CIVIL LIABILITY
I/- INTRODUCTION-DEFINITION
The responsibility of the dental surgeon is threefold:
– criminal;
– civil;
– disciplinary.
Criminal liability is a source of sanction; it can be called into question, whatever the quality and mode of practice (liberal or public hospital); it is sufficient, for this, that the fault constitutes an offence whose repression is provided for by the penal code; they are numerous: example: experimentation without the consent of the individual; false certificates.
Disciplinary responsibility is also a source of sanction; it can be called into question when the dental surgeon has not respected the ethical rules, for example: failure to respect the dignity of the human person.
Civil liability is a source of compensation; the principle of civil liability, set out in Article 124 of the Civil Code, is as follows: “any act whatsoever of a person which causes damage to another obliges the person through whose fault it occurred to repair it”.
There are two types of civil liability:
– contractual liability;
– administrative responsibility.
II/ – CONTRACTUAL LIABILITY
1/ – It is that of the liberal dental surgeon or the public hospital who performs a liberal act; a contract is created between the dental surgeon and the patient.
This results in an obligation of means, not of results; the dental surgeon undertakes to treat, not to cure.
Informed consent of the patient is required.
The obligation of results only concerns a few very specialized sectors: cosmetic surgery, medical analysis laboratory examinations, etc.
The dental surgeon undertakes to provide the patient with care that is not just any care, but attentive and consistent with current scientific data.
2/- BASIS OF CONTRACTUAL LIABILITY :
Contractual liability remains based on fault, which the patient must prove; the fault results from the non-performance of contractual obligations;
The action for compensation is prescribed by fifteen years from the day on which the damaging act was committed (article 133 of the civil code).
CIVIL LIABILITY
2-1/- ERRORS AGAINST HUMANISM:
The dental surgeon must respect the patient’s person and their dignity; this respect implies:
2-1-1- Respect for professional secrecy ;
2-1-2- The duty of assistance:
– assistance to a person in danger;
– he is allowed to refuse his care but only outside of emergencies and if he stops doing so, he must ensure its continuity;
2-1-3- the obligation to intervene only with the patient’s consent.
2-2-/- MEDICAL TECHNICAL FAULTS:
These are the faults which fall within the scope of non-performance of the obligation of care; the care must be in accordance with the acquired data of science and correspond to the implementation of all the human or technical means necessary to obtain the best treatment;
This is indeed an obligation of means and not of result; unless the dental surgeon has committed to a given result; there is in fact, in any medical act a part of “random” which does not allow the result to be affirmed; (random or risk: example of complication after a vaccination, this complication is known but extremely rare).
III/ – ADMINISTRATIVE RESPONSIBILITY
1/- DEFINITION:
When the damage results from the actions of a hospital dental surgeon, it is the administration which is called into question; its liability is incurred as a result of the actions of its employee;
The patient must contact the director of the public health establishment to request compensation; the latter will either grant or refuse the request;
It is when the public health establishment refuses that the administrative court can be contacted;
The administration’s liability is therefore systematically incurred but the public health establishment still has the possibility of taking action against its employee if it can prove that the fault constitutes “a fault separate from the service”.
The fault detachable from the service : it corresponds to a fault committed by a hospital dental surgeon by non-compliance with the regulations or service instructions; it is generally covered by his personal insurance.
Examples:
– faults committed outside the function;
- Offences committed consciously with the intention of causing harm, for example: false certificates, criminal abortion;
- Experimentation undertaken on a patient without any therapeutic benefit;
- Non-urgent surgical intervention performed against the patient’s wishes.
- Working while intoxicated;
- Wrongful abstention;
- Refusal to travel during a guard duty, even if it does not constitute failure to assist a person in danger.
Liability without fault : it is based on risk; apart from the existence of a fault, the administration’s liability may in certain cases be incurred, for example: nosocomial infections; damage caused to voluntary blood donors; area of compulsory vaccinations.
CIVIL LIABILITY
2/- BASIS OF ADMINISTRATIVE RESPONSIBILITY
The administration’s liability could be incurred when there is:
2-1- FAULT.
2-2- DAMAGE.
2-3- A CAUSAL LINK BETWEEN DAMAGE AND FAULT
2-1- FAULT:
Fault must be distinguished from error; as a first approximation, error corresponds in dental surgery to the differential diagnosis; this error becomes faulty if the dental surgeon does not use the means of investigation at his disposal and considered to be in accordance with medical data.
The fault corresponds to the failure to fulfill a pre-existing duty that a prudent person placed in the same circumstances would not have committed.
The same offences can be held criminally and civilly (performing a prohibited act or failing to perform a compulsory act).
It should be noted, however, that civil liability of an administrative nature may be incurred through the fault of subordinate persons or through things placed in one’s custody, unlike criminal liability where the fault must be personal.
■ FAULT: may be:
– simple ;
– heavy;
– fault in the organization of the service;
▲- serious misconduct : concerns medical acts:
+ a medical or surgical diagnosis;
+ the choice of an additional examination;
+ the choice of an operating method;
+ the development of a treatment;
▲- simple fault : concerns acts of care:
+ administration of a medication;
+ making a dressing;
+ monitoring of a patient;
▲- fault in the organization of the service:
Their domain is very broad; example:
- Lack of supervision leading to the strangulation of a child by the straps holding him to his bed;
- The abduction of a newborn baby from the maternity ward of a hospital;
- The substitution of a newborn child in the maternity ward of a hospital;
- Injuries caused by the malfunction of an X-ray device;
- Injuries caused by a heating appliance.
Therefore, the hospital or administration is liable when the fault is personal (medical act or act of care) or impersonal (fault in the operation of the service).
The administration can take action against its employee if it can prove that the fault constitutes “a fault separate from the service”.
CIVIL LIABILITY
2-2- DAMAGE:
A/ THE MATERIAL ELEMENT OF BODILY INJURY
- Losses suffered:
All expenses to which the victim was exposed: medical and pharmaceutical costs, hospitalization costs, equipment and prosthesis, travel, third-party assistance.
- Missed gains:
These are the sums of money that the victim is deprived of, resulting from bodily harm.
B/ THE MORAL ELEMENT OF BODILY INJURY
Generated by the physical and moral suffering endured by the victim and the awareness that he has of the diminution of his personality.
C/ THE CHARACTERISTICS OF THE DAMAGE
- The damage must be certain: the only one that must be taken into consideration is that which is certainly due to medical negligence and not that which is due to the pathological condition which motivated the medical act .
- The damage must be current: that is, it must exist at the time the request for compensation is made.
2-3-THE CAUSAL LINK
There are circumstances where the reality of the causal link is not so simple; on the contrary, there is no doubt about the cause-and-effect relationship between someone who deliberately attacks someone to steal their money and the injuries they cause them.
VI/- CONCLUSION
The professional responsibility of the dental surgeon is threefold:
Criminal and disciplinary (personal) as well as civil (more often impersonal, sometimes personal in the event of misconduct separate from the service).
Civil liability is covered by the employer ( hospital ), except in the event of fault separate from the function.
In the private sector, you must take out professional liability insurance to be covered.
Click case:
Mrs. X, aged 50, unemployed, with no particular ophthalmological history; the ophthalmologist died of a drop in visual acuity in both eyes due to a cataract predominantly in the left eye; visual acuity was 6/10 in the right and 2/10 in the left and died of operating on both 8 days apart, starting with the right eye; the first operation was performed as an outpatient procedure without incident; 7 days later the left eye was operated on under the same conditions but the following night, the right eye operated on first became painful.
Mr. X consulted her ophthalmologist 15 days later, there was then a 4-cross Tyndall; antibiotics were prescribed by general and local route. 2 months later there was a flare-up of uveitis with the appearance of a hypopion; Mr. X was hospitalized, the puncture of the anterior chamber revealed a yeast candida parosilosis. Subsequently, despite TRT for 2 years, the right eye became totally blind.
- Is there medical liability?
- What kind of nature is it?
- At what level is it located?
- What are the consequences for the ophthalmologist?
CIVIL LIABILITY
Untreated cavities can damage the pulp.
Orthodontics aligns teeth and jaws.
Implants replace missing teeth permanently.
Dental floss removes debris between teeth.
A visit to the dentist every 6 months is recommended.
Fixed bridges replace one or more missing teeth.