Clinical negligence in hospitals in France and England

Abstract

This article arose from the back-to-back presentations by Michael Kelly and Patrice Métayer to the Anglo-French Medical Society in 2013 on the French and English legal systems handling a case of alleged clinical negligence as it proceeds from complaint to settlement or judgment in the two jurisdictions. Both systems have a hospital-based first stage with various avenues being available for amicable resolution, the French version being more regulated and prescribed than the English one. In both jurisdictions fewer than 5% cases go down the criminal route. Before the court is involved, in England there is an elaborate lawyer-controlled phase involving negotiations between the two sides and their experts which is expensive but often leads to pre-trial settlement for significant sums of money. Medical experts are central to all of this. In England they are largely unregulated and entirely advisory in an open market, in France they are both regulated and supervised by judges, being placed on official lists. These experts take a major inquisitorial role in a Debate between the two sides, combining the functions of Single Joint Expert (SJE), arbiter and mentor. If agreement is not reached, a second Debate before a different Expert is arranged. In both countries fewer than 5% cases reach a court for a hearing before a judge. In England a trial is an elaborate lengthy, expensive adversarial contest where all of the issues are rehearsed in full with factual and expert evidence, whereas in France in a contested case the judge reviews the reports of the two Debates with the lawyers who were involved (and not the experts, factual witnesses or parties).