(P.149) (c) The affaire du sang contaminé: Part I—civil liability of the producers and suppliers

From 1952 to 1993 the supply of blood and blood products in France was governed by legislation which created ‘a quasi-public organisation of a hybrid nature’, constituting ‘a sort of service public of human blood’¹³⁴ and subjecting it to a form of monopoly, no blood being collected or supplied outside the framework of its scheme. At the centre of the French blood transfusion service was an ‘association’, with various representatives, including those of the Minister of Health, but blood was collected, processed and supplied by some 180 licensed local blood transfusion centres, some of which were private bodies and some of which formed part of local departmental or municipal public bodies. ‘In this nebula, each local centre was independent and responsible for its own activities’,¹³⁵ but, ruthlessly following the bifurcation of the French system, each centre was liable for harm caused to those receiving blood or blood products either in the administrative courts under public law (if the centre formed part of a public body) or in the ordinary courts under private law (if the centre was a private body). However, in the wake of the affaire du sang contaminé, the French blood transfusion service has twice been reorganised, in 1993 and again in 1998.¹³⁶ Here, I shall explain how French courts decided issues of liability for harm caused by blood infected with HIV, whether in the blood transfusion centres or the doctor or hospital supplying the blood or blood product under this earlier organisational scheme and then consider how this will change in part as a result of these organisational changes. I shall look later at the liability of the French State to the victims of HIV for failing properly to organise the National Blood Transfusion system¹³⁷ and at the alleged criminal responsibilities of individuals for their part in the tragedy.¹³⁸

The approach of the ordinary courts demonstrates a willingness to stretch contractual concepts to a very surprising extent. For they analysed the relationship of the ‘parties’ to the supply of blood in contractual terms, even though French regulation of the supply of blood meant that someone to whom it is supplied does not buy it (blood being ‘hors de commerce’) so as to attract the various claims arising from the contract of sale.¹³⁹ In this respect, perhaps the most interesting aspect was their treatment of the liability of blood transfusion centres. In a well-known case of 1954, a patient had been supplied in a public hospital with blood infected with syphilis, apparently ‘arm to arm’ from a donor, this having been arranged by the hospital with the Oeuvre de la transfusion sanguine d’urgence, one of the private law bodies which organised the distribution of blood before the ‘monopolistic’ system set up in 1952 took effect.¹⁴⁰ The Cour de cassation agreed that the Oeuvre should be liable in damages, even in the absence of fault, on the ground that the hospital had made a contract with it for the supply of blood for the benefit of the patient claimant which required that the blood be ‘loyale’, thereby in effect imposing an obligation de résultat as to its safety. This was a remarkable (p.150) decision, remarkable for its treatment of the Oeuvre’s liability as belonging to the ordinary courts given its involvement in the service public of supplying blood in a context far from ‘industrial or commercial’;¹⁴¹ for its reliance on an administrative law contract between a public hospital and the Oeuvre as the basis of a private law claim; and, even as a matter of private law, for its fictitious finding of a contract between the hospital and the Oeuvre for the benefit of the patient.¹⁴² In the result, the Oeuvre was liable to the patient without proof of either fault or defect in the blood and with no defence that the infection in the blood was caused by circumstances beyond its control.

In 1995 in a pair of cases concerning the supply of blood contaminated with HIV the Cour de cassation followed this very strict contractual approach to the liability of private law blood transfusing centres, holding that they were ‘bound to supply to recipients products free from defects and unable to escape liability under this obligation de sécurité except by showing cause étrangère, which would not include an internal defect in the blood, even if undetectable.¹⁴³ So, while the Cour de cassation placed liability in the mould of an obligation de sécurité de résultat, unlike its decision in 1954 it did not appear to consider it necessary to overcome the lack of privity of contract between a patient in a private clinic and the transfusion centre by finding a contract for the benefit of a third party.¹⁴⁴ On the other hand, the Cour de cassation held that the clinics in which the blood was supplied to the patients owed them only an obligation de prudence et diligence in respect of the blood products, explicitly requiring the juges du fond to decide whether or not a clinic had the possibility of checking the quality of the products received from the transfusion centre.¹⁴⁵ Taken together, it is clear that the Cour de cassation considered that (absent any fault) liability should be borne by the transfusion centres rather than the private clinics or doctors.

It was also in 1995 that the Assemblée of the Conseil d’Etat reviewed its own treatment of the liability of blood transfusion centres and hospitals,¹⁴⁶ in the context of some 600 claims for harm caused by blood contaminated with HIV which had been supplied in public hospitals.¹⁴⁷ The Assemblée agreed with the approach of the Cour de cassation: the blood transfusion centres, whether public or private, possessed a monopoly over the collection of blood and a supervisory role over the treatment, preparation and supply of blood products and this together with the inherent risks of these products justified imposing liability on them without fault,¹⁴⁸ but a public hospital which merely supplied blood and which did not include such a centre should be liable only for proven fault.¹⁴⁹ So while the Cour de cassation used its control over (p.151) the content of contractual obligations whereas the Conseil d’Etat preferred a more direct approach, at this stage there was considerable harmony between the two jurisdictions in their allocation of liability, imposing very strict liability on the blood transfusion centres but relieving hospitals or clinics of liability except on the basis of proven fault. This pattern has, however, been the subject of three distinct disruptive influences.

The first was Frances decision in implementing the Product Liability Directive to impose liability for defects of safety on all ‘business suppliers’ without the restrictions which article 3(3) of the Directive contained.¹⁵⁰ This suggested that private (and possibly also public) hospitals would be liable without proof of fault despite this earlier jurisprudence. However, this potential effect did not survive the amendment of the French implementing legislation following its censure by the European Court of Justice in April 2002.¹⁵¹ The second disruptive influence was the reorganisation of the French blood transfusion service in 1998 which created a new public body, the établissement française du sang (EFS), whose role is to supervise and organise the provision of blood within France.¹⁵² While this body acts through ‘local establishments’, they do not possess legal personality¹⁵³ and this means that any future liability in a blood transfusion centre will fall on the EFS and within the jurisdiction of the administrative courts.¹⁵⁴ So an institutional reorganisation led necessarily to the abandonment of the ordinary courts’ role in imposing liability on this category of defendant. Thirdly, however, legislation in March 2002 was enacted which appears to unify the basis of medical liability, including of hospitals and doctors in respect of the supply of blood, but whose effect remains not entirely clear.