The Principles of Medical and Psychiatric Liability in French Law

Abstract

IN traditional US practice, the courts assess medical malpractice actions according to the concepts and rules of tort analysis. In general terms, the injured patient must establish that the defendant physician committed a negligent act or omission in administering medical care to him. More specifically, he must demonstrate, first, that the defendant owed him a duty of care; secondly, that the defendant's conduct fell below the appropriate standard of care (usually expressed as the standard of care of the reasonable physician, with some variation allowed for specialty and geographical area), and, thirdly, that the defendant's alleged negligent act or omission was the proximate cause of the injury sustained by him.x Some prominent US legal scholars,2 however, have criticised the resort to the tort framework in medical malpractice cases, deeming it to be analytically inappropriate for the resolution of dispute arising under the patient-physician relationship. Its application, it is suggested, leads to a misunderstanding of the consensual nature of that relationship.3 For example, recent developments in tort doctrine have encouraged US courts to deploy public policy analysis in personal injury cases, engendering the expansion of the institutional defendant's liability and the full compensation of the injured party.4 According to Professor Epstein, these cost allocation formulae run counter to the contractual nature of the patient-physician relationship: