Loi « anti-Perruche » : suite et … suite

Abstract

By adopting a heading enTITREd "solidarity towards handicapped people" within the French law dated March 4, 2002 on health reform, the government hoped to put an end to the controversy that ensued after the so-called "Perruche" ruling. Since then, several rulings have been given by administrative jurisdictions and it seems that debate in this area is far from over. The first point developed concerns issues raised about the concept of 'characterized malpractice' introduced under this law, the only type of malpractice that may render a doctor liable. A ruling by the Council of State on February 19, 2003 and two decisions by the Administrative Appeal Courts dated February 19 and April 20, 2004 gave an answer. Recent decisions, namely a ruling by the Council of State dated February 9, 2005, seem to confirm this impression. Characterized malpractice that can render a doctor liable is not gross neglect but rather neglect that is simple, certain and cannot be contested. However, due to its intensity and its proof, this type of neglect is more than just ordinary negligence. The second point discussed is the limitation of parents' compensable hardship attributable to medical malpractice. The law dated March 4, 2002 limited this compensation "solely to parents' hardship" to the exclusion of expenses incurred as a result of the child's handicap. National solidarity, which was intended to absorb this expense, is taking some time to become apparent. The legal decisions given since 2002 have thus brought about a certain level of unease both in public opinion and the legal profession. In June 2003, the Parisian Court of Appeal gave a surprising but apt ruling that may nevertheless bring certain concerns to the surface. To our knowledge, the Council of State has yet to issue an opinion on this subject. Doctors' liability in terms of the birth of child born with a congenital handicap is still a possibility.