Since Law No. 2002-303 of March 4, 2002, health professionals working in a liberal capacity and any establishment, service or organization in which individual acts of prevention, diagnosis or care are carried out have the obligation to subscribe to a insurance intended to guarantee them against their civil or administrative liability which could be incurred if, in the course of their professional activity, they cause damage to third parties resulting from personal injury. This obligation is enshrined in article L. 1142-2 of the public health code. If damage is caused, the implementation of the insurer’s guarantee is subject – in particular – to the fact that the first claim is made during the validity period of the insurance contract. The notion of “claim” is therefore fundamental, since it is on it that the insurer’s guarantee and its scope depend, as illustrated by the judgment rendered on February 15, 2024 by the Second Civil Chamber.
In this case, in September 2004, a patient gave birth to a child in an apparent state of death, following a culpable delay in handling the delivery. The child subsequently remains seriously handicapped. In January 2007, the child’s parents applied to the emergency judge for an expert assessment to be ordered. The expert report was filed in June 2009. In February 2012, the child’s parents, acting in their personal name but also as representatives of their minor children, sued the doctor who carried out the procedure for liability and compensation. childbirth. The latter calls on his insurer as well as the CPAM as guarantee.
At first instance, the judges held that the doctor committed a breach during the delivery, at the origin of the various damages suffered, and considered that the insurer owes its guarantee up to the guarantee ceiling provided for in the employment contract. insurance, i.e. up to three million euros per claim. The doctor calls for forced intervention from the Guarantee Fund for damages resulting from acts of prevention, diagnosis or care provided by health professionals practicing in a private capacity.
On March 11, 2021, the Versailles Court of Appeal overturned the first instance judgment. First, she considers that the summons before the judge in 2007 did not constitute a complaint. In reality, the claim would be the summons for liability and compensation, made in February 2012. The court of appeal deduces that the guarantee ceiling was not set at three million, but at eight million. Then, the judges consider that it is appropriate to add, as compensation, 1,530 active hours per year, supposed to correspond to the need for assistance by a third person outside school periods….
2024-02-28 23:26:54
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