Right to full compensation
Lawyer Bastia - Law firm Bastia - Lawyer Corsica - Bodily injury - Medical liability
In respect of the compulsory medical liability insurance provided for in Article L. 1142-2 of the Public Health Code, In the case of a third party, a summary proceedings summons issued to the insured by the injured party with a view to the appointment of an expert to determine who is responsible for the loss or damage of which the injured party claims to be the victim and to assess the loss or damage, constitutes, within the meaning of article L. 251-2, paragraphs 1 to 3, of the French Insurance Code, the claim to which the insurer's cover is suspended.
I.- Statement of the dispute
1.
According to the judgment under appeal (Versailles, 11 March 2021) and the pleadings, on 6 September 2004, [P] [V] was born in a state of apparent death, as a result of a faulty delay in the delivery of her mother by M., an obstetrician-gynaecologist (the doctor) practising on a freelance basis at the clinic, and therefore has a very significant disability.
2.
Following a writ of summons issued on 26 January 2007, a summary jurisdiction judge, by order of 12 February 2008, ordered an expert appraisal by two experts, who submitted their report on 30 June 2009.
3.
On 16, 17, 20, 22 and 28 February 2012, Mr and Mrs [V], acting on their own behalf and as legal representatives of their minor children [P] and [M], and Messrs [R] and [Z] [V] summoned :
-the doctor, who called in his civil liability insurer,
-Medical Insurance Company Limited (the insurer),
-and the Caisse primaire d'assurance maladie du Maine-et-Loire (the Caisse).
4.
The doctor then appealed against the judgment, which said:
-. on the one hand, In the case of [P] [V], he had committed a breach during childbirth resulting in a loss of chance for [P] [V] to be born without sequelae valued at 70 %,
-. on the other hand, The insurer will be required to cover him for any judgments against him up to the contractually agreed limit of three million euros.
It called on the Fonds de garantie des dommages consécutifs à des actes de prévention, de diagnostic ou de soins dispensés par des professionnels de santé exerçant à titre libéral (Guarantee Fund for Damages Resulting from Preventive, Diagnostic or Treatment Procedures Performed by Self-employed Health Professionals).
II - Means (Right to full reparation) :
The fund contests the admissibility of the plea as new, mixed fact and law.
In its appeal submissions, the insurer argued that the childbirth had given rise to an initial claim before the courts by writ of summons dated 26 January 2007.’summary proceedings was a claim for the sole reason that it was aimed at assessing the damage.
However, the plea, which arose from the judgment under appeal, is therefore admissible.
Merits of the plea
Viewed at Article L. 1142-2, paragraphs 1 and 3, of the Public Health Code, article R. 1142-4 of the same code, as amended by decree no. 2003-462 of 21 May 2003, applicable to the dispute, and Article L. 251-2, paragraphs 1 to 3, of the Insurance Code :
1.-
Accordingly, it follows from the first of these texts that self-employed healthcare professionals are obliged to take out insurance to cover their civil or administrative liability, which may be incurred as a result of damage suffered by third parties and resulting from personal injury, occurring in the context of this activity as a whole.
These contracts may therefore provide for guarantee ceilings. The conditions under which the amount of cover may be capped are set by decree in the Conseil d'Etat.
2.-
According to the second, the ceilings mentioned in Article L. 1142-2 cannot therefore be less than three million euros per claim and ten million euros per insurance year.
3.-
Thus, under the third paragraph, for the risks referred to in article L. 1142-2 of the Public Health Code, Any damage or set of damages caused to third parties for which the insured is liable, resulting from a harmful event or a set of harmful events with the same technical cause, attributable to the insured's activities covered by the policy and giving rise to one or more claims.
A claim is defined as follows
any out-of-court or contentious claim for compensation made by the victim of an injury or his beneficiaries,
-and sent to the insured or his insurer.
Any insurance contract concluded pursuant to Article L. 1142-2 of the same code covers the insured against the financial consequences of claims for which the first claim is made during the period of validity of the policy, regardless of the date of the other constituent elements of the claim, provided that the harmful event occurred in the context of the insured's activities covered at the time of the first claim.
In ruling that the insurer was liable for a maximum of eight million euros, after stating that insurance policies covering medical liability must be taken out on a claims basis, the court held that the writ of summons dated 26 January 2007, which referred the matter to the interim relief judge with a view to organising an expert appraisal, was not a claim within the meaning of the law. Article L. 251-2 of the Insurance Code since it did not seek compensation for damage but to determine who was responsible for the child's after-effects and to assess his damages.
III - Solution adopted by the Cour de cassation (Right to full reparation) :
In so ruling, whereas in matters of compulsory medical liability insurance :
-the summons for summary proceedings issued to the insured by the injured party, with a view to appointing an expert. This was for the purpose of determining who was responsible for the damage of which the injured third party claimed to be the victim and to assess the losses,
-constitutes the claim on which the insurer's cover is conditional,
the Court of Appeal, which did not draw the legal conclusions from its findings, therefore violated the aforementioned texts.
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