Liability of public hospitals

Under French law, public hospitals are classified as public administrative establishments (établissements publics administratifs). As such, their liability is governed by administrative law and administrative case law, in particular that of the French Conseil d’État.

The liability regime applicable to public hospitals is primarily structured around fault-based liability, no-fault liability, and the distinction between harm arising from medical acts and harm linked to the organisation of the hospital service.

1. Jurisdiction of the Administrative Courts

As legal persons governed by public law, public hospitals fall under the exclusive jurisdiction of the administrative courts in matters of liability. Consequently, where a patient (or other individual) believes they have suffered harm as a result of the functioning of a public hospital, they are, in principle, required to refer the matter to the tribunal administratif. This procedural distinction sets public hospitals apart from private clinics, which are subject to private law and fall within the jurisdiction of the juge judiciaire (civil courts).

2. Fault-Based Liability

The default liability regime is that based on fault. It is incumbent upon the claimant to establish that a fault was committed by the hospital. Such fault may arise from a medical act (e.g. misdiagnosis, inappropriate therapeutic decision, surgical error), or from a failure in the organisation of services (e.g. lack of monitoring, defective equipment, or delay in treatment).

However, administrative case law has progressively relaxed the burden of proof placed on claimants. Courts may now rely on serious, precise, and consistent presumptions or circumstantial evidence in lieu of direct proof of fault. In particular, in cases of infections nosocomiales (hospital-acquired infections), the public hospital may be presumed liable unless it can demonstrate that all appropriate preventive measures were implemented.

3. No-Fault Liability

In specific circumstances, public hospitals may be held liable in the absence of any established fault. This constitutes an exceptional regime aimed at improving access to compensation for victims.

Examples of such scenarios include:

• Serious nosocomial infections: Pursuant to the Law of 4 March 2002 (known as the “Kouchner Law”), public hospitals may be held strictly liable for nosocomial infections resulting in a permanent disability of at least 25%, unless an external cause can be demonstrated.
• Non-fault medical accidents: Where acts of prevention, diagnosis or treatment result in serious and abnormal injury, compensation may be awarded through national solidarity mechanisms, specifically via the ONIAM (National Office for Compensation of Medical Accidents).
• Harm caused to volunteer collaborators: No-fault liability may also apply where third parties or occasional collaborators of the public hospital suffer injury.
• Use of defective or dangerous medical products: If damage is caused by a medical device or pharmaceutical product, without fault attributable to the hospital, no-fault liability may still be engaged.

4. Role of ONIAM and Compensation Procedure

Since the implementation of the Kouchner Law, individuals affected by medical injury may refer their claim to the Commission de Conciliation et d’Indemnisation (CCI), thereby avoiding a potentially lengthy and costly judicial process. Where a non-fault and serious medical accident is acknowledged, ONIAM may intervene to compensate the victim under the principle of national solidarity. This mechanism seeks to simplify and expedite the compensation process for medical accident victims.

5. Assessment and Compensation of Damages

Where liability is established, compensation must cover the entirety of the injury suffered, including physical harm, psychological suffering, loss of earnings, loss of amenity, and any other heads of loss. The assessment of damages is carried out in accordance with the principles of administrative liability and involves a detailed evaluation of the impact of the injury on the claimant’s life.