Any healthcare professional, whether he practices in a liberal or public context, may be held liable for criminal liability before the criminal courts for a fault committed in the exercise of his medical activity. This responsibility, which exposes him to a sanction, presupposes that an offense has been committed. There can be no question, in criminal matters, of medical liability without fault, or even of presumption of liability.
The offense retained is, in the majority of cases, that of homicide or unintentional injury. For more than a century, the Court of Cassation has held that the provisions of the Penal Code providing for these offenses are general and apply to all professions, including that of doctor (Crim., May 28, 1891, Bull. N ° 210 ). And the famous Mercier judgment of May 20, 1936, establishing the principle of the contractual nature of the doctor’s obligations towards his patient, did not influence this jurisprudence. The contractual liability of the practitioner does not preclude his criminal liability when the breach he committed characterizes the offense (Crim., December 12, 1946, Bull. N ° 231; June 5, 1958, Bull. N ° 443).
In a much rarer way, the exercise of the professional activity of the doctor is penally sanctioned on the basis of an intentional offense. A fraud committed in the practice of the medical art was thus held against a member of the Church of Scientology (Crim., April 7, 1999, unpublished in the bulletin, appeal n ° 98-80.40). The violation of professional secrecy is sometimes criticized (Crim., January 23, 1996, Bull. N ° 37; April 8, 1998, Bull. N ° 138). The crime of deception can also be prosecuted (Crim 22 June 1994, Bull n ° 248, so-called “contaminated blood” case). In an innovative judgment of 29 June 1999 (Bull. N ° 160, Dr penal 1999, 153), the Criminal Chamber stated that the fact that a doctor reuse, even after a new sterilization, a medical device presented by the manufacturer, to meet the regulations, as being for single use, characterizes the material element of the offense of deception on the substantial qualities of a service. In the category of intentional offenses, it is in matters of failure to provide assistance that the proceedings are most numerous.
In the light of the case law of the Court of Cassation, the conditions of punishable medical malpractice will be examined, which amounts to analyzing the elements constituting the two offenses, one involuntary, the other intentional, most often attributed to the body. medical.
I. HOMICIDE AND UNINTENTIONAL INJURIES
Criminal proceedings for homicide or unintentional injuries are generally brought against the doctor following the complaint with civil action of the victim or his relatives. But it is only incidentally to public action for the application of the penalty that the civil parties can ask the criminal courts for compensation to repair the damage resulting from the offense. On the condition also that it is not about an action for compensation brought against a doctor of a public hospital establishment, declared guilty of the offense on the occasion of a fault of service. This action falls within the competence of the administrative courts (Crim., November 27, 1984, Bull. N ° 369). The victim is nevertheless admitted, in this case,
When no offense is characterized against the prosecuted doctor, the latter is acquitted by the criminal court. On the basis of article 470-1 of the Code of Criminal Procedure, the victim can then ask the criminal courts to compensate the damage resulting from the acts prosecuted on the basis of the rules of civil law. Thus, in a prosecution for homicide or unintentional injuries, an acquitted doctor may be condemned by the criminal court, on the basis of contractual liability, to damages towards the victim (Crim., March 3, 1993, Bull. No. 96; Crim., September 28, 1999, Bull. N ° 198).
The limitation period for public action, of three years for offenses, begins to run, in matters of physical injury, not from the fault but from the day on which the damage resulting from the fault appeared ( Crim., November 4, 1999, appeal 99-81.279, publication in progress in the bulletin). After this period, the victim can no longer initiate his action before the criminal court. He only has the civil remedy left to act in medical liability, by application of article 10 of the Code of Criminal Procedure.
The new Penal Code, which entered into force on March 1, 1994, did not modify the elements constituting the offense of homicide and unintentional injury. Under the title “involuntary attacks on life”, article 221-6 of the Penal Code provides that the fact of causing, through clumsiness, recklessness, inattention, negligence or breach of an obligation of safety or prudence imposed by law or the regulations, the death of others constitutes manslaughter punishable by 3 years’ imprisonment and a fine of 300,000 francs.
The Court of Cassation ruled that this text targeted the person already born and not the unborn child. Also the fact for a doctor to provoke on his pregnant patient, by recklessness and negligence, the rupture of the water bag making necessary the expulsion of the fetus, cannot characterize a manslaughter (Crim., June 30, 1999 , Bull. N ° 174; Dalloz 1999, p. 710, note D. Vigneau; Gaz. Pal. 29, October 30, 1999, Health law, p 19, note J. Bonneau; Dr penal 2000, 3; JCP 2000, 10 231, note G. Fauré; Dalloz 2000, summaries commented on by Y. Maynaud, p 27). Contrary to the opinion expressed by certain authors, the Court of Cassation did not take part, in this judgment, on the status of the embryo but based its decision on the principle of
Article 222-19 of the Penal Code criminalizes the same reckless behavior when it results in a total incapacity for work of more than three months. The penalty is two years imprisonment and a 200,000 F fine. If the incapacity is less than three months, the facts constitute a 5th class offense.
The penal responsibility of the doctor supposes the meeting of three elements: the fault, the death or the injuries of the patient and a causal relation between the fault and the damage.
A. The fault
1) The concept of unintentional criminal misconduct
The Penal Code does not define unintentional criminal misconduct but targets five types of conduct which can each characterize a fault: clumsiness, inattention, recklessness, negligence or breach of an obligation of prudence or safety. .
The Penal Code makes no distinction according to the degree of seriousness of the fault and, as a consequence of the principle of identity of the criminal and civil fault laid down by the Court of Cassation (Civ., December 18, 1912, Bull n ° 231), all are theoretically punishable, even the lightest. The gross professional fault of the doctor is not a condition of the offense of involuntary injuries, reminded the Criminal Chamber (Crim., October 28, 1971, Bull. N ° 287).
These principles are today called into question by the doctrine (see in particular, J. Penneau “Medical errors” in Resp. Civ et ass. July 1999, special issue “Law of medical responsibility”, p. 13) and , in particular, by elected officials and civil servants. The concept of criminal misconduct in the crime of homicide and unintentional injury, applicable to all, is likely, in the future, to be modified by the legislator: the study group on the criminal liability of public decision-makers, chaired by J. Massot, recommends, in his report of December 16, 1999, to reduce the field of application of these offenses and this is also the meaning of the bill presented by Senator Fauchon. It would be,
The only innovation in the 1994 Criminal Code concerns the deliberate breach of an obligation of safety or prudence. Such a failure constitutes an aggravating circumstance of the crimes of homicide and unintentional injury. The penalty incurred is heavier (5 years imprisonment instead of 3 for manslaughter, 3 years instead of 2 for unintentional injuries). Or it has the effect of turning a fine into a misdemeanor. But the fact that the fault is deliberately committed does not change the nature of the offense, which remains unintentional, since the perpetrator did not intend to injure or kill. The Court of Cassation has not yet had to rule, in medical matters, on the application of these new provisions.
2) Medical applications
To characterize the offense, the criminal judge must qualify the fault by referring to the five legal criteria listed above. Unlike the medical liability, the simple fact abnormal practitioner is not sufficient to incur criminal liability (Civ 1, 7 January 1997, Bull 6;.. 3 February 1998 Bull No. 46. May 13, 1998, Bull. N ° 174).
As these criteria were not modified in 1994, previous case law remains applicable. The criminally sanctioned medical faults are committed either during the performance of the medical act, or during the medical follow-up, these two types of faults can be combined.
a) Awkwardness and inattention
Procedures based on a doctor’s clumsiness or inattention are rare before the Criminal Chamber. It seems that this dispute is rather referred to the civil courts, the fault committed may not justify criminal prosecution in the eyes of the victims.
The clumsiness of the surgeon was thus sanctioned, who, during a cataract operation, causes, by unfortunate gestures, the passage of the crystalline nucleus under the iris, resulting, through an infection, the loss of the eye (Crim., November 27, 1990, Dr criminal 1991, No. 103).
The fault of the surgeon who forgets compresses in the abdomen of the patient operated on for a colectomy constitutes a punishable inattention. This fault had been qualified as clumsiness or negligence by the appellate judges (Crim., February 12, 1997, Dupaty, 96-82.398, unpublished in the bulletin).
The clumsiness of the obstetrician-gynecologist in the use of forceps, which caused the death of the newborn, was also prosecuted and sanctioned by the criminal judge (Crim., June 15, 1999, Lemoine, appeal U98-85.325, unpublished in the bulletin ).
Among the recent stops, we can cite as an example the fault of the anesthetist who is absent from the operating room at a critical moment of the surgical intervention, to perform another anesthesia in a neighboring room. The patient developed heart problems which led to his death after the nurse gave him a new dose of anesthetic due to his early awakening. The imprudence is combined here with the violation, by the anesthesiologist, of the decree governing the practice of his art, codified under articles D. 712-40 of the Public Health Code (Crim., November 26, 1997, Sansous, Resp civ et ass. 1998, n ° 250).
The surgeon is also committing a punishable recklessness who, to draw up a secondary sterility assessment, performs an endoscopic examination on a patient at risk, who entered a coma during the operation. The examination, not recommended in the case of the victim, was carried out unnecessarily and without having exhausted other means of research (Crim., December 3, 1997, Chabert, Resp civ et ass 1998, n ° 251).
The recklessness of the gynecologist, who excessively delays the decision to perform a caesarean section despite the unsuccessful attempts at delivery by suction cup then forceps and abnormalities in the heart rate of the fetus, has also been sanctioned. This resulted in severe brain damage to the child resulting from perinatal asphyxia (Crim., December 3, 1997, Mignon, Resp civ et ass 1998, no. 254).
This is the most common type of fault, resulting in most cases from a lack of necessary precautions before, during or after an intervention. Negligence is often associated with the recklessness of the doctor.
The surgeon and the anesthesiologist were thus sanctioned who refrained from ordering the transfer of a patient to a CHU when this solution was necessary because of the manifest inadequacy of the technical possibilities of the local hospital and of the divergence of their diagnoses. The victim, seriously injured in a traffic accident, had undergone three visceral surgery operations. She died the day after her admission to hospital (Crim., February 19, 1997, Bull. N ° 67; Dalloz 1998, p. 236, note B. Legros; JCP 1997, 22889 note JY Chevallier; Crim., 17 December 1997, resp civ et ass 1998, n ° 252).
The midwife gynecologist is guilty of faulty negligence, who is guilty of a deficiency in the post-operative follow-up of his patient. She had given birth by caesarean section to twins after a risky pregnancy. Hospitalized for several months and subjected to an anti-coagulant treatment, she should have been the subject of vigilant surveillance. She died two days after childbirth following an intra-abdominal hemorrhage (Crim., February 26, 1997, Solques, Dr penal 1997, 109).
The anesthetist who refrained from any prescription on the volume, nature and flow of the intravenous infusion performed was also convicted of negligence in the post-operative follow-up of a 4-year-old child, operated on for tonsils. in the recovery room and intended to maintain venous access in an emergency. The child went into a coma and then died as a result of cerebral edema caused by intoxication with administered water, by infusion of glucose serum, in too large a quantity (Crim., May 28, 97, Beyrath, appeal n ° 96-83.511, unpublished in the bulletin).
d) The diagnostic error
We will end this catalog of punishable medical faults by the question of the error of diagnosis. Like civil judges, the criminal judge considers that the error due to poor medical competence does not constitute imprudence or negligence, the doctor being bound by an obligation of means and not of result. (Crim., October 28, 1971 Bull. N ° 287). The diagnostic error cannot in itself therefore serve as a basis for criminal prosecution when it does not result from negligence in the preparatory examinations (Crim., November 3, 1988, Bull. N ° 366; June 29, 1999 , Bull. N ° 161, Dalloz 2000, summaries commented on by Y. Mayaud p 30).
The doctor must therefore take all the necessary precautions and be sufficiently informed about the patient’s condition, taking into account current scientific possibilities, before making his diagnosis, which should not be made lightly. Otherwise, the diagnostic error is criminally punishable (Crim., June 29, 1999, Thire, appeal n ° 98-84.977, unpublished in the bulletin). The guilty persistence in an erroneous psychiatric diagnosis was thus sanctioned with regard to a patient suffering in reality from Guillain-Barre syndrome, who died of cardiac arrest. The trial judges had qualified the diagnosis “aberrant” with regard to the personality of the patient (Crim., September 25, 1996, Guillet, n ° 95-86.076, unpublished in the bulletin).
3) The assessment of criminal misconduct by the judge
It is up to the judge to assess, in each individual case, whether the behavior of the accused person constitutes clumsiness, recklessness, inattention or negligence. Traditionally, since the Mercier judgment of 1936, the civil and penal jurisdictions judge the conduct of the doctor by reference to the duties which are imposed on him in the exercise of his profession: he is required to “give conscientious, attentive and, reserve made under exceptional circumstances, in accordance with the data acquired from science “.
This objective assessment criterion must now be supplemented by the application of article 121-3 of the Criminal Code. The text, which establishes the principle of the existence of involuntary offenses by way of derogation from intentional offenses, was amended by the law of May 13, 1996 relating to criminal liability for acts of recklessness or negligence. It reads as follows:
“… There is also an offense, when the law so provides, in the event of recklessness, negligence or breach of an obligation of prudence or security provided for by law or regulations, unless the perpetrator has committed the normal due diligence taking into account, if necessary, of the nature of its missions or its functions, its competences as well as the power and the means at its disposal …. “
The purpose of the legislative amendment is to impose on the criminal court a totally subjective fault assessment method. Originally desired by elected officials and public officials, it is general in scope. It applies whatever the quality of the author of the involuntary fault and therefore to the doctors.
In principle, if it is established that the doctor has performed normal diligence taking into account his skills and the means at his disposal, he cannot be penalized. Note that the term “competences” is understood to mean legal competence and not in the sense of aptitude.
Thus, the offense of manslaughter characterizes the fact, by a doctor, of abstaining from the normal diligence which would have allowed the diagnosis of an injury and the implementation of an appropriate treatment, when this negligence contributes to cause the death of the patient (Crim., June 29, 1999, Bull. n ° 162).
The judgments handed down by the Court of Cassation since the entry into force of this law show that in medical matters the assessment of criminal misconduct by judges has not undergone any appreciable change. In each of the cases submitted to it, the Criminal Chamber found that the impugned sentencing decisions were justified under article 121-3 of the Penal Code in its new version. There is no judgment of the Court of Cassation ruling on an acquittal based on this text.
In particular, it was judged that the head of the medical service of a CHR had not performed the normal diligence, taking into account the means at his disposal, in the organization of the service to which a young man suffering from infectious meningitis, diagnosed before admission to hospital in the early afternoon. The young patient did not receive any care for several hours, which irreparably resulted in his death the same evening, the intern on duty having confined himself to prescribing examinations without administering treatment. Along with the members of the medical team, the head of the service was penalized for having, in his case, committed faulty negligence in the organization of the service and delegation of powers vested in each practitioner in the event of an extreme emergency. (Crim., March 26, 1997, Bull. N ° 123, Dr penal 1997, 109).
On the occasion of this decision, the Criminal Chamber clarified that the criminal liability of members of the medical team is not exclusive of that of the head of service. (Cf., on this question, the article by M. Veron: “Criminal responsibility within a medical team: homicide and involuntary injuries, Gaz. Pal 1996, doctr. P. 1440)
B. Damage and the causal link with the fault
1) The damage
The fault will only be punishable if it resulted in damage, consisting of personal injury: death of the victim, injury or illness resulting in total incapacity for work. If the awkwardness, recklessness, inattention or negligence of the doctor did not cause damage, no offense is characterized so that no penal sanction is incurred.
The new Penal Code now derogates from this rule by repressing, in the absence of damage, the endangerment of others (art 223-1 of the Penal Code). The offense is constituted on condition that the endangerment proceeds from the manifestly deliberate violation of a particular obligation of safety or prudence imposed by law or regulation, and that it directly exposes others to an immediate risk of death or harm. serious injuries (such as to cause dismemberment or permanent disability). The Court of Cassation has not, to date, had to rule on its application in medical matters.
2) The causal link
a) The characteristics of the causal link
The offense of manslaughter is defined by the penal code as causing, through clumsiness etc … the death of others. The wording of the text incriminating the offense of unintentional injury is built on the same model. The conviction therefore presupposes that proof of a causal link between the fault and the damage is established.
Criminal courts adopt a broad conception of causation. According to case law, which is not specific to medical liability, the law does not require that the cause of the damage be direct, immediate or exclusive. It is therefore not necessary that the fault be committed by a single perpetrator nor that it be directly at the origin of the damage, it is sufficient that it has contributed to it or that it created the conditions which made this damage. possible damage. Consequently, all those who contributed to the realization of the damage can be the object of prosecution.
Thus, the surgeon who operated on a victim, suffering in particular from a fracture of the femur in a traffic accident, was declared guilty of involuntary injuries, without having the arteriography performed which would have revealed the thrombosis of the popliteal artery. This examination was performed the next day, and revascularization restored, but too late to avoid necrosis and amputation of the leg. The negligence of the surgeon leading to the delay in diagnosis was judged to have a certain causal relationship, albeit indirect, with the damage (Crim., July 7, 1993, Gaz Pal. 1996, 28, note F. Chabas).
While the causal link is not necessarily direct or immediate, it must in any event be certain. The proven fault of a doctor will not be prosecuted if it is doubtful that it was the cause of the patient’s death. The faulty abstentions of a midwife gynecologist, occurring when the unborn child had lost all chance of survival, are not causally linked to the death, which justifies the doctor’s release (Crim., July 5, 1997, 96- 84.524, unpublished in the bulletin). The fault of the doctor must therefore be a sine qua non of death to be criminally punishable.
b) Loss of chance of recovery or survival
In civil law, loss of chance is damage capable of giving rise to the right to compensation. Civil case law, which created this concept, diverted it to medical matters and used it to facilitate the victim’s proof of causation in cases where the causal relationship between the proven medical fault and the damage suffered by the victim. patient was not established with certainty. From then on, the victim only has to prove that the doctor’s fault deprived him of a chance to be cured or to avoid sequelae. If this chance really exists, and if its loss is not purely hypothetical, compensation is granted. The civil case law of the Court of Cassation normally admits the deprivation of
In criminal matters, there is no offense of loss of chance of recovery or survival. Because, as we have seen, the crime of homicide or involuntary injury represses the fact of causing through one’s fault death or incapacity for work. And the criminal chamber, in manslaughter prosecutions in medical matters, requires certainty of the causal link between the fault and the death. The loss of chance cannot establish this certainty (Crim., January 9, 1979, JCP, II, 19272, note Chabas; January 7, 1980, Bull. N ° 10; June 29, 1999, Bull. N ° 161).
The negligence of a urologist in a clinic in the care provided to a patient treated for renal colic, according to the erroneous but explainable diagnosis of the doctor on duty, when in reality she presented an intestinal obstruction which led to her death in the night of his hospitalization, is not punishable, the causal link cannot be characterized by the loss of a chance of survival (Crim., March 25, 1998, Resp civ et ass 1998, n ° 253).
The Criminal Chamber also approved the release of two doctors from the public hospital service who had not provided the care required by the seriousness of the patient’s condition, who arrived on a Sunday afternoon in the emergency department on the grounds that, if their fault had caused the victim to lose a chance of survival, it was not shown that a faster intervention would have saved her. She had attempted suicide by taking various drugs, including a toxic product in a lethal dose. It is interesting to note that, in this case, the administrative court, finding deficiencies in the functioning of the public service, had compensated the victim’s husband on the basis of the loss of chance (Crim., November 20, 1996, Bull. n ° 417; Dr. Penal 1997, n ° 54).
This distortion with civil case law is not without its problems because a victim who could have been compensated before the civil courts, will not be compensated before the criminal courts. This is why the criminal chamber, on the basis of article 470-1 of the Code of Criminal Procedure, allows the criminal court, who acquits the accused in the absence of certain causality between the fault and the death, to condemn nevertheless this one to repair the loss of a chance of survival. The damage repaired on civil interests (loss of chance) is no longer the same as that taken into account for criminal proceedings (death) (Crim., March 20, 1996, Bull n ° 119, September 28, 1999, Bull . n ° 198).
c) The plurality of authors
We have seen, in the course of the examples cited, that it is possible to penally condemn each member of a medical team who would have contributed to the realization of the same damage since the repressive texts do not require that the fault of the accused was the sole cause of the medical accident. The fault of one cannot therefore justify that of the other.
The Criminal Chamber thus affirmed, in the first judgment rendered in the famous Farçat case (young man who died of a cardiac arrest a few moments after an operation of the tonsils, whereas he had been left alone in his room by the nurse and that the surgeon and the anesthesiologist had left the clinic) that “the existence of the fault identified against the anesthetist during the postoperative period does not necessarily exclude the possibility of that of the surgeon to whom the intervention “(Crim., May 10, 1984, Bull. n ° 167). The plenary assembly of the Court of Cassation (Ass. Plén. May 30, 1986, Bull. N ° 184) subsequently, in the same case, clarified the respective missions of the surgeon and the anesthetist by stating that ” so that he must ensure that the patient will remain under the supervision of a qualified person. We know that now the practice of anesthesia is regulated. (Cf the article of J. Guigue and C. Esper, “the responsibility of the anesthetic fact”, Gaz Pal 23, October 24, 1998, p. 3. This study addresses the question of criminal responsibility). so that he must ensure that the patient will remain under the supervision of a qualified person. We know that now the practice of anesthesia is regulated. (Cf the article of J. Guigue and C. Esper, “the responsibility of the anesthetic fact”, Gaz Pal 23, October 24, 1998, p. 3. This study addresses the question of criminal responsibility).
When there is a plurality of perpetrators, who may be, since the establishment of the criminal liability of legal persons, a hospital or a clinic, the difficulty arises from the distribution of responsibilities incurred by the various practitioners. No one is criminally liable except for his own act (article 121-1 of the Penal Code), which, for natural persons, excludes vicarious liability. Each practitioner is therefore only liable for faults that he himself has committed, either in the acts incumbent on him personally, or in the direction and supervision of the staff placed under his orders.
II. THE OMISSION TO PROVIDE RESCUE
The offense of failing to provide assistance, which has not been modified by the new Penal Code is punished by article 223-6, paragraph 2: “Shall be punished by the same penalties (5 years imprisonment and 500,000 francs fine) anyone who voluntarily refrains from bringing to a person in danger the assistance that without risk for himself or for third parties, he could give him either by his personal action or by provoking help.
The legislator has not provided that legal persons can be declared criminally responsible for this offense.
The general text, based on the moral duty of humanity, is applicable to everyone and more particularly to physicians. It is included in article 9 of the code of medical ethics according to which ” any doctor who is in the presence of a sick or injured person in danger or, informed that a sick or injured person is in danger, must assist or ensure that he receives the necessary care “.
However, a person who practices medicine illegally cannot be justified by the obligation to provide assistance imposed by the Penal Code (Crim., July 2, 1975, Bull. N ° 173).
The offense includes, in addition to an intentional element, three material elements: 1) not to provide assistance 2) to a person in danger 3) in the absence of danger for the accused or for third parties. The main questions raised by the application of the offense to doctors relate to the voluntary nature of the abstention, the mode of assistance and the justification put forward by the rescuer.
A. The intentional element
Failure to provide assistance is punishable when it is voluntary. Consequently, there is only an offense if its author is aware of the danger.
According to an old formula of the Court of Cassation, the provisions of article 223-6 of the Penal Code require, in order to be applicable that the doctor be personally aware of the imminent nature of the danger to which the person was exposed. state required help and that he could not doubt the need to intervene immediately in order to ward off this danger.
The judge must, in each case, endeavor to demonstrate, based on the factual circumstances falling within his sovereign appreciation, that the doctor was aware of the imminent danger threatening the patient. (Crim., June 3, 1999, Roussel and Selma, appeal n ° 88-83.101, unpublished in the bulletin).
When the doctor is with the patient and does not provide the necessary care as a result of an error of assessment, he cannot, for lack of an intentional element, be declared guilty of non-assistance to a person in danger ( Crim., November 26, 1969, Bull. N ° 317). Thus the diagnostic error on the usefulness of resuscitation, which does not characterize voluntary abstention, must lead to a release (Crim., February 3, 1993, Bull. N ° 58).
The text is difficult to apply in the event of an emergency call and the criminal liability of the doctor who does not travel raises thorny questions. When the doctor, called by telephone, is not in the patient’s presence, he is not required, especially if he is not on call, to go systematically on the spot. He must collect a certain amount of information to form an opinion of the state of danger and provide a response adapted to each case. The doctor, who sorts out the calls, can make errors in the assessment of the symptoms that are described to him. The judge must therefore examine each situation to determine what the person’s behavior was.
It is up to the doctor, to whom the appeal is addressed, to assess, under the control of his conscience and the rules of his profession, the usefulness and urgency of his intervention (Crim., 31 May 1949, JCP 1949, II, 4945). But the criminal abstention is carried out when the doctor whose assistance is requested, warned of a peril of which he is the only one able to assess the seriousness, refused his assistance without having first made sure, as he could. to do so, that this peril would not require its immediate intervention (Crim., January 21, 1954, Patin rapp ,. JCP 1954, II, 8050).
In other words, if it is through his fault that the doctor called by telephone is not aware of the danger, he is guilty of failure to provide assistance. And the offense is constituted when the doctor whose assistance is requested could not be mistaken about the seriousness of the danger to which the patient was exposed and that he voluntarily refrained from bringing him assistance (Crim. 17 February 1972, Bull. N ° 68, March 26, 1997, Bull. N ° 123).
Conversely, justifies its decision to release the Court of Appeal which finds that the doctor, called to the bedside of a four-month-old child, took the trouble to inquire, by telephone, about the state of health of this one which was not alarming, according to the indications provided by the parents and that the symptoms described were not of sufficient gravity to justify the intervention of the doctor within a faster period than that in which he envisaged to move around (Crim., March 26, 1997, Langlois, Dr penal 1997, 125, notes M. Veron; Dalloz 1999, summaries commented on by J. Penneau, p 384)
Finally, in the case of an intentional offense, the Court of Cassation ruled that the public hospital doctor, definitively convicted of failing to provide assistance in the performance of his duties, was guilty not a fault of service but an inexcusable breach of its professional and ethical obligations. It deduced from this that the criminal courts were competent to rule on the civil liability of this doctor at the request of the victim, who was a civil party (Crim., April 2, 1992, Bull. N ° 140).
B. The assistance mode
The Penal Code obliges those who have knowledge of the state of danger to bring assistance either by their personal action or by provoking assistance. The Code of Medical Ethics requires the doctor, who does not provide assistance himself, to ensure that the sick or injured person receives the necessary care.
The old jurisprudence decides that the law did not intend to leave to the person who has to provide assistance an arbitrary option between the two modes of assistance provided for by the Code. On the contrary, it makes it a duty to intervene by this one of these two modes that necessity dictates and even, if necessary, by their cumulative use (Crim., July 26, 1954, Bull. N ° 276; 9 October 1956, Bull. n ° 616).
The doctor who subordinates his intervention to the prior appeal of the attending physician, although not unaware that his colleague will not be able to intervene immediately as required by the patient’s condition, falls under the law (Crim., February 20, 1958, Bull. N ° 186).
But the doctor, informed that the patient is in danger, does not commit the offense if, unable to move, he ensures that the person to be assisted receives the necessary care from a third party. The regulator of the SAMU must therefore be released, who, unable to leave his post, in the absence of the other doctor from the service already in intervention, implemented the means most appropriate to the situation by asking to the doctor treating the patient to go to him to decide on his hospitalization (Crim., March 26, 1997, Langlois, cited above).
On the other hand, is guilty of the offense the doctor on duty on a Sunday who, because of the snowfall and the visits he had to make, refused to come to a child in danger, limiting himself to advising parents to go to the hospital, without provoking help himself as he had to (Crim., February 3, 1998, Dr penal 1998, 96, notes M. Véron; Dalloz 1999, summaries commented by J. Penneau, p 384).
C. The absence of risk
The criminalization of the Penal Code eliminates the obligation of assistance in the presence of a risk for the rescuer. The absence of risk is, therefore, a condition of the offense. The trial judges concretely assess, in each specific case, the gravity of the danger to which the victim is exposed compared to the risk incurred by the rescuer as a result of his intervention.
A risk that is not serious cannot release the doctor from his obligation to provide assistance. The assessment of this risk falls within the power of the trial judges. Thus, they can decide that the climatic conditions making travel difficult are not such as to justify the doctor’s refusal to go to the bedside of the patient in imminent danger (Crim., February 3, 1998, cited above).
This study of the offense of omission to bring aid applied to doctors will be completed by the question of the starting point of the three-year prescription. As this is an instantaneous offense, it begins to run when the voluntary non-intervention occurs. The criminal abstention alleged against a doctor, who did not intervene with his patient when he had been informed by the blood transfusion center of the contamination by the HIV virus in the blood that he had previously transfused him during of an operation, was committed when the doctor became aware of the contamination and was required to reveal it. The statute of limitations for the offense of failure to provide continued assistance begins to run on that date (Crim., September 17, 1997, Bull. N ° 300,
These, very briefly, are the main features of medical criminal liability. The examples cited show that the practitioner’s conviction is most often based on serious misconduct. Judicial statistics do not make it possible to quantify the volume of criminal proceedings exercised in this matter, insofar as the offenses prosecuted are not specific to doctors. During 1999, the criminal chamber of the Court of Cassation rendered only about fifteen decisions concerning doctors. Even if this number does not reflect the scale of the prosecutions before the investigating and trial courts, and in particular those terminated by the dismissal of the investigating judge, it is ultimately significant of their rarity compared to the millions of