Recognition by French courts of compensation for post-vaccination multiple sclerosis: the consequences with regard to expert practice

Over the past few years, despite scientific uncertainties, French courts have awarded compensation to sufferers of multiple sclerosis (MS) which occurred following vaccination against hepatitis B. These legal decisions have aroused fierce criticism in the medical world. Both a judgment given on 25 May 2004 by the Court of Cassation and a new publication in the journal Neurology have encouraged us to look once more at this controversial issue. French judges began compensating patients with MS at the end of the 1990s. One of the first judgments was given in 2001 by the Court of Appeal of Versailles when a pharmaceutical laboratory was held liable for the onset of MS following vaccination against hepatitis B. On appeal, the Court of Cassation overturned the judgment in September 2003, finding that the Court of Appeal judges had based their decision on a hypothetical causal link. However, the only reason why the Court of Appeal judgment was quashed was the contradictory evidence on which the judges had based their presumptions. Several of the judgments given since that date seem to confirm this hypothesis. On 25 May 2004, the 2nd civil law chamber recognized that MS which occurs following a vaccination against hepatitis B (a vaccination carried out for work-related purposes) could be considered as an accident at work, without questioning the possible causal link between the illness and the vaccine. This jurisprudence in the matter of hepatitis B vaccination shows the need for great care in expert practice. Effectively, when confronted with drug related imputability, the expert usually bases his reasoning on three points: the causal role of the generating factor, the chronology and other causes of damage. In terms of MS, all these factors are modified. More than ever, an expert must, in terms of imputability, be objective, prudent and clear in his conclusions.

Healthcare law in France: towards healthcare emancipation for minors

In France, since 1974 the rights of minors have been gaining ground. The first provisions to this end concerned medical acts in relation to the minor's sexuality (contraceptives and pregnancy termination). The law dated March 4, 2002, relating to patients' rights, gave more scope to this movement, by widening minors' rights so that they could demand confidentiality with regard to their parents. The minor's exercising of these rights can pose a lot of problems. In French law, parental authority is the main representation of the minor. The medical doctor treating a minor must obtain parental authorization. However, the public healthcare code provides that the doctor can override parental wishes during some situations (emergency; parents refuse). But these situations are exceptional. Since 2002, the legislator has gone further, by allowing the doctor to grant requests for care by the minor without parental authorization. However, parental authority remains the normal framework for the protection of a minor. The doctor will have to judge the reasoning and motives of a minor requesting confidentiality regarding their parents in order to decide whether he should grant or refuse care in such conditions.

[More on compensation of the handicapped child]

By adopting a heading enTITREd "solidarity towards handicapped people" within the French law dated March 4, 2002 on health reform, the government hoped to put an end to the controversy that ensued after the so-called "Perruche" ruling. Since then, several rulings have been given by administrative jurisdictions and it seems that debate in this area is far from over. The first point developed concerns issues raised about the concept of 'characterized malpractice' introduced under this law, the only type of malpractice that may render a doctor liable. A ruling by the Council of State on February 19, 2003 and two decisions by the Administrative Appeal Courts dated February 19 and April 20, 2004 gave an answer. Recent decisions, namely a ruling by the Council of State dated February 9, 2005, seem to confirm this impression. Characterized malpractice that can render a doctor liable is not gross neglect but rather neglect that is simple, certain and cannot be contested. However, due to its intensity and its proof, this type of neglect is more than just ordinary negligence. The second point discussed is the limitation of parents' compensable hardship attributable to medical malpractice. The law dated March 4, 2002 limited this compensation "solely to parents' hardship" to the exclusion of expenses incurred as a result of the child's handicap. National solidarity, which was intended to absorb this expense, is taking some time to become apparent. The legal decisions given since 2002 have thus brought about a certain level of unease both in public opinion and the legal profession. In June 2003, the Parisian Court of Appeal gave a surprising but apt ruling that may nevertheless bring certain concerns to the surface. To our knowledge, the Council of State has yet to issue an opinion on this subject. Doctors' liability in terms of the birth of child born with a congenital handicap is still a possibility.

Refus de soins du patient, le problème épineux des témoins de Jéhovah

The principle of respecting the patient's wishes is an international medical principle, found in several texts. In France, it was recalled in the 1994 Civil Code concerning bioethical laws and has recently been included in the Public health Code (law concerning patient's rights dated March 4, 2002). According to these various texts, the patient's wishes must always be respected, even in life threatening cases, so long as the patient has been informed of the risk. The refusal by Jehovah's witnesses to receive blood transfusion is always a problem. When, in full consciousness, a patient refuses a blood transfusion that his life depends on, what should the physician do? In June 1998, the Paris Court of Appeal ruled on this case. The judges found that "the obligation of the physician to always respect the wishes of the patient.is limited by the other obligation of the physician (the basis of a physician's activity) which is to protect the health and life of that same patient". In October 2001, the State Council ruling on this particular case found that, given the critical conditions of this case and the absence of a therapeutic alternative, the physicians had not committed an error. But it was also clearly underlined that a physician must respect the wishes of the patient and that this obligation must not be superseded by the duty of saving a life, thus disputing the judges of the Court of Appeal. Two questions. Two emergency interim rulings confirmed the position of the judges: the non-respect of the patient's wishes is an infringement of individual freedom. It is only in extreme and clearly defined circumstances that the physician will not be punished for this offence. This raises two questions: can a physician treat a patient against his/her wishes? And what risks does the physician take when respecting the patient's wishes when his/her life is at stake?

Patients refusing medical attention: the case of Jehovah's Witnesses in France

Respect for the wishes of a patient is internationally accepted as standard medical practice. In French law, this principle is enshrined in the Civil Code of 1994 which concerns bioethics. More recently in 2002, we find it included in the Code of Public Health (in the law concerning patient's rights). According to these texts, the patient's wishes must always be respected even when his life is at stake, so long as the patient has been informed of the risk. The refusal by Jehovah's witnesses to receive blood transfusion always poses a problem. When, in full consciousness, a patient refuses a blood transfusion his life depends on, what should the doctor do? In June 1998, the Paris Administrative Court of Appeals ruled on such a case. The judges found that. In October 2001, the State Council decided in this particular case, that given the critical situation and the absence of a therapeutic alternative, the doctor had not committed an error. But it also clearly reiterated that the doctor is required to respect the wishes of the patient and that this obligation does not override the duty of saving a life. Two emergency interim rulings by the Lille Administration Court (25th August, 2002,) and by the State Council (6th August, 2002) confirm the position of the judges. Not respecting the patient's wishes is a great infringement of individual freedom. The doctor will not err only under extreme and precise conditions. Should the doctor go against those wishes? Should the wishes of the patient be respected when their life is at stake? The authors will discuss these two questions.

Fatal blunt pancreatic trauma secondary to assault and battery: a case report

The authors report on an fatal case of closed trauma of the pancreas in a context of violence. A 55-year-old man was found unconscious on the sidewalk and died a short time after being taken to the hospital. He had been hit with several punches to the face and abdomen 6 h before. The post-mortem examination showed numerous bruises over the whole body, a haemoperitoneum, a fissuration of the spleen and a massive peripancreatic haemorrhage associated with a complete dilaceration of the pancreas head. Histological examination of the pancreas revealed a massive necrosis associated with a subtotal disappearance of the acini, numerous sites of cytosteatonecrosis and a large haemorrhagic suffusion of the peripancreatic tissue. This case illustrates the possibilities of pancreatic injuries induced by blunt force aimed at the abdomen in a context of violence. Even if this occurs as an isolated injury it can result in rapid death because of the particular type of pancreatic fracture which is frequently involved. In postmortem situations, the pancreas should be systematically checked at necropsy and a histological examination should be carried out at the slightest doubt of a pancreatic lesion or suspicion of blunt force abdominal injuries.

[The obligation of means and the obligation of results]

Several important decisions were made in 2000 concerning the proof of malpractice and the fundamental principles of medical responsibility. In order to guarantee indemnities for victims of medical accidents, the French courts have facilitated the implication of medical responsibility for medical accidents. The notion of a "virtual fault" was developed allowing the courts to retain the responsibility of the surgeon for instance for injury to the sublingual nerve during extraction of a wisdom tooth or for injury to the popliteal artery (March 23, 2000). These decisions not only facilitate the demonstration of malpractice but also modify the definition of responsibility, all physicians being required to use all available means. Likewise, although jurisprudence asserts that a safe result is mandatory in certain areas, the essential obligation is the absence of "fault" and not the result despite the disquieting arguments put forward by the Paris appeals court in its January 15, 1999 decree. The patient's right to a result was sustained only in well defined areas.

[Medical civil responsibility in the year 2000]

In France, during the last year, important jurisprudence was established by the French Supreme Court of Appeal concerning the physician's civil responsibility. On october 7, 1998, the Court decided that "the physician is not exempted for the obligation to provide information by the simple fact that these risks only materialize exceptionally". This means that from now, the physician must inform the patient of all risks that might influence the patient's decision, particularly information concerning life-threatening or severe consequences, but also, as in the past, concerning frequent even benign consequences. The limits of this jurisprudence and the completeness of the information, as established in 1998, are emergency, patient refusal and impossibility to inform the patient. In the decree of May 23, 2000, the Court gave its definition of impossibility to inform the patient, thus establishing the "therapeutic limits". But the judges recognized that the requirement for information delivery is independent of the necessary or unnecessary nature of the therapeutic act. However, in the decree of June 20, 2000, the Court established the conditions for awarding indemnities for defective information delivery. Defective information delivery is not sufficient in itself to constitute a civil offense. Real damage is also necessary. To be awarded with an indemnity, the patient must prove that the lack of information affected his/her decision to consent. If it appears that even if he/she had been well informed, the patient had consented to the care given, the physician would not be obliged to provide the patient with an indemnity. The judges want to find a compensation and make the proof easier for the patient. They accept the potential fault when an organ was injured in the course of an operation. But, these decisions concern the proof and they don't modify the medical responsibility. The physicians have got a duty to use reasonable skill and care and they don't have any obligation to achieve a certain result. Sometimes, the physician has got an obligation to achieve a certain result but it isn't a general rule (November 08, 2000).

[Intra-familial graft. Respecting public health regulation and professional confidentiality may be incompatible]

Under specific conditions, French law authorizes organ donation despite the donor's seropositivity for certain infectious conditions. The recipient must however be informed of the potential risk of graft-related infection. Anonymous donation being the rule, the rights of the donor are respected since his/her serological status remains a medical secret. However, an exception to the rule of anonymous donation is allowed for organ donation between family members. In such a situation--often justified by the urgent nature of the transplantation--the donor's serological status would have to be revealed to the recipient, breaking the rule of medical secrecy. The physician who breaks the rule is simply implementing legal regulations (with the subsequent protection against any penal or disciplinary measures) but nevertheless performs an ethically questionable act. The recompense for donation would be an incongruent violation of personal rights. At the present time, there does not appear to be a satisfactory solution to this dilemma. The only solution that could be put forward would be to ask the donor to voluntarily inform the recipient of his/her seropositivity.

[Patient information: management in the beginning of the XXIth century]

The Conseil d'Etat, the supreme jurisdiction on legislative matters in France, rendered its decree on January 5, 2000, founding its decision on jurisprudence established in 1997 and 1998 by the supreme Court of Appeals. In accordance with this decision, physicians have a legal obligation to inform patients of all possible risks, including very exceptional risks. The information may be given to the patient in any appropriate form. Proof that information was delivered to the patient is incumbent upon the physician. When proof of information delivery is provided, any injury compensation can only be awarded on the grounds of ill-fate. We conducted an objective review of the jurisprudence on patient information and report the three basic aspects observed in the current situation in France. In application of the Court of Appeals judgments of February 25, 1997 and October 14, 1997, proof of delivery of information to the patient is incumbent upon the physician. The question is whether the physician must retain written documents as necessary proof against future claims. The answer to this question is not straightforward. A written document is not the only proof accepted by the court and could even be of debatable legal value if used inappropriately. The solution retained by the Conseil d'Etat is a good example. The real debate concerns the information content. It now appears that the physician is required to inform his/her patient of all risks susceptible of influencing the patient's decision, particularly serious or life-threatening risks, but also, and most certainly, risks that in the past have been considered frequent but benign. Finally, the judges recall that failure to provide information does not in itself assert the physician's civil responsibility, proof of real damage is also needed. But the reality of damage (ill-fate) depends on the reality of the choice open to the patient had he/she been informed. And the true nature of the choice open to the patient is simply the expression of the dispensable or indispensable nature of the envisaged act. One could say the old adage primum non nocere is making a comeback.

[Medical risk and liability in stomatology in the year 2000]

In the current context of scientific progress, the evolution of medical liability is directly related to the increasing potential danger of medical procedures, the widening field of medical intervention, the growing concern about becoming a victim, and the changing notions about responsibility. We present here recent changes in administrative and legal jurisprudence. As administrative instances have progressively acquired more and more freedom of action, they have successively accepted hypotheses of presumed misconduct, abandoned the prerequisite of major misconduct, and allowed cases of liability without misconduct. The attitudes of legal instances remained unchanged for a long period before developing the concept of lost opportunity, then the presumption of misconduct in the case of nosocomial infections, and more recently, the notions of prejudice resulting from lack of information and the obligation for safe outcome accessory to the obligation to use available means. The future remains quite uncertain. One can expect a convergence between administrative and judiciary judges. For many, this unification will lead to a desirable "block of competency". We are probably moving towards the notion of objective responsibility which would allow indemnities to be awarded for medical accidents, but leaving open the possibility of court action for misconduct. The question remains open concerning the modalities of implementation: legislation or jurisprudence with its inherent risks.

Anatomical basis and results of the facial artery musculomucosal flap for oral reconstruction

The facial artery musculomucosal (FAMM) flap is a newly designed buccal mucosal flap that was first described in 1992. The long rotational arc of this flap is particularly suitable for anterior palatal defects that are otherwise difficult to treat with local flaps. However, after the first clinical reports, some controversies arose about the reliability of this flap, so we conducted an anatomical study of the vascular pattern with a latex preparation in 10 cadavers. We studied the variations of the course of the facial artery and focused on the relationship between the facial artery and vein within the pedicle. We concluded that the flap is more an arterialized flap than an axial-pattern flap, and have given anatomical landmarks to optimize the survival rate. Our preliminary clinical results (five good results, one complete failure) are acceptable.

[Selected indications of embolization of vascular malformations of the face. Apropos of 2 cases]

Interventional radiology has dramatically contributed to a better management of patients with a facial vascular malformation. Due to the extent of the lesion, these patients were formerly difficult to cure, but hyperselective embolisation can now overcome these problems with minimal risks. We present our therapeutic approach in 2 cases with favorable results and the choice of an embolization particle is discussed according to recent datas.

[Shaken baby syndrome]

The shaken baby syndrome is a relatively recent concept concerning mishandled children and characterized by cerebral lesions (subarachnoid haemorrhage, oedema, axonal injuries). A case is reported of a 11-month-old female infant, who was admitted in a paediatric intensive care unit with clinical signs of brain death after cardiopulmonary resuscitation. The CT scan showed subdural haemorrhage. Pathological examination confirmed the major blunt head trauma. The father admitted that he had shaken his daughter as "she cried too often". The mechanism of the lesions is a combination of several factors, especially the large size of infant's head and the weakness of the neck muscles. It is possible to recognize still in the perinatal period children at risk of mishandling, allowing an efficient prevention of the shaken baby syndrome.