Medical law : Lack of information before an operation gives right to compensation

On May 11, 2017, the Paris Administrative Court ruled on the liability of AP HP in a medical negligence case.

The plaintiff had been involved in a motorcycle accident in July 2012, during which his wrist had suffered a complex fracture, requiring urgent surgery, which, for lack of space, was performed two days later at Hôpital Bichat, without the patient having been informed of the risks. In the days following the operation, which involved fitting a locked anterior anatomical plate, the patient complained of severe pain. Despite several consultations during which the patient expressed his discomfort - with the interns at Hôpital Bichat, and then with the surgeon - it was nevertheless decided to keep the device in place, and to prescribe rehabilitation sessions to the patient on several occasions, despite the reservations of the physiotherapist, which however only resulted in aggravation of the pain. Following an X-ray carried out on the advice of the attending physician, the plaintiff had the plate removed at a private clinic, as two screws were coming into contact with the tendons. However, the pain persisted after the operation. Due to a lack of resources, the patient had to return to Bichat Hospital for further tendon surgery. In the absence of any improvement in his state of health, the plaintiff, a deliveryman by profession, was forced to adopt a therapeutic part-time schedule, which considerably reduced his income, in addition to the costly post-operative follow-up of the pain and discomfort he continued to experience.

The claim was for compensation for the financial loss suffered by the patient as a result of alleged medical malpractice (in the incorrect installation of screws and inadequate pain management), the resulting loss of income, and the non-material loss resulting from the lack of information.

The medical expertise ordered by the judge did not find medical fault, insofar as the complex nature of the fracture was such that the risk of complex regional pain syndrome was also incurred in the absence of surgery.

However, the patient was ordered to pay AP HP 1,000 euros in compensation for the lack of informed consent, which must precede any surgical procedure, as well as expert fees and costs. The court did not recognize the loss of chance of refusing the operation, considered as imperatively required and urgent according to the expert's report, at the risk of seeing the patient's condition deteriorate rapidly. The patient thus did not lose a chance to avoid an incurred risk. The administrative court recognized the possibility of the existence of a "moral prejudice of unpreparedness", consisting of the inconvenience caused by not having taken personal measures to deal with the risks involved. However, it was up to the plaintiff to establish the existence of this prejudice.

On the other hand, the administrative court agreed to presume the existence of moral prejudice in respect of the patient's suffering after discovering the risks of the operation, which he had been unable to prepare for.

The Administrative Court has thus given a strict interpretation of article L. 1111-2 of the French Public Health Code, which imposes a duty on healthcare professionals to inform patients of their state of health and possible treatment options, including their implications. Only two exceptions absolve professionals from their duty to inform: urgency or the impossibility of informing the patient. The condition of urgency, alleged here by the hospital, was not met, as the operation had been postponed for lack of space two days after the accident.

This ruling shows that, in addition to compensation for medical malpractice, which is more rarely obtained, patients can hope to obtain financial compensation in the event of medical professionals' failure to comply with their duty to inform, a duty from which they are exonerated only in conditions of strict urgency or impossibility of communicating with the patient. Patients who have been deprived of their right to informed consent prior to an operation can thus claim compensation for the loss they have suffered as a result of unpreparedness, on the one hand because of moral suffering which can be presumed, and on the other because of the inconvenience caused by the impossibility of taking the necessary personal steps in the event of the realization of a risk (inconvenience which must be established by the patient in his or her claim).

Aurélien RACCAH/Diane DE CHARETTE

Sources : Tribunal Administratif de Paris, 6th section, 3rd chamber, X/APHP (Bichat), decision of May 11, 2017, R.G.: 16/06558.