French Medical Malpractice Law and Policy through American Eyes: What It Reflects about Public and Private Aspects of American Law

This article seeks to illuminate medical malpractice law and policy in the United States as well as in France. It analyzes a major reform that France began in 2002, and situates it in relation to American law and policy. I will briefly describe these reforms and then make observations about the American and French legal systems that affect medical malpractice law and policy. My focus is on the interaction between what is considered public and what is deemed private. I organize my comments around several key themes: (1) the relationships among public law, private law, and social solidarity; (2) the relation between civil and criminal law; (3) access to justice and the public nature of expertise; and (4) alternatives to courts and torts. The French reform followed more than a decade of growing dissatisfaction with medical malpractice law and policy. Physicians believed France was drifting toward an American litigious approach to medical problems. They also believed that they were made responsible for compensating injuries when they were not at fault. On the other hand, patients complained that they lacked effective remedies because the high cost of litigation prevented many patients injured due to negligence from filing claims and the long time required for a court decision also led to injustice. Lawyers and policy makers recognized that the legal system was too complex. Patients had to file claims in different courts and were subject to different liability rules based on whether they were treated in publicly owned medical facilities or in private practice. As a result, there were disparities in how the legal system resolved similar claims, which clashed with France’s concern for equality. Furthermore, the public and policy makers felt that something should be done to compensate individuals with serious injuries who bore a heavy burden when no party was legally at fault. In recent years, there were about 2000 medical malpractice suits filed each year. The exposure of insurers has increased over time. Average damage awards were about $180,000 in 2002 but increased to $384,000 by 2007. Two problems galvanized public attention. First, a court decision in the famous Perruche case held a clinical laboratory and physician liable for negligently failing to inform a pregnant woman that due to her exposure to rubella her fetus would be born with congenital defects - thereby depriving her of the opportunity to terminate her pregnancy. Physicians objected to being held liable for wrongful birth, because they were not responsible for the cause of the infant’s congenital defects. Moreover, malpractice premiums were already much higher for obstetricians than for other practice specialties. Second, the rising incidence and cost of noscomial infections began to be perceived as a public health problems, yet hospitals and private insurer believed that they lacked sufficient resources to bear the cost of liability for noscomial infections. The first part of the French reform created a public fund designed to compensate patients experiencing bad outcomes in the absence of fault, and to assume some financial responsibility for medical negligence. The second part of the reform created an option through which patients could seek compensation for certain serious bad outcomes under a state supervised, non-adversarial process.