Information Note on the Court’s case-law No. 66
July 2004
Maurice v. France (dec.) - 11810/03
Decision 6.7.2004 [Section II]
Article 14
Discrimination
Amount of compensation paid to parents of child born with a handicap undetected during pregnancy as a result of an error in diagnosis: admissible
Article 6
Civil proceedings
Article 6-1
Fair hearing
Equality of arms
Immediate application of a new law to pending proceedings: admissible
The applicants, a married couple, were acting both on their own behalf and in the capacity of legal representatives of their underage children. The first applicant, who had already given birth to a disabled child a few years previously, gave birth to a second child, C., who was subsequently discovered to suffer from the same incapacitating illness, even though the prenatal diagnosis requested by the parents had attested that the unborn child was healthy. A report by the head of the analysis laboratory stated that the error in the prenatal diagnosis had resulted from a mix-up of the analysis results for the applicants’ family and those of another family, caused by the inversion of two flasks. As the erroneous diagnosis had prevented them from opting to terminate the pregnancy voluntarily if the child had been diagnosed as disabled in utero, the applicants lodged a complaint seeking compensation for the non-pecuniary and pecuniary damage sustained as a result of C.’s disability. The court expert concluded that there had been no fault in the prenatal diagnosis carried out at the laboratory, but that there had been “negligence in the service’s organisation and operations, leading to the inversion of the results of two families which had been tested at the same time”. In an order of December 2001 the urgent applications judge at the Paris Administrative Court ordered the public hospital service to pay an interim amount in respect of the damage cited. In a judgment of 2002 the Paris Administrative Court awarded interim compensation only in respect of non-pecuniary damage. Applying new legal provisions (Law of 4 March 2002) which were applicable to pending disputes, it ruled that the award should be limited solely to compensation in respect of the damage resulting from the negligence committed in inversing the flasks, and should not include the harm arising from the disability itself, since that had not been a direct consequence of the negligence. In February 2003 the Conseil d’Etat upheld this approach and fixed the interim award, payable on account of the damage sustained by the applicants as a result of the analysis laboratory’s aggravated negligence, at 50,000 euros (EUR). As to the merits, the Paris Administrative Court awarded the applicants, in application of the new law, compensation for non-pecuniary damage alone (the erroneous diagnosis having deprived them of the option of terminating the pregnancy), and stated that, in accordance with the legislation, the amounts claimed for alterations to their home and for the purchase of equipment and other costs arising from the child’s disability could not be taken into account in those proceedings. The applicants complained that the Law of 4 March 2002 made a distinction between, on the one hand, the parents of children who were born disabled on account of medical or third-party negligence, who could obtain compensation for all of the damage by bringing an action for damages, and, on the other, the parents of disabled children whose disability had not been detected prior to birth due to erroneous diagnosis, who, in bringing the same judicial action, could obtain compensation only for their personal damage, since the damage arising from the child’s disability was covered by a procedure for national solidarity.
Admissible under Articles 6 § 1 (equality of arms), 8 and 13 and Article 1 of Protocol No. 1, alone and in conjunction with Article 14. The Court dismissed the respondent Government’s objections of non-exhaustion of domestic remedies and lack of “victim” status.
[N.B. A similar application was declared admissible on 6 July 2004: Draon v. France, no. 1513/03. The Chamber suggested that it relinquish jurisdiction for these two applications in favour of the Grand Chamber.]
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This summary by the Registry does not bind the Court.
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