Forgetting a clamp in the stomach during an operation, operating on the wrong side, getting the wrong medicine or diagnosis… Doctors are far from infallible and each year, in France, several thousand patients are victims of an error medical. Serious events often hidden by the medical profession and which oblige the patients who are victims of them to lead a real fight to know the truth. Medical errors is the theme chosen by Marina Carrère d’Encausse for the first Health Survey program for this 2021-2022 season. A program broadcast on France 5 this Tuesday, October 5 at 8:55 p.m.
“No one knows the exact number of medical accidents in hospitals and clinics. Patient associations put forward alarming figures: 450,000 serious adverse events occur each year and are the cause of 60,000 deaths. These accidents can be the consequence of a proven fault on the part of the doctor or else fall under what is called a therapeutic hazard, in other words fault with bad luck. Medical error or therapeutic hazard, how to find your way around? What are the rights of patients? And how to get compensated: these are the questions that the guests of the show will try to answer. the debate will be preceded by a documentary entitled Medical errors, the fight for the truth, directed by Bruno Timsit, which will present the struggle of patients who are victims of medical errors:
- Nathalie, who became deaf and paraplegic due to an anesthetic accident 3 years ago.
- Huguette, who lost her husband following a terrible misdiagnosis in the emergency room
- Cécile and Luc who are fighting for the memory of their father, the alleged victim of a surgeon nicknamed “the butcher of Grenoble” in the media.
What are the causes of medical errors?
Surgery, especially orthopedic surgery, is logically the main cause of so-called “serious adverse events” (SAEs). Some are caused by errors on the part of the medical team or the surgeon. In addition to invasive procedures (operation, endoscopy, etc.), health products (drugs, pacemakers, etc.) are often implicated and, to a lesser extent, nosocomial infections. 80% of SAEs occurring during hospitalization are linked to the patient’s fragility (age, chronic illness, etc.) and in one out of five cases to patient behavior problems (poor treatment, refusal of care, etc.) ).
The hazards would occur more frequently in the CHUs (university hospitals) because of the cases treated, which are often more urgent and complex. The causes are multiple: poor organization, lack of communication, lack of supervision, poorly adapted infrastructure… Others occur without any fault, what is called a medical hazard, such as shock anaphylactic during anesthesia. Their common point? Lead to damage, sometimes heavy: hospitalization or lengthening of the duration of hospitalization, disability or even, exceptionally, death.
Who can claim compensation?
All the victims of a serious medical accident, whether it originated in a preventive act, a diagnostic act or an act of care, can make a claim for compensation, provided that the act in question is subsequent to the September 4, 2001. Is considered as a “serious medical accident”, an accident having resulted in damage above the following thresholds:
- a rate of permanent damage to physical or psychological integrity (AIPP) greater than 24%
- or a temporary cessation of professional activities (ATAP) for a period of at least six consecutive months or six non-consecutive months over a period of twelve months
- or temporary discomfort constituting a temporary functional deficit (TFD) greater than or equal to a rate of 50% for a period at least equal to 6 consecutive months or 6 non-consecutive months over a period of 12 months.
>> Access to medical records: if you think you are the victim of a medical error, the Kouchner law of March 4, 2002 authorizes you to access your complete medical file. You have to request it (the National Consumer Institute has posted an example of a standard letter to be sent with acknowledgment of receipt) accompanied by a copy of the patient’s identity document from the hospital or practitioner concerned. They then have 8 days from receipt of the request (or 2 months if the last document dates back 5 years) to communicate the file. But it is not always so simple: “We regularly have victims who have difficulty obtaining their medical file”, testifies Erik Rance, director of ONIAM (National Office for Compensation for Medical Accidents). Once you have the medical file in hand, all you have to do is understand the jargon. You can request an interview with a referring doctor or the mediator of the hospital involved, but also ask for help from your doctor.
Evaluate if there is fault or not
Before any legal action, it is important to be well informed (patient association, Defender of Rights, etc.) and to avoid any haste. You may benefit from legal protection in the event of a medical accident included in your insurance contracts (home, health, etc.). “I recommend having your file studied by an association or a lawyer before initiating legal proceedings, because nothing is worse than committing tens of thousands of euros to find out from the expertise that it there is no fault and that we have lost everything, because there it is a bit of a double penalty”, warns Dr Dominique Michel Courtois, president of the AAVAC (Association for the assistance of accident victims bodily). An important point remains to be reviewed, the doctor-patient relationship in the event of a medical accident. “60% of the files we deal with are due to poor communication. Once the doctor realizes his mistake, he enters his ivory tower”, adds Dr. Courtois.
Prioritize amicable settlement
If there is indeed a medical error but the sequelae are minor, we prefer the amicable transaction directly with the hospital’s insurance or that of the doctor. “If the medical error is serious, victims are advised to contact the CRCIs (Regional Commission for Conciliation and Compensation for Medical Accidents), because they have the advantage of making it possible to quickly obtain a free contradictory expertise”, explains Dr. Courtois. These commissions are intended to fpromote the resolution of conflicts between users and health professionals through conciliation, directly or by appointing a mediator.
>> Note that poTo be compensated, the victims can seize the Commissions directly without going through a lawyer.
- When the fault is recognized, it is up to the insurer of the doctor or the health establishment to compensate the victim. If he refuses to follow the advice of the CRCI, ONIAM can replace him in order to compensate the victim as soon as possible. Then ONIAM takes legal action against the insurer.
- If it is a medical hazard, ONIAM opens a right to compensation. “We pay under national solidarity”, explains Erik Rance. Certain criteria, in particular seriousness, must be met for the file to be accepted.
The compensation is based on the after-effects that you present at the time of the expertise. This can range from a few thousand to a few million euros. It is calculated according to various damages (partial permanent incapacity, suffering endured, aesthetic damage, etc.). According to the Observatory of Medical Risks, the average amount of compensation is just over 112,000 euros.
As a last resort, go to court
If you refuse the offer out of court or if you go directly to court, you must go to an administrative court if it is a public establishment, a district court if it is a private clinic. To get help:
- The AAVAC:Association for assistance to victims of bodily accidents, 136 Av. Louis Barthou, 33200 Bordeaux (05 56 42 63 63)
- ONIAM:National office for compensation of medical accidents, Altaïs Tower – 1 place Aimé Césaire, 93100 Montreuil (01 49 93 89 00)
- The CRCIs: Regional commissions for conciliation and compensation of medical accidents (find your regional commission on this interactive map)
- The defender of rights : 0 810 455 455 or www.defenseurdesdroits.fr
Sources:
- Public Health Code: articles R1111-1 to R1111-7 : access to personal health information
- Service-public.fr : Your rights: the medical file
Read also :
- Medical accidents: between 30,000 and 40,000 deaths per year
- Professional burnout of doctors, a potential risk for the patient
- If your doctor makes a mistake, it’s not (really) their fault
