Medical Errors: Understanding, Proving, and Obtaining Compensation

The reality of medical errors in France

In the French healthcare system, renowned for its excellence, thousands of patients are victims of medical errors each year. According to data from the French Directorate General for Healthcare Provision (DGOS), it is estimated that between 40,000 and 80,000 serious adverse events related to healthcare occur annually in French healthcare facilities, a significant proportion of which are preventable.

These errors can occur at various stages of the care pathway: during initial diagnosis, during treatment administration, during surgery, or even during post-operative follow-up. Their consequences range from no significant harm to permanent after-effects or even death of the patient.

Faced with this reality, the French law offers avenues of redress for victims. However, the path to compensation is often complex, fraught with technical and psychological obstacles. This article will explore the different facets of medical errors, understand how they are legally classified, and discover the procedures essential to assert your rights.

I. Typology of the most frequent medical errors

Medical errors can take many forms. Here are the most common categories encountered in compensation proceedings:

1. Diagnostic errors

They represent approximately 25% medical errors and may include:

• Late diagnosis (e.g., cancer not detected at an early stage)
• Misdiagnosis leading to inappropriate treatment
• Failure to prescribe necessary additional tests
• Misinterpretation of test or imaging results

A diagnostic error becomes culpable when a normally competent doctor, placed in the same circumstances, should have made the correct diagnosis. The difficulty often lies in distinguishing between a non-culpable error (related to the limits of medical science) and gross negligence.

2. Therapeutic errors

They concern the choice or administration of treatment:

• Prescription of a contraindicated medication
• Dosage error
• Failure to comply with established therapeutic protocols
• Failure to take into account the patient's medical history
• Lack of information on the risks of treatment

These errors can occur both in hospitals and in general practice, and involve the responsibility of the prescribing doctor but also, in certain cases, that of the pharmacist or nursing staff.

3. Surgical errors

Particularly traumatic, they include:

• Interventions on the wrong organ or side
• Forgotten foreign bodies (compresses, instruments)
• Lesions of adjacent organs not justified by operative requirements
• Preventable nosocomial infections
• Post-operative monitoring failures

The surgical world has gradually introduced verification procedures (pre-operative checklists, “time out” before incision) to reduce these incidents, but they unfortunately persist.

4. Failure to provide information and consent

Although less visible, these failures constitute violations of patients' rights and may justify compensation:

• Lack of information on the significant risks of an intervention
• Failure to obtain informed consent
• Insufficient information on existing therapeutic alternatives
• Failure to respect the right to refuse care

Article L. 1111-2 of the Public Health Code imposes on healthcare professionals an obligation to provide clear, fair, and appropriate information. Failure to comply with this obligation incurs liability, even in the absence of physical harm.

II. The legal framework of medical liability in France

To understand how to establish an error medical, it is essential to master the legal foundations which govern the responsibility of healthcare professionals and establishments.

1. The different liability regimes

Depending on the context, several regimes may apply:

In the public sector (public hospitals):

• Fault-based liability, which requires proving medical error
• Strict liability, applicable in certain specific cases (nosocomial infections, vaccine accidents, etc.)

In the private sector:

• Contractual civil liability of the private doctor (art. 1231-1 of the Civil Code)
• Tort liability for non-consensual medical acts
• The private institution's liability for its own failings

2. Major legislative development: the Kouchner law of March 4, 2002

This law has profoundly transformed the legal landscape of medical liability by:

• Affirming patients’ rights (access to medical records, information, consent)
• Creating the National Office for Compensation for Medical Accidents (ONIAM)
• Establishing a procedure for the amicable settlement of disputes
• Allowing compensation for therapeutic risk (non-faulty but abnormal medical accident)

3. Key concepts for qualifying a medical error

To be legally qualified, a medical error must combine several elements:

• The fault : failure to comply with medical standards, imprudence, negligence or violation of a legal obligation
• The damage : bodily, moral or material damage suffered by the patient
• The causal link : direct and certain relationship between the fault and damage

Case law has clarified that the doctor is bound by an obligation of means (to use all the means at his disposal) and not of results, except in certain specific areas such as biological analyses or sterilization.

III. The 5 essential steps to deal with a medical error

When faced with the suspicion of medical error, a methodical approach is required to preserve your rights and optimize your chances of obtaining compensation.

1. Create a complete and chronological medical file

The medical record is the cornerstone of any medical malpractice action. You must:

• Request your complete medical file with all the establishments and professionals concerned
• Collect chronologically all medical documents in your possession (prescriptions, reports, test results)
• Take detailed notes on the evolution of your condition and conversations with healthcare professionals
• Preserve physical evidence possible (defective medicines, medical devices)
• Obtain written testimonials of people who attended the contested care

The law guarantees you access to your medical records within 8 days for recent information (less than 5 years old) and 2 months for older information. Don't hesitate to send your request by registered letter with acknowledgment of receipt.

2. Seek independent medical advice

To objectively assess the situation, it is crucial to:

• Consult an independent doctor having no connection with the practitioners in question
• Request a descriptive medical certificate detailing your after-effects and their possible origin
• Consider private medical expertise to technically analyze the care provided
• Talk to a medical advisor if you are affiliated with legal protection

This independent opinion will allow you to confirm or deny your suspicions of medical error, and guide you towards the most appropriate approach for your situation.

3. Engage in dialogue with the professional or establishment concerned

Before any contentious procedure, try an amicable approach:

• Request an interview with the doctor concerned or the head doctor of the department
• Request the intervention of the medical mediator of the establishment (mandatory in hospitals)
• Contact the Users Commission (CDU) of the health establishment
• Send a detailed letter stating the facts and asking for explanations

This step sometimes makes it possible to resolve the dispute without proceedings, to obtain technical explanations, or even an acknowledgment of the error which will facilitate subsequent compensation.

4. Refer the matter to the conciliation and compensation bodies

If direct dialogue fails, several instances can help you:

• The Conciliation and Compensation Commission (CCI) : free and non-contentious procedure for serious damages (IPP > 24%, judgment of work > 6 months, particularly serious disorders)
• ONIAM : for compensation for certain medical accidents without fault
• The Defender of Rights : in case of difficulty access to rights
• The Order of Physicians : to report a breach of ethics

Referring the matter to the CCI has the advantage of suspending limitation periods, giving you time to consider legal action if necessary.

5. Consult a lawyer specializing in personal injury law and medical liability

This step, often decisive, should not be neglected. lawyer specialized will be able to:

• Analyze legal feasibility of your appeal and its chances of success
• Determine the competent jurisdiction (administrative or judicial)
• YOU guide on strategy optimal (amicable or contentious procedure)
• Formulate your compensation requests precisely for all your damages
• Represent you in front of insurers professionals and establishments
• Deciphering expert reports often technical and complex
• Anticipate opposing arguments to better counter them

Contrary to popular belief, consult a lawyer does not necessarily mean initiating a lawsuit. On the contrary, its expertise often makes it possible to obtain satisfactory amicable compensation, avoiding the pitfalls of poorly initiated proceedings.

The complexity of medical law and the imbalance of power between an isolated victim and professionals represented by their insurers fully justify this support. In addition, some legal protection insurance cover attorney fees in this type of dispute.

IV. Specificities of proof in matters of medical error

One of the main difficulties in medical malpractice cases is establishing the evidence.

1. The burden of proof and its adjustments

In principle, it is up to the patient to provide proof of medical negligence (Article 1353 of the Civil Code). However, case law and the legislature have modified this rule in certain cases:

• Presumption of fault for nosocomial infections in healthcare facilities
• Obligation of results for certain procedures (biological analyses, provision of prostheses)
• Reversal of the burden of proof for the obligation to provide information

2. The crucial role of medical expertise

Forensic medical expertise often constitutes the decisive moment in a medical error procedure:

• Appointment of an independent expert by the judge or the ICC
• Technical analysis of the care provided in the light of the data acquired from science
• Medical assessment of injuries suffered by the victim
• Establishment of the causal link between the alleged error and the damage

The quality of the expertise determines generally the outcome of the procedure. This is why it is essential to be accompanied by a lawyer and ideally a medical advisor during expert assessment operations.

3. The limitation periods that must be strictly observed

Any medical liability action must respect strict deadlines:

• 10 years from the consolidation of damage for acts in the private sector
• 4 years for procedures performed in a public health establishment
• 10 years for liability action for defective products (prostheses, medicines)

These deadlines may be suspended or interrupted in certain circumstances (minority, referral to a CCI), but their compliance remains a fundamental condition for the admissibility of your action.

V. Compensation for damages related to medical error

The ultimate goal of any action following a medical error is to obtain full compensation for the damages suffered.

1. The various items of compensable damages

French law recognizes numerous types of damage, grouped under the Dintilhac nomenclature:

Financial losses:

• Medical and paramedical expenses
• Loss of professional income
• Third-party assistance
• Accommodation and vehicle layout
• Professional impact

Non-pecuniary damages:

• Temporary and permanent functional deficit
• Sufferings endured
• Loss of amenity
• Aesthetic damage
• Anxiety damage
• Establishment damage

2. Terms of compensation

There are several avenues for compensation that can be taken:

• Friendly settlement with the insurer of the professional or establishment
• Compensation by ONIAM (non-fault accidents or serious nosocomial infections)
• Enforcement of a court decision after contentious proceedings
• Implementation of national solidarity for certain specific damages

Compensation may take the form of a lump sum payment or, for the most serious damages, a life annuity supplemented by an initial lump sum.

3. The appeals of social organizations to anticipate

Compensation for bodily injury also involves taking into account the remedies exercised by:

• The organizations of social security for the reimbursement of benefits paid
• Complementary mutual insurance companies for their own expenses
• The employers for salary maintenance

These appeals, governed by Article L. 376-1 of the Code of social security, are exercised item by item and only on financial damages, but can significantly reduce the net compensation received by the victim.

Conclusion: towards better consideration of medical errors

Medical errors, long taboo in our healthcare system, are now receiving increasing attention from both public authorities and professionals themselves. Preventing serious adverse events, ensuring transparency about incidents, and ensuring fair compensation for victims are major areas for improving our healthcare system.

For patients facing medical error, the path to compensation remains complex, but existing legal mechanisms, when properly utilized, make it possible to obtain fair compensation. Beyond the financial aspect, these approaches also contribute to improving medical practices and preventing future incidents.

Faced with this painful situation, do not hesitate to surround yourself with competent professionals – independent doctors, patient associations and specialist lawyers – to guide you and support you in this often trying but necessary journey for your reconstruction.