Responsabilité médicale et expertise : de la loi du Talion à la loi Kouchner

Abstract

Despite the appearance from the Mesopotamian era of medical responsibility, an apparent impunity of the doctor will be in place until the 19th century. In France, it will be necessary to wait for the Napoleonic codes of 1804 and 1810 in order to clearly dissociate the civil and criminal responsibilities of the doctor. If liability for fault remains the rule in medical matters today, the concept of liability without fault introduced by the industrial revolution and the legislation on industrial accidents was taken up by the Kouchner law of 2002. It definitively opens the way to a statutory and legal compensation for non-faulty medical accidents under national solidarity via the National Office for Compensation for Medical Accidents (ONIAM) and the Conciliation and Compensation Commissions (CCI). Expertise in medical liability is now the backbone of the victim compensation process. It guides the magistrate in the recognition of faulty or non-faulty medical liability and helps him to set the amount of compensation allocated with regard to bodily injury.