4. Liability for Medical Services and Medical Products

In France, the provision of health care belongs both to the public and private sectors of the economy. Historically, most provision was private, by doctors exercising their ‘liberal profession’ and by private clinics; public hospitals were reserved for the poor. While private care remains very important, the increasing sophistication of modern health care has meant that some types of intervention are found only in the public sector, so that (as of 1998), some 65 per cent of hospital beds were in public hospitals.⁷⁴ However, the financing of the public and private sectors rests on a fundamentally different basis from the publicly financed UK National Health Service. For in France, in principle, patients pay for their health care whether it is provided in the public or private sectors, but are then reimbursed in part by their medical insurer (though in certain cases the insurer pays direct).⁷⁵ In France, medical insurance (assurance maladie) is compulsory, different categories of the population and their families being insured with different bodies.⁷⁶ The remaining five per cent of the population have recently been included within a ‘universal illness cover’ for all French residents.⁷⁷ In addition, most people also take out supplementary private health insurance.

(p.142) In both the public and private sectors, medical treatment (whether diagnostic or surgical) is often accompanied by the use of products. The most obvious and widespread example is the use of pharmaceutical drugs, but other products are used, for example, X-ray machines or blood plasma. Typically, these products are manufactured by commercial companies, whether national or international, though their use in the French market is closely regulated. In the case of pharmaceuticals, they are supplied to patients either by a hospital or by pharmacists (pharmaciens officines) which are private, professional businesses. However, some types of ‘medical product’ are produced and/or supplied by public bodies or by private bodies exercising a recognisably public function. Of these, the supply of blood products in France is a striking example, as it was thrust into the limelight by the affaire du sang contaminé.

Here I wish, therefore, to look at the way in which French law has dealt with issues of liability in respect of the products used and supplied in the course of medical treatment. This is a complex subject made more difficult by the division of the substantive law between private and administrative law, by a series of changes in approach by the courts and by a legislative declaration of the basis of liability for both public and private health care in 2002 which sought to clarify but leaves some questions unanswered, particularly as regards products, whether these are supplied to patients or otherwise used in treatment.⁷⁸ In these developments, the role of medical liability insurance has become central, for while it has long been common in France, in 2002 it was made compulsory for all private practitioners, for private clinics and hospitals, for public hospitals (though not for practitioners working in public hospitals who enjoy a personal immunity⁷⁹), and for the producers and suppliers of ‘health products,’⁸⁰ but within a few months the refusal of insurance companies to cover some clinics and doctors led to the State agreeing to undertake a proportion of the risk.⁸¹ I shall also look at the liabilities incurred by others in the chain of distribution of medical products, notably pharmacists and manufacturers.