Victim of medical negligence?
What to do, what your rights are regarding compensation and how to go about it
Guide and essential questions before taking any action.
Guide and essential questions before taking any action.
1. I think I have been the victim of a medical error: what should I do?
Do not immediately try to find out who is responsible: start by preserving your medical file, having your after-effects recorded and, if necessary, getting a second medical opinion.
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If you think that a medical intervention, diagnosis, treatment or care management has caused harm, the first step is to gather the information to understand what really happened.
Claim your complete medical record from the doctor or healthcare facility concerned. It may notably contain surgical reports, test results, prescriptions, medical correspondence, monitoring charts and discharge summaries. The medical file is an essential piece of evidence when a claim for compensation is being considered.
If your state of health so warrants, you should also consult another doctor to obtain an independent opinion. This is not about seeking fault at all costs, but rather about understanding the origin of your complications and any potential medical solutions.
Keep all documents relating to the aftermath as well: sick notes, invoices, treatments, travel expenses, home help or psychological counselling.
Finally, do not sign a document proposed by the institution or its insurer too quickly. Before accepting a compensation offer, it is best to have your file reviewed.
2. How can you tell if it is genuinely a medical error?
Harm following medical care does not automatically mean a fault has been committed: only a medical and legal analysis generally makes it possible to distinguish between a fault and a medical accident or complication.
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The term «medical error» is commonly used, but it covers very different situations.
A healthcare professional may have committed an fault in diagnosis, treatment, patient information or the performance of a procedure. However, harm can also occur even when care has been correctly delivered.
This may notably involve a known complication of the treatment or a non-fault medical accident, sometimes called medical misadventure.
This distinction is fundamental because the compensation mechanisms are not the same. In the event of fault engaging the liability of a professional or an establishment, their insurer may be required to compensate the victim. In certain situations involving a non-fault medical accident meeting the legal conditions, compensation under national solidarity may be provided by ONIAM.
Medical expertise therefore plays a central role. In particular, experts examine the circumstances, causes and extent of the damage and look into the possible existence of fault or treatment risk.
3. What are my rights in the event of a medical error?
You have the right, inter alia, to access your medical records, to be informed about your care and the circumstances surrounding your injury, and, where the conditions are met, to seek compensation for your losses.
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The patient has several rights when harm occurs during healthcare.
The first is being able to understand what happened. The Ministry of Health points out that the patient can ask for explanations and has various avenues of recourse when they feel they have suffered harm or a failure in their care.
You can also access your medical record. This often forms the essential basis for analysing the quality of your care.
You can then dispute the level of care or seek compensation. Several avenues exist: a complaint to the facility, mediation, proceedings before a CCI, action in a civil or administrative court, or even criminal proceedings where an offence is likely to be established.
Finally, disciplinary proceedings can be brought before the relevant professional body. Be careful, however: disciplinary proceedings do not have not as a main purpose to compensate the victim.
Frequently asked questions
Can I request my medical record from the hospital or doctor?
Yes, you have a right of access to your medical records and this is often the first step to take when care-related harm needs to be analysed.
Should I ask for a second medical opinion?
Yes, a second opinion can be particularly useful when you have unexplained after-effects, when the explanations given do not convince you, or when you are considering a procedure.
4. Can I sue my doctor?
Yes, a doctor can be held liable when a fault that caused harm is established, but a poor medical outcome is not enough to demonstrate fault.
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A doctor's liability may be sought when an error in care has caused harm to a patient.
Depending on the circumstances, this may involve a misdiagnosis, poor management, a technical error, a lack of information or a failure to meet certain professional obligations.
However, the mere fact that a treatment has not produced the expected result does not mean that the doctor has committed a fault. It is precisely for this reason that a medical analysis is essential.
The way forward also depends on the professional's status and the nature of the recourse contemplated. A civil action, proceedings before a CCI or, in certain situations, criminal proceedings may be considered
5. Can I sue a hospital for medical negligence?
Yes, but the procedure depends in particular on the status of the establishment: a public hospital and a private clinic do not necessarily fall under the same litigation rules.
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The first question to be determined is therefore: Who is legally responsible for the care?
When damage occurs in a public institution, the institution's liability may fall under the administrative jurisdiction. For a private institution, the civil courts may have jurisdiction. The Ministry of Health distinguishes in particular between administrative actions concerning public institutions and civil actions concerning independent practitioners and private institutions.
This does not mean that the patient must immediately determine the competent jurisdiction themselves. An amicable procedure before a CCI may also constitute a first avenue depending on the situation.
It is therefore important not to send a complaint or start proceedings at random. The status of the establishment, the nature of the damage and the medical circumstances must be examined before choosing the strategy.
The examples of medical negligence that our solicitors handle on a daily basis:
- Diagnostic error
A doctor fails to diagnose a condition even though the symptoms and available examinations should have led them to consider this disease, resulting in a delay in treatment.
- Delayed diagnosis
A serious illness is diagnosed several months after the appearance of warning signs that should have led to further tests.
- Medication error
Wrong medication, wrong dose, wrong route of administration, or medication prescribed despite a known contraindication.
- Patient mix-up
A medical procedure or treatment is performed on the wrong patient.
- Wrong side or wrong site surgery
Wrong-site or wrong-organ intervention.
- Surgical error
An anatomical structure is accidentally injured when the circumstances of the procedure did not justify this risk or when the rules of good practice were not followed.
- Failure to monitor after an operation
Abnormal signs appear after a procedure but are not correctly identified or managed, leading to a deterioration in the patient's condition.
- Failure to manage an emergency
The symptoms of a medical emergency are underestimated and the patient is not directed or treated within a suitable timeframe.
- Anaesthetic error
A medication, dosage, monitoring or management error regarding an anaesthetic complication may, depending on the circumstances, engage the professional's liability.
- Failure to inform the patient
The patient did not receive sufficiently clear information about the normally foreseeable risks of a procedure, its consequences or existing alternatives. The failure to provide information constitutes a specific ground for medical liability.
- Error in obstetrics and gynaecology
For example, a delay in managing foetal distress or in performing a caesarean section when medical circumstances required a prompt intervention.
- Birth error
Inadequate monitoring of the mother or child, a delay in detecting a complication or inappropriate management may, depending on the circumstances, lead to severe after-effects.
- Error during a medical examination
An abnormality visible on an X-ray, a CT scan, an MRI scan or a test is not detected even though it should have been under the conditions of the examination.
- Misinterpretation of a test
The professional has the necessary results, but their interpretation is erroneous and leads to inappropriate management.
- Healthcare-associated infection
An infection can sometimes engage the liability of the establishment, notably when it results from a failure to comply with hygiene or prevention rules. But not every infection contracted in hospital is necessarily due to negligence
- Poor care (hydration, nutrition, monitoring, etc.)
«The hospital malnourished or poorly hydrated my relative: is this medical negligence?»
The care of an inpatient also includes monitoring, comfort, feeding and hydration care adapted to their state of health. The French Public Health Code stipulates in particular that monitoring nutritional balance is part of the care falling within the independent scope of nursing practice. This can notably pose a problem when a patient presents with specific difficulties in eating or drinking.
6. How to obtain compensation after a medical error?
Depending on the situation, you can seek compensation from the insurer of the person at fault, refer the matter to the CCI and, when the conditions are met, receive compensation from the ONIAM under national solidarity.
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There is not a single procedure for compensating victims of medical accidents.
When a fault is established against a healthcare professional or institution, their insurer may be required to compensate the victim. When a non-fault medical accident meets the conditions for compensation under national solidarity, the ONIAM may intervene.
The CCI constitutes a major route of the procedure. It can organise an expert assessment to determine the circumstances of the damage, its causes, its severity and the possible existence of fault or treatment risk.
If a notice leads to an offer of compensation, it must be examined carefully before accepting it. Acceptance can have significant consequences for the ability to subsequently pursue the dispute for the same damage.
7. How much compensation can I receive after a medical negligence?
There is no standard amount: compensation depends on the severity of the damage, the after-effects and all their personal, professional and financial consequences.
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A medical error can lead to very different consequences from one victim to another. The same procedure may cause temporary disability in one person, while another will be left with permanent after-effects.
Compensation must therefore be individualised.
It can take into account, in particular, physical and psychological suffering, functional deficit, loss of earnings, medical expenses, assistance needs, cosmetic damage, professional consequences and the impact on personal activities.
Medical expertise plays a vital role here. In particular, the experts determine the nature and extent of the damage to allow it to be assessed.
It is therefore impossible to seriously give an amount based solely on the diagnosis or the number of days in hospital.
8. How long do I have to take action after a medical error?
Time limits for taking action exist and depend in particular on the procedure chosen; it is therefore best to have your case reviewed promptly rather than waiting for the deadline.
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Medical negligence claims are subject to limitation periods. These periods may vary depending on the nature of the claim and the person or organisation against whom the action is brought.
The difficulty is therefore not to reason solely on the basis of the date of the operation or hospitalisation. It is necessary to examine precisely the nature of the damage, the date on which it was consolidated, the steps already taken and the procedure envisaged.
A victim can sometimes discover the consequences of medical treatment several years after receiving care. This does not automatically mean that they can no longer take legal action.
Conversely, waiting without checking the deadlines can be a particularly costly mistake. An indemnification procedure may also take time, particularly when a medical assessment is required.
What about healthcare-associated infections?
An infection contracted during or as a result of healthcare can, depending on the circumstances, give entitlement to compensation, even without a clearly identified individual medical error.
As a reminder, a nosocomial infection is an infection that occurs during or following care in a healthcare establishment and was neither present nor in incubation at the start of that care.
It is important not to confuse nosocomial infection and medical negligence. An infection can occur despite properly administered care. In certain situations, the liability of the healthcare facility may nevertheless be established, enabling the victim to obtain compensation.
The seriousness of the consequences is also essential: an infection can lead to readmission, further intervention, significant pain, permanent sequelae or occupational disability.
In any case, the start of the procedure is the same: you must obtain your complete medical file and have the circumstances of the infection analysed.
9. What should one do if the healthcare establishment refuses to acknowledge its mistake?
The establishment's refusal does not mean that you have no recourse: you can request your medical records, have your situation analysed, contact the Users' Committee or the CCI and, if necessary, initiate legal proceedings
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It is quite common for a healthcare facility to contest, at least initially, any liability. You should therefore not consider the facility's response as a definitive decision on your rights.
The first thing to do is obtain your complete medical record. It will enable your care to be accurately reconstructed: consultations, tests, prescriptions, procedures, surgical reports, treatments and the evolution of your state of health.
You can then ask the establishment for explanations and send a written complaint to its management. In a hospital or clinic, you can also contact the Users' Committee. In particular, its role is to help patients and their families with their procedures and it can enable mediation with the establishment.
But watch out: Neither the CDU nor mediation is medical expertise. If the issue is to determine whether a fault caused your injury, an independent medical analysis will generally be required.
The Conciliation and Compensation Commission therefore constitutes a particularly interesting option. It can be used in the event of a medical accident, iatrogenic illness or healthcare-associated infection. Depending on the situation and the seriousness of the damage, it may allow for a conciliation or compensation procedure.
The CCI procedure is an amicable and free of charge procedure. In particular, it can allow for the organisation of an expert assessment intended to determine the circumstances of the damage, its origin and its consequences. The ONIAM intervenes in certain situations under national solidarity.
If no amicable settlement is reached, a legal action can be considered. The jurisdiction depends in particular on the status of the establishment: for a public hospital, the dispute falls in principle within the competence of the administrative court; for a private establishment, the judicial court may have jurisdiction.
Finally, if you consider that a criminal offence has been committed, a criminal complaint may also be considered. However, this is a different procedure from simply seeking compensation.
Frequently asked questions
I signed a waiver before the medical procedure: can I still take legal action?
Yes: the fact of having signed a consent document or «waiver» does not, in itself, constitute a general authorisation given to the doctor to perform the procedure poorly.
Can the hospital simply say that it has committed no fault?
He can dispute his liability, but this position binds neither the ICC nor the judge.
Can I get my medical record even if the hospital disputes my request?
Yes, access to medical records is a patient right. Means of appeal exist in the event of difficulty.
Can I refer the matter to the CCI even if the hospital refuses to admit its mistake?
Yes. Referring the matter to the CCI is precisely not conditional on prior recognition of fault by the establishment.
Do I have to go to court?
No. An amicable procedure, particularly before the CCI, can make it possible to seek compensation without going straight to litigation.
10. I have finally obtained an expert assessment, but its conclusions do not match what I am experiencing. What can I do?
Do not resign yourself to an unfavourable report: have it analysed promptly by a solicitor specialising in personal injury, ideally with the assistance of a medico-legal adviser, in order to identify errors in the report and determine potential remedies.
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A medical assessment can be the most important moment in your file.
It is indeed on the basis of this expertise that the cause of your after-effects, their severity, whether they are temporary or permanent, and the various heads of loss eligible for compensation will often be determined.
It is therefore entirely possible to experience significant consequences on a daily basis and to discover, upon reading the report, that the expert has adopted a much more limited assessment.
In this situation, Do not sign anything and do not immediately accept a compensation offer.
Start by having the report proofread. But beware: challenging an expert assessment does not simply consist of explaining that you disagree. You must precisely identify the errors, omissions or contradictions in the report and confront them with the medical evidence in the file.
It is precisely at this stage that the intervention of a specialist lawyer in the field can be decisive.
The lawyer is going to review the entire procedure, the expert report, your medical file and the available documents. They will be able to check in particular whether all your losses have been examined, whether the expert answered the questions asked and whether the conclusions are consistent with the medical evidence.
When the case justifies it, the lawyer may also advise you to be assisted by a independent medical expert for the victim. The latter intervenes in the medical field: he analyses the expert's conclusions, identifies any medical errors and can formulate technical observations.
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The lawyer and the medical adviser therefore have complementary roles:
- the medical adviser is advocating for your situation on medical grounds
- The lawyer defends your interests from both a legal and compensation perspective.
Depending on the procedure, your lawyer may then submit observations, request that certain points be re-examined, challenge an assessment, apply for a new expert appraisal where possible, or initiate the appropriate appeal.
As part of proceedings before a CCI, for example, expert assessment serves in particular to enlighten the commission on the origin of the damage, its consequences and any potential liabilities. The opinion subsequently issued by the CCI may itself be subject to challenge or appeal depending on the circumstances.
Therefore, the solicitor intervenes long before the trial. Its very purpose is to allow you to defend your case at the time when the medical and compensation details are being compiled.