interpreting the provisions related to medical malpractice.2 The French judicial
applications demonstrate how the French judicial system transformed the application
of some traditional theories to new theories relating to civil accountability specifically
in regard to medical accidents and the consequences thereof. These transformations
included:
1) Transformation of cause-effect relationship: Establishing civil liability
requires the establishment of a relationship between the cause of the medical
error and the resulting injury caused to the patient. If the latter fails to
establish evidence that the injury suffered is due to direct medical error, the
judiciary would normally reject the patient’s case. Upholding this condition
deprives victims of medical errors of any right to compensation; this is
especially so since it is usually difficult to substantiate medical errors. The
judiciary, hence, dismissed this condition, and so the cause-effect
relationship is based now on demonstrating one factor of the several factors
that might have contributed to the cause of the injury. The French Court of
Cassation takes into account the theory of reasons, whereby more than one
person is held responsible. This appears to make it even more difficult for
the victim of medical errors to prove who is exactly responsible for the
injury caused to him or her. However, experience has proven that the
number of the persons who might be responsible for an injury decreases to
one person as litigation proceedings progress. For example, after the Paris
Court of Appeal initially held three persons responsible for a medical error,
only one of them turned out to be considered responsible for that error when
the case was brought to the Court of Cassation.3
2) Transformation of the burden of proof: Until March 25 1997, courts
continued to adopt a general rule which stated that the plaintiff should be
charged with the burden of proof. After that date, the French Court of
Cassation changed the rule and placed the burden of proof with regard to
medical errors on the physician, and not the injured patient. It required that
the physician should inform the patient of the therapeutic intervention the
patient would be subjected to, including any associated risks. It issued this
decision in the case of a person who was suffering from stomach pains, and
2
Tharwat Abdulhameed, Redress of Medical Errors: the extent of liability for harmful repercussions of medical
action (Egypt; New University House, 2006), pp. 117-121. Also, Muhammad Hassan Qasim, Proof of Medical
Error, (Egypt; New University House, 2006).
3
Abdulhameed, Redress of Medical Errors- the extent of liabilityfor harmful repercussions of medical action,
(Jordan; Culture House for Publication and Distribution, 2005), pp. 131-132. See also Ahmad Yasin al-Hiari, The
Civic Liability of Medical Physicians in Light of Jordan’s Legal System and Algeria’s Legal System, (Jordan;
Culture House for Publication and Distribution, 2005), pp. 135-140.
2