involvement

The Court of Cassation has emphasized that the surgeon’s fault must be directly linked to the damage. This does not always require identifying the exact mechanism of injury. In a 2023 ruling, the court accepted a conclusion that damage was caused by the surgeon’s act, even if the mechanism was not fully clear.

Non-fault medical accidents and compensation

If a surgeon’s fault cannot be established, the damage may be classified as a non-fault medical accident. In such cases, the injury is seen as a risk inherent to the procedure rather than a result of negligence. Compensation for these accidents is available through the ONIAM, a national organization that provides financial support under specific conditions.