Tourists, short-term business travelers or a non-French persons residing in France may may become the victim of medical malpractice in France.
Recovery by the victim of medical malpractice in a French private or public hospital and/or by a doctor in France is generally based upon a theory of negligent act or omission causing bodily or other injury.
Medical Malpractice in a French Public Hospital
If the prejudice resulted from services provided in a public French hospital, a claim for an indemnity must first be claim with the hospital. To be most effective, the victim’s legal counsel prepares the filing after the victim has met with the attorney’s consulting physician who has the expert knowledge in the specialty in question.
The public hospital should normally respond within four months. If the public hospital rejects the claim or fails to respond within the four months, the victim has three non-exclusive options:
- bring an action before the the local administrative tribunal,
- seek non-binding mediation,
- file as a civil party to a criminal action.
The advantage and disadvantages of the several options are largely driven by the factual situation and the choices should be made in consultation with legal counsel.
In the event of medical malpractice in a French public hospital, under the French system, the eventual indemnity will be paid out of an official indemnity fund rather than by an insurance company.
Medical Malpractice in a Private Hospital or Involving a Private Doctor or Dentist
If the prejudice occurs in a private hospital or involves a private doctor or dentist, a claim for an indemnity should first be filed with the private insurer. Again, to be most effective, if the victim’s legal counsel prepares the claim after the victim has met with the attorney’s consulting physician who has the expert knowledge in the area in question.
When a French insurance company is involved, it is generally best to conduct settlement negotiations rather than to immediately bring a civil action before the French civil court or in an extreme situation to file a criminal action.
Settling Civil Malpractice Claims with a French Insurance Company in the absence of or prior to Legal Proceedings
Where the liability of the defendant is not at issue and the only issue is the amount of the damages, the French insurance companies and the legal counsel of the victim can under certain circumstances estimate with a reasonable degree of confidence the eventual amount of damages that a French civil court might award.
Under such circumstances, the victim’s legal counsel will make an initial presentation to the insurance company and normally obtain an advance, partial payment (“provision“) within a relatively short time.
Generally once the victim’s condition has stabilized (“consolidated”), the victim’s counsel arranges for his medical expert to examine the victim and then such doctor and the insurance company’s doctor jointly examine the victim. If their evaluations of the physical and mental prejudice (see criteria listed below) are not too far apart, it may be possible to negotiate a settlement which leads to a fair, quicker and less costly solution.Naturally, the search first for a non-litigious solution does not deprive the victim of his right to seek a judicial determination.
Determination of the Amount of the Damages
Generally speaking, the following issues need to be addressed when estimating the monetary amount of recoverable damages, be the issue to be resolved in settlement negotiations or in a legal proceeding:
- Economic Prejudice:
1. lost earnings over life
2. additional expenses (e.g., non-reimbursed doctors’, pharmaceutical, travel accident-related expenses, home assistance, etc.)
- Non-economic prejudice:
1. pain, suffering and loss of quality of life
2. aesthetic damage
3. loss of physical/mental integrity
4. loss of life expectancy
Legal Means of Establishing Damages
France does not have juries in administrative or civil litigation, punitive damages are not awarded, and there is generally no oral testimony at the brief trial before the French Tribunal. Accordingly, the Magistrate will usually designate a neutral medical expert to evaluate the nature of the victim’s injuries and disables. On occasions, a second expert may be designated by the Tribunal to examine certain economic issues by an expert-comptable (Certified Public Accountant) or other expert.
In the event of the designation of a medical expert, the victim will be examined by such expert in the presence of the parties’ respective experts. The parties’ respective legal counsels may also jointly meet with the designated expert and submit written observations and documents. The expert will then either submit to the parties’ legal counsel a preliminary report for comment or simply file his definitive report with the Tribunal. As the expert designated by the Tribunal is neutral, usually the parties point out possible discrepancies but do not seek the designation of a second, independent expert. But, when that does occur, the Magistrate is at liberty to designate a second expert or to decline to do so.
Fees of the Expert
The professional fees of the appointed expert are set by the Magistrate. If the liability of the defendant is not contested or is established in the legal proceedings, the insurance company will generally ultimately reimburse 100% of the fee incurred by the victim. If the victim’s attorney asks for the designation and obtains the designation of a second expert, depending on the conclusions contained in the second report and the Magistrate’s decision, the victim may be required to bear part or all of such second fee.
A decision of the Administrative Tribunal can be appealed.
A decision of the trial civil court (Tribunal de Grande Instance) can be appealed to the Court of Appeals which conducts a complete new retrial. Further appeals to the Cour de Cassations on issues of law, but not issues of fact, occasionally occur.
Victim’s Subrogation Responsibility
If the victim is domiciled outside the European Union in the United States, in Canada or in certain other countries, a substantial portion of his or her medical expenses may be paid by his or her local insurer (e.g., Blue Cross/Blue Shield and/or Medicare). In that event, the medical insurer is generally legally entitled to recover in France (with the victim’s active cooperation) the medical insurer’s payments on behalf of the victim. In doing so, it is exercising its legal right of “subrogation”.
If requested, the victim’s legal counsel can usually facilitate the payment of the subrogation claims at no or very little cost to the victim, since the insurer (e.g., Blue Cross/Blue Shield and/or Medicare) is generally prepared for such attorney to directly receive a portion of the recovered subrogated claim amount.
Author: Jonathon Wise Polier
Avocat aux Barreaux de Paris et de New York
Attorney-at-Law (Paris & New York)