BIANCHI STOP
LexInter | July 2, 2007 | 0 Comments

BIANCHI STOP

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE
Considering the decision of September 23, 1988 by which the Council of State ruling on the litigation, before ruling on the request of Mr. Bianchi, ordered an expertise in order to determine the conditions under which was injected on October 3, 1978 , a contrast product to the patient, prior to the arteriography;

Having regard to the other documents in the file;

Having regard to the code of administrative courts and administrative courts of appeal;

Considering the ordinance n ° 45-1708 of July 31, 1945, the decree n ° 53-934 of September 30, 1953 and the law n ° 87-1127 of December 31, 1987;

After hearing in open court:

– the report by Mr Damien, State Councilor,

– the observations of SCP Waquet, Farge, Hazan, lawyer of Mr. Philippe Bianchi and of Me Le Prado, public assistance lawyer in Marseille,

– the conclusions of Mr. Daël, Government Commissioner;
On responsibility:

Considering that, by decision of September 23, 1988, the Council of State ruling on the litigation rejected the pleas brought by Mr. Bianchi that the vertebral arteriography he suffered on October 3, 1978 at the hospital of Timone in Marseille had not been performed by a qualified medical team, because the patient’s consent had not been obtained and because the post-operative care he received was insufficient; that these points were definitively judged and cannot be called into question;

Considering that it emerges from the report drawn up following the new expertise ordered by the aforementioned decision of the Council of State on the conditions under which the contrast product necessary for the arteriography was injected into Mr. Bianchi, that this product played no role in the occurrence of post-examination disorders, that there was no evidence to suggest a risk of a reaction or hypersensitivity to iodine, and that, if the report of the The arteriography could not be found, the findings made immediately after the examination lead to the conclusion that the total dose of iodine injected was not excessive compared to the standards commonly accepted at the time; what’ expert considers as the probable cause of the accident an occlusion secondary to the arteriography, at the level of the artery supplying the cervical cord, caused by a small bubble or a small clot released during the exploration or evacuation of the contrast product, constituting an inherent risk in this type of examination; that results from these findings and appreciations of the expert, which are not denied by the other documents in the file, that no fault can be noted in the execution of the arteriography suffered by Mr. Bianchi; caused by a small bubble or a small clot released during the exploration or evacuation of the contrast product, constituting an inherent risk in this type of examination; that results from these findings and appreciations of the expert, which are not denied by the other documents in the file, that no fault can be noted in the execution of the arteriography suffered by Mr. Bianchi; caused by a small bubble or a small clot released during the exploration or evacuation of the contrast product, constituting an inherent risk in this type of examination; that results from these findings and appreciations of the expert, which are not denied by the other documents in the file, that no fault can be noted in the execution of the arteriography suffered by Mr. Bianchi;

 

Considering, however, that when a medical act necessary for the diagnosis or treatment of the patient presents a risk the existence of which is known but the realization of which is exceptional and for which there is no reason to believe that the patient is particularly exposed to it, the responsibility of the public hospital service is engaged if the execution of this act is the direct cause of damage unrelated to the initial state of the patient as with the foreseeable evolution of this state, and presenting an extremely serious character;

Considering that the risk inherent in vertebral arteriography and the consequences of this act performed on Mr. Bianchi meet these conditions; that therefore, Mr Bianchi is founded to request cancellation of judgment attacked, by which the administrative court of Marseilles rejected his request tending to the condemnation of public assistance in Marseilles;

On the damage:

Considering that it results from the investigation and in particular from the expert reports of first instance, that following the arteriography which he underwent on October 3, 1978, Mr. Bianchi, born on June 22, 1936, is suffering from quadriplegia predominantly in the lower limbs, with pyramidal syndrome and sensory disorders, resulting in motor impotence both in walking and in the upper limbs, with accentuation of osteotendinous reflexes; that he suffers from significant pain and resistant to therapy and sphincter disorders; that he needs the constant help of a third person; whereas, however, in assessing the compensable damage, account should be taken of the patient’s condition prior to hospitalization; that Mr. Bianchi presented, at the time of his admission to the hospital, dizziness with nausea and neck and occipital pain, a facial paralysis of which he retains sequelae; that his state of health had obliged him to cease his work since the beginning of 1977; that a fair assessment will be made of the damage resulting from the arteriography, fixing the compensation due to Mr. Bianchi at the sum of 1,500,000 F; year 1977; that a fair assessment will be made of the damage resulting from the arteriography, fixing the compensation due to Mr. Bianchi at the sum of 1,500,000 F; year 1977; that a fair assessment will be made of the damage resulting from the arteriography, fixing the compensation due to Mr. Bianchi at the sum of 1,500,000 F;

On interest:

Considering that Mr. Bianchi is entitled to interest on this sum from October 1, 1982, the date of presentation of his request;

Considering that the capitalization of interests was requested on June 7, 1985, September 11, 1987, November 22, 1991 and November 23, 1992; that on each of these dates, at least one year of interest was due; that, consequently, in accordance with the provisions of article 1154 of the civil code, it is necessary to grant these requests;

On the costs of expertise:

Considering that it is necessary, in the circumstances of the case, to put the costs of first instance expertise and appeal to the charge of public assistance in Marseille;
DECIDES:
Article 1: The judgment of the administrative court of Marseille of November 8, 1984 is annulled.
Article 2: The public assistance in Marseilles is condemned to pay to Mr. Bianchi the sum of 1,500,000 F. This sum will bear interest at the legal rate as from October 1, 1982. Interest due on June 7, 1985, September 11, 1987 , November 22, 1991 and November 23, 1992 will be capitalized on these dates to produce interest themselves.
Article 3: The expertise costs incurred in first instance and in appeal are charged to public assistance in Marseille.
Article 4: The surplus of the conclusions of the request is rejected.
Article 5: This decision will be notified to Mr. Bianchi, public assistance in Marseille and the Minister of State, Minister of Social Affairs, Health and the City.

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