Infections that occur during a medical procedure can have serious consequences for patients, such as amputation of a limb, or death. However, they are not compensated in the same way, depending on whether they were contracted in a “health establishment” (hospital and private clinic) – they are then qualified as “nosocomial” – or in an individual practice (dentist, dermatologist , etc).
Since the Kouchner law of March 4, 2002, healthcare facilities are presumed to be responsible for these infections. They must therefore compensate their patients, unless they demonstrate that the disease is linked to a “foreign causes which is very rare.
On the other hand, liberal doctors only owe compensation if their patients prove that they have committed a ” mistake “. This “different treatment” is explained, in particular, by the nature of the acts performed, and by the lower importance of infections among city doctors, explained the Constitutional Councill, the 1er April 2016 (2016-531).
What about a cosmetic surgery clinic? This is the question posed by the following case: on February 25, 2014, Mme X undergoes a breast reduction operation, in an establishment called Clinic of doctor Y. She has an infection, which obliges her to have another operation and to undergo a skin graft.
“A real medical team”
The experts whose designation she obtains conclude that the infection is indeed “associated with the care provided by Doctor Y, but that it does not result from a ” mistake “ of this practitioner. His lawyer, Mr.and Jérémie Ghez, then advised him to sue Mr. Y, in his capacity as head of a health establishment, so that he pays him provisional compensation of 50,000 euros. Mr. Y replies that a “autonomous cosmetic surgery facility” does not have the status of a health establishment.
Mand Ghez protests that this structure, Who “is equipped with four rooms and an operating theater », which works with “a real medical team” (anaesthesiologist, nurses, etc.) and who practices “invasive care procedures”, could not “take over from city medicine”. He obtained satisfaction, in the first instance, in Marseille (Bouches-du-Rhône), and on appeal, in Aix-en-Provence.
The Court of Cassation confirms, on December 8, 2021 (19-26.191), that“a stand-alone cosmetic surgery facility constitutes a health service” and that she is “subject to full responsibility for nosocomial infections”. Its manager must therefore compensate the patient, whose illness is not related to “a foreign cause”.
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