X v French Republic (2007) H&FLR 2014-56

Dr Eric X v French Republic (2007) H&FLR 2014-56

Court of Cassation (France)

5 June 2007

Coram: Cotte P, Blondet and Farge (conseillers)

Appearing for the Appellant: Didier Le Prado and Jean-Jacques Gatineau
Appearing for the Respondent: Francis Fréchède (Public Prosecutor)

Catchwords: France – criminal law – doctor – surgery – obese patient – pulmonary embolism – death – manslaughter – compensation

Facts: The appellant was a surgeon specialising in plastic and reconstructive surgery.  On 13 January 2000 he performed an abdominoplasty on an obese 56 year old woman patient in order to remove excess skin and fatty tissue.  In the course of the surgery the patient developed a pulmonary embolism which caused her death.

It was found that the danger to the patient had been increased by the appellant’s decision not to delay the procedure pending the patient losing weight by following a dietary regime recommended by an endocrinologist; in the circumstances the surgery performed should have been considered only as a last resort.  It was further found that he had not drawn the attention of the attending anaesthetist to the risk of thromboembolisation and that he had also not drawn those dangers to the patient’s attention.

The defendant was convicted at first instance of homicide involontaire (≈ manslaughter).  The Court of Appeal at Versailles quashed the conviction but declared the defendant liable to pay compensation to the deceased’s heirs pursuant to article 470-1 of the Code du Procedure Pénale*.  The defendant appealed.

Held: Per curiam, dismissing the appeal –

1.  While the doctor’s responsibility relates to the choice of medical means and not to the ultimate result, this principle is displaced where it is established that there has been an error in the carrying out of those means.

2.  While a doctor is obliged to inform their patient of the risks of proposed treatment, the doctor is entitled to adduce a range of evidence (including presumptions) to demonstrate that they have fulfilled that obligation.  It was not open to the Court of Appeal to find that Dr X had failed to fulfil this obligation solely from the absence of a signature by the deceased.

3.  On the available evidence, the Court of Appeal was able to find that Dr X’s errors had directly contributed to the patient’s death and justified it ordering him to make recompense to her heirs.

Judgment

The Court’s judgment is available here.

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* No copy of the decision can be located.

Wingfield v Hill Bros Transp. Inc (2014) H&FLR 2014-30

George Wingfield v Hill Brothers Transportation Inc (2014) H&FLR 2014-30

Supreme Court of Nebraska

16 May 2014

Coram: Heavican CJ, Wright, Connolly, Stephan, McCormack, Miller-Lerman and Cassell JJ.

Appearing for the Plaintiff: Mr Stacy L. Morris (of Lamson, Dugan & Murray LLP)
Appearing for the Defendant: Caroline M. Westerhold (of Baylor, Evnen, Curtiss, Grimit & Witt LLP)

Catchwords: Nebraska – workers compensation – deep vein thrombosis – pulmonary embolism – pre-existing condition – causation

Facts: The plaintiff commenced work with the defendant as a truck driver in or about late January 2010. On 26 February 2010 he was found to be suffering a deep vein thrombosis (DVT) and pulmonary embolism. It was accepted that he was required to work approximately ten hours a day and would be seated during that time period.

The plaintiff had been a truck driver for around 35 years. He had suffered two similar incidents previously, once in September 2005 in Missouri and once on 31 December 2009 (that is, about a month before beginning work with the defendant). Following the 2009 incident he was prescribed anticoagulation medication which was expected to be long term, although there was medical evidence that it was prescribed at a subtherapeutic level. There was further evidence that the injuries could have arisen from non-work related factors including obesity, heredity and smoking.

The plaintiff filed a workers compensation claim which was rejected: Wingfield v Hill Bros Transp’n Inc (Neb. Workers’ Comp. Crt, Hoffert J, date not known, unreported). The plaintff appealed.

Held: per curiam, dismissing the appeal –

1. It was appropriate in cases of DVT and pulmonary embolism to use the same test for causation as is used in heart attack cases. That is, requiring both legal causation and medical causation.

2. The test for legal causation where there is a pre-existing condition is whether the exertion or stress experienced by the claimant in employment is greater than that experienced in the ordinary non-employment life of the employee or any other person. Medical causation would be established when a preponderance of the evidence showed that employment contributed in a material and substantial degree to the injury.

Zessin v Shanahan Mechanical and Electrical, 251 Neb. 651, 558 NW. 2d 564 (1997), followed.

3. In non-cardiac cases, a plaintiff with a pre0existing condition must establish that the injury was caused by employment and not simply the progression of the pre-existing injury.

Swanson v Park Place Automotive, 267 Neb. 133, 672 NW. 2d 405 (2003), considered.

Judgment

The Court’s judgment is available here.