Post-Perruche: what responsibilities for professionals?

Abstract

Damage compensation relating to handicapped new-borns, the wrongful life law, was put in place after a great controversy in France by the Perruche ruling of November 13th 2000. The French parliaments have voted a special law against wrongful life action. But questions about medical liability are not answered by the new law. For wrongful life, what are now the medical errors likely to directly provoke a handicap or aggravate it or obstruct measures to alleviate it? For a wrongful birth claim it limits parental damages to psychological damages only, due to a lack of mental preparation, whilst denying economic losses, thus preventing complete compensation arising from medical malpractice for all the other types of difficulty suffered by the parents. Why does it give a new definition of medical malpractice as a "characterized fault" and insist upon the qualification 'blatant" in the field of medical liability? For health professionals, it is a question of knowing and being acquainted with the errors that fall under their liability with regard to handicapped persons and a "characterized fault" with regard to parents. It is through a review of past and present case law that we will try to answer these medical questions. All court rulings that awarded monetary damages to the child were reviewed. We include only three decisions after the new law, which do not allow damage compensation in respect of a handicapped new-born. The rulings incorporate decisions taken by the French Supreme Court, of the council of state as well as by courts of appeal. Failure of voluntary termination of pregnancy, missing rubella immune antibody, omission of mandatory tests during pregnancy, typical medical fetal malpractice, were and are professional faults.