DECISION ALLOCATING A PROVISION AND CIVIL APPEAL
On the first plea:
Considering articles 125, 544 and 545 of the new Code of Civil Procedure;
Whereas, except in the cases specified by law, judgments which order an investigative measure or a provisional measure cannot be appealed independently of the judgments on the merits unless they decide in their operative part part of the main proceedings ; that the absence of opening of a remedy must be noted ex officio;
Whereas, according to the judgment under appeal, that Mr. and Mrs. X …, acting as legal administrators of the property of their minor child, sued for compensation for the damage caused to their child the company Polyclinique d’Istres (the clinic) and its insurer, the company UAP now Axa, on the basis of medical liability; that the Court ordered a medical expertise and allocated a provision to the applicants;
Whereas the judgment declared admissible the appeal lodged against this judgment by the clinic and the company Axa;
That by ruling thus, while the judgment confining itself in its operative part to ordering an expert report and the payment of a provision, did not settle part of the principal, from which it resulted that it had to declare the appeal ex officio inadmissible, the court of appeal violated the aforementioned texts;
And whereas it is necessary to apply the provisions of article 627 of the new Code of Civil Procedure;
FOR THESE REASONS, and without there being any need to rule on the second ground of appeal:
BREAK AND CANCELED, in all its provisions, the judgment rendered between the parties on September 24, 2002 by the Aix-en-Provence Court of Appeal;
Said there was no reason for referral;
Declares inadmissible the appeal formed by the company Polyclinique d’Istres and the company Axa against the judgment rendered on 11 May 1999 by the tribunal de grande instance of Aix-en-Provence;
Pay the costs incurred before the trial judges and the Court of Cassation to the company Polyclinique d’Istres and the company Axa;
Considering article 700 of the new Code of civil procedure, condemns in solidum the company Polyclinique d’Istres and the company Axa to pay Mr. and Mrs. X … the sum of 302.79 euros;
Said that on the diligence of the Attorney General near the Court of Cassation, this judgment will be transmitted to be transcribed on the sidelines or following the broken judgment;
Thus done and judged by the Court of Cassation, sitting in a mixed chamber, and pronounced by the first president in his public hearing on the twenty-fifth of October two thousand and four.
THE COUNSELOR RAPPORTEUR, THE FIRST PRESIDENT,
THE CHIEF CLERK.
Resources produced by the CHAISEMARTIN and COURJON SCP, lawyer advising for Mr. and Mrs. X ….
MEANS APPENDIX to judgment n ° 223 P (Mixed Chamber)
FIRST MEANS OF TERMINATION
The contested nursing judgment is criticized for having declared admissible the appeal lodged by the Polyclinique d’Istres and the Compagnie Axa brokerage IARD against the judgment of the Tribunal de grande instance of AIX-EN-PROVENCE of 11 May 1999 ;
ON THE REASONS THAT, by deferred judgment, the Court:
– held that the principle of compensation was certain (…), – ordered an additional expertise (…), – condemned in solidum “on whose behalf it will belong” the polyclinic and its insurer Axa to pay spouses X … a provision of 100,000 F; that the data of the dispute were modified on appeal, the polyclinic contesting the origin of the infection, which appeared after the release of the child, opposing the forfeiture of warranty raised by Axa due to the non-authorization of the caregiver to perform this test alone and Axa denying her guarantee to the Polyclinique d’Istres (…); that it follows from all of these elements that, contrary to what they maintain in their writings, spouses X … do not demonstrate: – that their daughter Mandy had contracted a nosocomial infection during her stay at the Polyclinique d’Istres; – that the origin of the indisputable pathological link between the infection of the scarification of the right heel and the sepsis lies, before the release of the clinic of Mandy in a fault of practice of the test; that it is therefore necessary to reform the decision and to dismiss the spouses X … of all their requests directed against the Polyclinique d’Istres; before Mandy’s exit from the clinic in a practice fault; that it is therefore necessary to reform the decision and to dismiss the spouses X … of all their requests directed against the Polyclinique d’Istres; before Mandy’s exit from the clinic in a practice fault; that it is therefore necessary to reform the decision and to dismiss the spouses X … of all their requests directed against the Polyclinique d’Istres;
ALORS THAN the judgment which, in its device, is limited to allocate a provision and order an expertise does not slice part of the main and can not, therefore, be appealed independently of the judgment on the merits; that in the present case, it was common ground that the referred judgment had only, in its operative part, ordered a complementary expertise measure and allocated a provision of 100,000 F to spouses X …, in his capacity as legal representatives of their daughter minor; that consequently, by not declaring of office inadmissible the appeal lodged by the Polyclinique d’Istres and the Compagnie Axa brokerage IARD against this decision, the Court of Appeal violated Articles 125, 272, 544 and 545 of the new Code of Civil Procedure ;
THEN, IN ANY CASE, WHEREAS by noting, moreover, that by the judgment referred, the Tribunal had held that the principle of compensation was certain, whereas the Tribunal had confined itself in its operative part, before saying right, to order a complementary expertise measure and to allocate a provision of 100,000 F to spouses X …, ex officio, the Court of Appeal distorted the clear and precise terms of the said judgment, thus violating Article 1134 of the Civil Code.
SECOND SUBMISSION OF TERMINATION
The contested nursing judgment is criticized for having dismissed the exhibitors of all of their claims against the Polyclinique d’Istres and its insurer, Compagnie Axa;
FOR THE REASONS THAT the Polyclinique d’Istres supports precisely that the couple X …, who have the burden of proof, are failing in the administration of that: – of the nosocomial origin of the infection, – of the fault of Madame Y …; that the extracts from the reports recalled above indeed demonstrate, without being contradicted by convincing medical evidence, – that the expert is unable to date the origin of the infection and therefore to specify whether it is in the act performed in the clinic or in a lack of local care after discharge from the clinic, which excludes both proof of the nosocomial origin of the infection and proof of the fault in carrying out the imputed test to Madame Y …; that it should be noted that the expert discussed precisely the elements which were provided to him, being careful, for lack of convincing evidence, to take sides between two contradictory versions relating to the performance of the test; that indeed, Madame X … told the expert to have attended the 5 Guthrie tests made by Madame Y … to the other newborns before going out so as not to hear the tears of her daughter at the time of her own test and that she is thus able to confirm that Mrs Y … has certainly disinfected before scarification but did not disinfected again after scarification, which was strongly contested by Mrs Y …, Mrs X … clarified to the expert (2nd report) that she did not understand why his word was in doubt; that it should be noted, in response to this argument – moreover not convincing, the word of Mrs X … not having more probative value than that of Mrs Y … because of an identical implication in the solution of the dispute -, that Mrs X … first declared to the expert that Mrs Y …, overwhelmed by the care to be given to 23 newborns (first report) had not disinfected them, that heard within the framework of the 2nd report, it amended its declaration to reduce the number of tests carried out to 6, and the non-disinfection in the phase after the scarification, that the Polyclinique d’Istres, at the request of the expert, investigated the fate of the 5 other newborns tested on the 22nd. 03.1995 by Madame Y …: the certificates of the pediatricians for 4 of them (the fifth could not be found) show that they did not present any infectious episode following these tests; that in their summary conclusions, spouses X … consider, in the alternative, that the fault of the Polyclinic of Istres is demonstrated by the fact of having allowed Madame Y …, nursing assistant, to perform an act which does not was not within his professional competence; that the expert made it clear that Mrs. Y …, nursing assistant, was not qualified to practice, alone, this test. Without even entering into the challenge of this expert assessment formulated by the Polyclinique d’Istres, the Court observed: the certificates of the pediatricians for 4 of them (the fifth could not be found) show that they did not present any infectious episode following these tests; that in their summary conclusions, spouses X … consider, in the alternative, that the fault of the Polyclinic of Istres is demonstrated by the fact of having allowed Madame Y …, nursing assistant, to perform an act which does not was not within his professional competence; that the expert made it clear that Mrs. Y …, nursing assistant, was not qualified to practice, alone, this test. Without even entering into the challenge of this expert assessment formulated by the Polyclinique d’Istres, the Court observed: the certificates of the pediatricians for 4 of them (the fifth could not be found) show that they did not present any infectious episode following these tests; that in their summary conclusions, spouses X … consider, in the alternative, that the fault of the Polyclinic of Istres is demonstrated by the fact of having allowed Madame Y …, nursing assistant, to perform an act which does not was not within his professional competence; that the expert made it clear that Mrs. Y …, nursing assistant, was not qualified to practice, alone, this test. Without even entering into the challenge of this expert assessment formulated by the Polyclinique d’Istres, the Court observed: could be found) show that they did not present any infectious episode following these tests; that in their summary conclusions, spouses X … consider, in the alternative, that the fault of the Polyclinic of Istres is demonstrated by the fact of having allowed Madame Y …, nursing assistant, to perform an act which does not was not within his professional competence; that the expert made it clear that Mrs. Y …, nursing assistant, was not qualified to practice, alone, this test. Without even entering into the challenge of this expert assessment formulated by the Polyclinique d’Istres, the Court observed: could be found) show that they did not present any infectious episode following these tests; that in their summary conclusions, spouses X … consider, in the alternative, that the fault of the Polyclinic of Istres is demonstrated by the fact of having allowed Madame Y …, nursing assistant, to perform an act which does not was not within his professional competence; that the expert made it clear that Mrs. Y …, nursing assistant, was not qualified to practice, alone, this test. Without even entering into the challenge of this expert assessment formulated by the Polyclinique d’Istres, the Court observed: subsidiarily, that the fault of the Polyclinic of Istres is demonstrated by the fact of having left Madame Y …, nursing assistant, practice an act which did not enter its professional competence; that the expert made it clear that Mrs. Y …, nursing assistant, was not qualified to practice, alone, this test. Without even entering into the challenge of this expert assessment formulated by the Polyclinique d’Istres, the Court observed: subsidiarily, that the fault of the Polyclinic of Istres is demonstrated by the fact of having left Madame Y …, nursing assistant, practice an act which did not enter its professional competence; that the expert made it clear that Mrs. Y …, nursing assistant, was not qualified to practice, alone, this test. Without even entering into the challenge of this expert assessment formulated by the Polyclinique d’Istres, the Court observed: this is. Without even entering into the challenge of this expert assessment formulated by the Polyclinique d’Istres, the Court observed: this is. Without even entering into the challenge of this expert assessment formulated by the Polyclinique d’Istres, the Court observed:
– on the one hand, that the Polyclinique d’Istres denies that Madame Y … practiced, alone, this test, carried out under the supervision of a midwife according to the statements of its director to the expert, element not validly contested by a convincing demonstration by the spouses X …; – on the other hand, that failing to demonstrate a performance of the test that does not comply with the requirements as indicated above, the causal link between a possible non-qualification and the bodily injury of the child is not established ; that it follows from all of these elements that, contrary to what they maintain in their writings of appeal, the couple X … do not demonstrate: – that their daughter Mandy had contracted, during his stay at the Polyclinique d’Istres, a nosocomial infection, – that the origin of the indisputable pathogenic link between the infection and scarification of the right heel and sepsis is, before leaving Mandy’s clinic, in a practice fault of the test; that it is therefore necessary to reform the decision and to dismiss the spouses X … of all their requests directed against the Polyclinique d’Istres;
ALORS QU’une clinic is presumed responsible for an infection contracted by a patient during an intervention carried out within it, unless proving the absence of fault on his part; that therefore, by retaining in this case that it was up to spouses X … to report the proof of the nosocomial origin of the infection of their baby appeared following the Guthrie test performed at the birth of the child at the Polyclinique d’Istres, as well as the fault of the said Polyclinique d’Istres, the Court of Appeal reversed the burden of proof in violation of article 1315 of the Civil Code;
THEN, IN ANY CASE, THAT no one can constitute a proof to itself; in the present case, it was constant that the test of Guthrie at the origin of the infection had been practiced by Madame Y …, nursing assistant not qualified to perform such a medical act; that in their conclusions of appeal, the couple X … expressly maintained that the Polyclinique d’Istres had committed a fault by letting a simple nursing assistant perform a blood sample as part of the Guthrie test when only a nurse was qualified to do so, which fault was causally related to the damage suffered since it was common ground that, according to the legal expert, there was a definite relationship between the practice of the Guthrie test and the staphylococcal sanitization from which the child was suffering; that in relying, to rule out this plea, on the ground that in order to exonerate itself from its responsibility, the Polyclinique d’Istres disputed that the nursing assistant had performed alone the disputed test, carried out, according to the statements of the director of the clinic, under the supervision of a midwife, the Court of Appeal violated article 1315 of the Civil Code;
THE CHIEF CLERK.
Publication: Bulletin 2004 MIXT. N ° 3 p. 5
Le Dalloz, 2005-03-17, n ° 11, case law, p. 757-761, observations Yves-Marie SERINET. Quarterly review of civil law, 2005-01, n ° 1, p. 187-188, Roger PERROT observations.
Contested decision: Aix-en-Provence Court of Appeal, 2002-09-24
Case law precedents: On the contrary: Civil Chamber 2, 2002-06-27, Bulletin, II, n ° 145, p. 116 (cassation); In the same sense as: Civil Chamber 3, 1998-10-07, Bulletin, III, n ° 186, p. 125 (cassation) and the judgments cited; On the inadmissibility of an appeal against a decision allocating a provision, to be compared: Plenary Assembly, 1997-12-05, Bulletin, Ass. plèn, n ° 11, p. 25 (inadmissibility) and the judgments cited.
