La réparation du manquement à l’information médicale : d’une indemnisation corporalisée à la mise en œuvre d’un droit créance

Abstract

An inaccurate information affects the trust that the patient had placed in his/her physician. Does this loss of trust, this feeling of betrayal now within the patient, not account for the non-pecuniary damage that can be compensated as such, regardless of the evolution of the patient's physical condition? Conceived like that, the compensation of the lack of information would then take all its ethical dimension. Another reasoning would consist in linking up the compensation of the bad information to the bodily harm that the patient actually suffered. Following this inclination, the risk has occurred after the victim was deprived of a choice, the choice of running the risk or of choosing another treatment. Consequently, the compensation of the ethical fault will go through the calculation of the chances that the well-informed patient would have had, of avoiding this risk. By a judgement of December 6, 2007, the French Court of Cassation had stated that the only principle that can be compensated following the non-observance by the doctor of the obligation to inform, obligation in view of obtaining the patient's consent, is the loss of chance of avoiding the risk, which eventually occurred. Did this position mean the end of the non-pecuniary damage, replaced by “bodily” compensation of lack of information? After some hesitation, in face of the doctrinal controversy, the Highest Jurisdiction finally adopted a radically different stance, justified in our opinion. By another judgement of June 3, 2010, under analysis, the Court of Cassation has stated that the non-observance of the obligation to inform… necessarily causes a damage to the patient, that must be repaired in all circumstances. This solution, based on the non-contractual liability and the principle of personal dignity, leads to the affirmation of a real fundamental right for the patient. Thus laid down, such a principle has a lot of advantages, but also involves new interrogations.