Medical liability and therapeutic hazard

Law no. 2002-303 of March 4, 2002 on patients' rights, known in France as the Kouchner law, split French medical liability in two. On one side, the physician and the hospital answer only for their fault, which the claimant must prove, and their liability insurance is compulsory. On the other sits the no-fault accident, the procedure that met accepted medical knowledge and still went wrong: above a severity threshold, it is compensated by national solidarity through ONIAM, the public office set up for the purpose. For the insurer, the split has two merits. It keeps courts from calling something fault just to allow compensation, a familiar drift in pure liability systems, and it moves out of insurance a band of losses that would be uninsurable. The weak point is the boundary itself. It is drawn file by file, on expert assessment, and the same claim can tip to either side depending on whether a failure to inform or a loss of chance is found.