Medical duty to inform

The medical duty to inform requires the professional to tell the patient, before the procedure, what can go wrong. Article L. 1111-2 of the French Public Health Code, from the law of March 4, 2002, covers frequent or serious risks that are normally foreseeable, the other options available and the consequences of refusal. A serious risk must be disclosed even if it is rare. The burden of proof has rested on the physician since the Hédreul ruling of the Cour de cassation (February 25, 1997), and it can be met by any means: a signed form helps but does not always suffice. Case law built up in two stages. First came loss of chance: the judge estimates the probability that the patient, properly informed, would have declined, and applies that percentage to the bodily injury award. Then, on June 3, 2010, the first civil chamber held that the breach in itself causes harm that a court cannot leave uncompensated. The Conseil d'État followed in 2012 with damages for being unprepared, provided the victim proves the harm was real. For a medical malpractice underwriter, these are files with no technical fault, where the procedure was done right. Severity stays moderate when the loss of chance is small, but frequency adds up. If the accident is also a serious therapeutic hazard, the share not covered by loss of chance may fall to ONIAM. Not to be confused with obtaining consent, which follows from it.