The Facts
In this case, during a delivery, the midwife had to perform a paradoxical rotation of the head of the fetus; the baby was born with a malformation. The medical experts instructed by the court considered that the act of turning the head was not indicated and wrong and could have caused the malformation; however they could not assert if this malformation was the result of the rotation of the head, or if it was a fetus condition prior to the delivery.
The parents of the child brought the case before the court, which followed the medical experts and considered that the act of turning the head was wrong; as a result, the court ordered the hospital to compensate the child for the entire damage resulting from the malformation.
The hospital lodged an appeal and the court of appeal reduced the child’s compensation by considering that the wrongful act only caused the child to lose a chance to avoid the damage, which was estimated at 15%. In other words, the court considered that there was a 15% chance that the damage was the result of the midwife’s fault, and 85% of a previous condition.
Our Analysis
We believe that the solution affects considerably the concept of loss of chance in French law.
Loss of chance is usually defined as the certain loss of a favorable eventuality.
The notion of loss of chance is used in circumstances which are known with certainty, to evaluate the probability that the damage would have occurred if the situation had been different, i.e. if the fault had not been committed.
In this case, the expertise did not permit to determine the current situation; it was not determined if the damage resulted from the wrongful act, or if it was prior to the wrongful act. The causal link between the fault and the damage was not determined. However the victim is compensated, partially, based on the notion of loss of chance, which consists here in assessing the probability of the causal link.
In our opinion, this is a profound and serious violation of the principle that the causal link must be certain.
