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.

NHS Trust v K (2012) H&FLR 2014-29

A National Health Service Trust v K and Anor (2012) H&FLR 2014-29

Court of Protection (UK)

15 October 2012

Coram: Holman J

Appearing for the Applicant: Mr Charles Utley (instrusted by the applicant’s legal department)
Appearing for the First Respondent: Ms Amy Street (instructed by the Official Solicitor)
Appearing for the Second Respondent: Mr Charles Utley (instrusted by Kennedys Law LLP)

Catchwords: United Kingdom – Person under disability – cancer – surgery – obesity – diabetes – asthma – heart dysrhythmia – best interests – sedation

Facts: A 61 year old lady was diagnosed with uterine cancer. The National Health Service (NHS) Trust responsible for her care considered that she should undergo a hysterectomy and bilateral salpingo-oophorectomy and lymphnodectomy. Non-surgical treatments were available but there was reason to doubt their efficacy. She suffered from a 40 year history of a psychotic disorder and chronic schizophrenia and (among other things) denied that she suffered cancer or required surgery. It was common ground that she was unable to make informed decisions as to major medical treatment.

The patient suffered marked co-morbidities including superobesity, diabetes and pronounced asthma, all of which increased the risk of serious complications resulting from the surgery. She also had a heart dysrhythmia which created a risk that agitation (such as that caused by fighting physical restraints) might be fatal.

The Official Solicitor, as her litigation friend, considered the proposed surgery too dangerous. The NHS Trust applied to the Court of Protection for approval to perform the surgery.

Held: Granting the application –

1. The Court of Protection is required to make the decision for the patient in her best interests. To assess where her best interests lie, the court must consider all relevant circumstances including advantages and disadvantages.

2. In order to minimise the risk of the patient reacting advsersely to the prospect of surgery, it would be lawful to sedate her before telling her of the operation to be performed, and before administering anaesthesia.

DH NHS Foundation Trust v PS [2010] Med LR 320, [2010] EWHC 1217 (Fam), [2010] Fam Law 927, [2010] 2 FLR 1236, considered.

3. A lymphnodectomy would add to the duration and gravity of the surgery and increased the risks involved. In the circumstances, this element of the surgery was not approved.

Judgment

The Court’s judgment is available here.