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THE FACTS
The applicant, Mrs Marie-Thérèse Trocellier, is a French national who was born in 1943 and lives in Marvejols. She was represented before the Court by Mr P. Sirgue, a lawyer practicing in Bordeaux. The French Government (“the Government”) were represented by their Agent, Mrs E. Belliard, Director of Legal Affairs, Ministry of Foreign Affairs.
The facts of the case, as presented by the parties, may be summarised as follows.
On 11 July 1988, the applicant underwent gynaecological surgery (a hysterectomy) under general anaesthetic in the Montpellier Public Hospital. When she came round, her left leg was paralysed. Whereas she had been able-bodied prior to the operation, subsequently she could only move about in a wheelchair or on crutches.
1. The medical reports
On 2 May 1990 Dr Arnaud, an expert in forensic medicine at the court of appeal, examined the applicant at her request. His report stated, inter alia:
“... immediately after [the] operation paralysis of the entire ... lower left limb occurred. To date, in spite of the various hypotheses put forward and ... the numerous in-depth examinations which have been carried out ..., it has not been possible to ascribe a precise aetiology to Mrs Trocellier’s paralysis which would cause her sensory-motor disorder. The only undisputed fact is that this flaccid paralysis appeared in the immediate aftermath of the most recent operation on 11 July 1988 (on the following day). Mrs Trocellier would appear to have a medico-psychological ‘field’ which could have had an adverse impact on the durability of such disorders and the establishment of her current state. Nevertheless, as all the specialists agree ..., [she] has sustained a serious sensory-motor neurological injury, affecting the entire lower left limb, which arose following the operation of 11 July 1988. Is this the result of direct traumatic lesions to the nerve trunks ... or incorrect positioning on the operating table? It is very difficult to choose between the various hypotheses put forward. In any event, [the applicant] has a serious disability which, in spite of every attempt at physiotherapy, seems to be permanent and without any significant possibility of improvement. Even if, as has been suggested, Mrs Trocellier’s personal psycho-pathological ‘field’ could have played a role in this situation, it is not the cause of it, which must be ascribed to the operation of 11 July 1988. It thus appears reasonable to request compensation for these post-operational complications from Montpellier Hospital. On the other hand, no ‘serious’ fault giving rise to personal liability can be ascribed to the various specialists who treated the patient.”
On 13 April 1991 Dr Bondeelle, who held a degree in judicial compensation for personal injury and acted as an expert for the Carpentras court, examined the applicant at her request. His report, dated 29 April 1991, found that the applicant’s paralysis had begun immediately after the operation of 11 July 1988 and concluded:
“... the only possibilities are: (a) incorrect positioning on the operating table; or (b), ‘sleep syndrome’, which is very similar ... Whatever the underlying psychological reality – and in this regard we ... found Mrs Trocellier not merely uncomplaining but also surprisingly serene – the causal link is clear to all.”
On an urgent application by the applicant, the President of the Montpellier Administrative Court appointed a medical expert (Dr Giraud), who examined the applicant and studied her medical file. His report, dated 10 December 1992, concluded that there had been no medical or organisational error on the part of the hospital department. In particular, the report stated:
“... Mrs Trocellier underwent a hysterectomy on 11 July 1988. Since the operation there have been indications of a left crural injury, namely minor problems of sensitivity and motility in the area of the lower left limb which is innervated by the crural nerve. This is a relatively frequent post-operative complication following a hysterectomy. The reason [for it] has not yet been identified with any precision; it is known, however, that these problems generally disappear after about three months. Four years later, however, Mrs Trocellier is still suffering from monoplegia of the lower left limb ... We are ... led to conclude that what we have here is pithiatic monoplegia of the lower left limb, linked to conversion syndrome. No psychosomatic or anatomical condition corresponds to the dysfunction complained of. Consequently, we can state that the observed monoplegia, of a conversion-syndrome type, has no causal link to the operation. However, while the operation is not responsible for the establishment of this pithiatic monoplegia, there is no doubt that [it] occurred immediately after the operation and especially after a crural injury linked to that operation. This pithiatic monoplegia could only have appeared in a woman who had a predisposition to psychological problems of this nature, but the Court of Cassation has ruled that under no circumstances may one refer to a predisposition that had not [previously] come to light, and it would not appear that Mrs Trocellier had shown signs of psychological problems of this nature in the years preceding the operation, not having seen a doctor for that reason and not having been treated at home or in hospital for such problems. ... No medical error occurred and the operation proceeded normally but, in a predisposed environment, [it] triggered a conversion syndrome on a bias point which, in Mrs Trocellier’s case, took the form of pithiatic monoplegia of the lower left limb. In consequence, even if there was no error or fault on the part of the care team or hospital, given that the problems were indisputably triggered following the operation, it might be possible to envisage compensation for the consequent dysfunctions from a legal perspective, without a medical error having occurred during the operation; this will be for the court to decide. We emphasise that, in this approach, imputability must be considered absolute from the medico-legal perspective, since it has been impossible to produce evidence of [Mrs Trocellier’s] previous condition, even if, medically speaking, her previous condition is perfectly clear. ...”
2. The compensation proceedings before the administrative courts
The applicant applied to the Montpellier Administrative Court, seeking to have the Montpellier Hospital declared liable for the detrimental consequences of the surgery of 11 July 1988 and to obtain an order that it was to pay compensation for her personal injury. Her application was dismissed on the following grounds by a judgment of 8 October 1997.
“... The inquiry into the facts, and particularly the expert report ordered in interlocutory proceedings, revealed that the operation ... proceeded normally, with no medical error or fault by the theatre team which could be alleged to have caused the emergence of the problems complained of by the claimant, and that the monoplegia observed in [Mrs Trocellier] is not imputable to the conditions in which the operation was carried out; the circumstance that this operation could, as a psychological factor, have triggered a conversion syndrome on a bias point which, in the patient’s case, took the form of pithiatic monoplegia of the lower left limb is not in itself sufficient to establish a causal link between the operation and the paralysis complained of by the claimant ...”
The applicant appealed against that judgment to the Marseilles Administrative Court of Appeal. She complained, in particular, that the hospital had failed in its obligation to inform her fully of the risks connected with the operation that she was to undergo, with the result that she had not been able to give informed consent and had failed to carry out prior research into whether she was predisposed to somatisation. The Administrative Court of Appeal dismissed the appeal in a judgment of 1 April 1999, giving the following reasons.
“... The expert report reveals that, although the problems suffered by Mrs Trocellier, which appeared in the hours following the operation before assuming a permanent nature, arose on the occasion of that operation, they are not a direct consequence of it but are only the expression of psychosomatic tendencies which had already been exhibited at a previous stage by Mrs Trocellier; there is therefore no direct causal link between the symptoms shown and the operation carried out.
Mrs Trocellier also seeks to establish the hospital’s liability, alleging that it had committed a fault in failing to carry out in-depth tests prior to the operation in order to take account of these tendencies and cancel the operation in question; on the one hand, it is not alleged that the hospital was aware of this psychological frailty in Mrs Trocellier and, on the other, in any event, the investigation reveals that the persistence of the appellant’s gynaecological problems over several months, in spite of various measures, amounted to an indisputable indication for the operation, having regard to the chronic and disabling nature of those problems, which were indeed completely removed by the operation. ...”
The applicant appealed to the Conseil d’Etat. In her full pleadings, complaining in particular that the appeal court’s judgment had not replied to her argument alleging a lack of investigation and information, she invited the Conseil d’Etat to hold that that judgment should be quashed and to determine the merits of the case.
On 6 June 2001 the Conseil d’Etat dismissed the appeal in a judgment which was worded as follows:
“... The evidence submitted to the trial judges reveals that, when finding that ‘there is ... no direct causal link between the symptoms shown and the operation carried out’, the court did not distort either the facts of the case or the conclusions of the expert report drawn up at the request of the Montpellier Administrative Court, which noted that there is no direct link of cause and effect between the monoplegia suffered by Mrs Trocellier and the operation.
In ruling that ‘there is ... no direct causal link between the symptoms shown and the operation carried out’ and by thus finding that the precondition for any liability on the part of the hospital, either on the ground of strict liability or of liability for negligence, was not met, the court gave sufficient reasons for its judgment ...”
In her observations in response to those of the Government, the applicant added that, at her lawyer’s request, an expert named Michelet had confirmed the following in a report of 30 April 2005 (not produced).
“In this case, there is an obvious cause for the patient’s condition, namely the operation of 1[1] July 1988, complicated by a lesion of the left crural nerve.
The relationship between this cause and its consequences is substantiated by several factors: an initial injury to the crural nerve, confirmed by electromyogram; a neurological syndrome of functional lameness of the lower left limb, in a person who was thus predisposed; and an unconscious conversion in relation to the experience of the operation and the subsequent complication, taking the form of an injury to the crural nerve, which developed into a pithiatic symptom.
These complications are disproportionate to what might have been expected from the initial hysterectomy.
Conclusion: the problems evidenced on this date are to be directly and exclusively ascribed to the consequences of the operation of 1[1] July 1988.”
COMPLAINT
The applicant complained that, having been able-bodied prior to her operation, she had woken up partially paralysed, and that she had not been informed before the operation that there was a risk of paralysis. She relied on no provision of the Convention in her application, but alleged a violation of her right to life and her right to health, together with a breach of the inviolability of her person.
THE LAW
1. The applicant complained that, having been able-bodied prior to her operation, she had woken up partially paralysed. She further complained that she had not been informed before the operation that there was a risk of paralysis. She relied on no provision of the Convention in her application, but alleged a violation of her right to life and her right to health, together with a breach of the inviolability of her person.
The Court points out that individuals’ physical and psychological integrity (see, for example, mutatis mutandis, the following judgments: Raninen v. Finland, 16 December 1997, § 63, Reports of Judgments and Decisions 1997-VIII; Botta v. Italy, 24 February 1998, § 32, Reports 1998-I; Y.F. v. Turkey, no. 24209/94, § 33, ECHR 2003-IX; and M.C. v. Bulgaria, no. 39272/98, ECHR 2003-XII), their involvement in the choice of medical care provided to them and their consent in that respect (see, in particular, mutatis mutandis, Herczegfalvy v. Austria, 24 September 1992, §§ 82-83 and 86, Series A no. 244; Pretty v. the United Kingdom, no. 2346/02, § 63, ECHR 2002-III; and Y.F. v. Turkey, cited above, same references), and access of information enabling them to assess the health risks to which they are exposed (see, in particular, mutatis mutandis, Guerra and Others v. Italy, 19 February 1998, § 60, Reports 1998-I, and Roche v. the United Kingdom [GC], no. 32555/96, § 155, ECHR 2005‑X) fall within the scope of Article 8 of the Convention. It concludes that this provision applies to the circumstances complained of by the applicant.
It is therefore appropriate to examine the present case under Article 8 of the Convention, according to which:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
2. As their primary submission the Government maintained that the applicant had not exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention. In this connection, they alleged that, although she had applied, as required, to the administrative courts seeking compensation for negligence, she had not submitted to them any complaint concerning a breach of the inviolability of her person or a right under the Convention; she had merely argued that there had been a medical error and had sought compensation for the latter’s detrimental consequences.
As a subsidiary argument, the Government submitted that the application was manifestly ill-founded. Noting the Court’s case-law to the effect that an individual’s physical and moral integrity was part of his or her private life within the meaning of Article 8 of the Convention, they stated that French positive law enshrined an obligation on doctors to provide information. Except in emergencies, they had to obtain the patient’s consent by informing him or her of the known risks of death or disability arising from a medical act, even if these risks were exceptional (in this connection, the Government referred to the judgments of the Conseil d’Etat in Assistance Publique-Hôpitaux de Paris v. M.G. et consorts T. and Caisse régionale d’assurance maladie d’Île de France, of 5 January 2000 and 19 May 2004 respectively), it being understood that this obligation existed only in respect of risks that were known to and acknowledged by the scientific community (in this connection, the Government referred to the judgment of the Conseil d’Etat in Assistance publique de Marseille, of 27 February 2002) and associated with the recommended surgery. Referring particularly to the risk of somatisation, the Government alleged that the medical world had explored the latter’s scope to a very limited extent and that the information available was still hypothetical; it would thus be barely imaginable to include it in the obligation on doctors to provide information.
In the instant case, according to the Government, the risk of paralysis by somatisation had been unknown to the doctors who had treated the applicant, since she had shown no indication of a predisposition. In this connection, they stated that the medical examination carried out in the context of the domestic proceedings showed that, although the applicant had a predisposition to the psychological problems underlying the paralysis from which she suffered, this predisposition had not been apparent before the operation; it had thus been “difficult to detect” the possibility of paralysis “prior to the operation itself”. They added that the paralysis was not directly linked to the hysterectomy or to an act carried out in the course of the operation; it was a collateral or indirect result of it, and was not therefore one of the known risks of the medical act carried out. Finally, in the Government’s opinion, if the information on possible somatisation had been given to the applicant, it was not certain that she would have refrained from undergoing the hysterectomy, given the risks involved in not proceeding with it, or that the risk of somatisation would have been less. No error could thus be ascribed to the doctors concerned and the latter had not failed in their duty to inform.
3. The applicant did not reply to the objection alleging a failure to exhaust domestic remedies.
For the remainder, she emphasised the following: her paralysis had been directly caused by the operation, and this link had been recognised by the five experts who had examined her case; the existence of psychosomatic tendencies did not follow from any evidence in the arguments; if such a predisposition had existed, she ought to have been informed of it in such a way as to be able to make an informed decision with regard to the operation; even in the absence of predisposition, given that paralysis was a known if exceptional risk, it would have been appropriate to inform her of it, in order to enable her to decide in an informed manner whether she should go ahead with the operation; and the consequences of the operation were disproportionate to her previous condition.
In her opinion, hers was a typical case of therapeutic risk, compensated in France by both the civil and administrative courts since the Conseil d’Etat’s Bianchi judgment of 9 April 1993, which concerned compensation for an accident sustained by a patient who, following an operation under general anaesthetic, had woken up as a tetraplegic. That judgment stated that, in the absence of error, the hospital’s liability could be incurred under the concept of medical risk provided that the following four conditions were met: the disputed medical act was necessary for diagnosis or treatment; it presented a risk which was known but extremely rare; the patient could prove that he or she was not particularly exposed to that risk; and the performance of the medical act in question was the direct cause of an extremely serious prejudice which was unconnected with the patient’s initial condition or the latter’s likely evolution. The administrative courts subsequently applied those criteria flexibly, allowing a request for compensation in a case where death had occurred following a non-therapeutic operation under general anaesthetic (Conseil d’Etat, Hôpital Joseph Imbert d’Arles, 3 November 1997) and a Caesarean under general anaesthetic (Nancy Administrative Court of Appeal, M. Kaluszka, 29 January 1998), or when it found, with regard to a new, recently introduced treatment whose consequences were not fully known, that the rare and exceptionally serious complications experienced by the victim incurred the liability of the public hospital service, even in the absence of negligence (Bordeaux Administrative Court of Appeal, Centre hospitalier général de Montauban, 14 December 1998). This case-law was subsequently enshrined by Law no. 2002-303 of 4 March 2002 (Public Health Code; Article L. 1142-1 II).
According to the applicant, the four criteria of the Bianchi judgment had been met in her case. Firstly, there was no question about the necessity of the hysterectomy which had been carried out. Secondly, although extremely rare, the risk of post-hysterectomy paralysis was known; indeed, all the experts had referred to it. Thirdly, although the French courts had found psychosomatic tendencies, no previous condition or prior treatment for somatisation, psychological problems or paralysis had been demonstrated before the domestic courts. Fourthly, the paralysis arising from the operation undergone by her was extremely serious, given her previous condition. She concluded that, under the law as it stood, the hospital ought to have been ordered to pay her compensation and that the principle of the rule of law had not been respected in her case. Alleging also that there had been an injury to her health, she invited the Court to find that there had been a violation of Article 8.
4. The Court points out that, under Article 35 § 1 of the Convention, it may deal with a matter only after all domestic remedies have been exhausted; all applicants must provide the domestic courts with the opportunity which is in principle intended to be afforded to Contracting States by that provision, namely the opportunity of preventing or putting right the violations alleged against them. The complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V), it being understood that Article 35 must nonetheless be applied with some degree of flexibility and without excessive formalism (see, in particular, Selmouni, cited above, § 77).
In the instant case, the applicant applied to the administrative courts with a request that the Montpellier Hospital – a public entity – be declared liable for the detrimental consequences of the operation of 11 July 1988 and that it be ordered to pay compensation for the injury to her person. The Court also notes that, in the context of those proceedings, the applicant complained in particular that the hospital had failed in its obligation to inform her of the risks associated with the operation which she was to undergo – which meant that she had been unable to give informed consent – and had failed to verify prior to the operation whether she had a predisposition to somatisation.
Thus, while it is true that the applicant did not rely on Article 8 of the Convention before the French courts, the latter were nonetheless called upon to examine whether the hospital authorities were liable in respect of her injury and the alleged insufficiency of the pre-operative information provided to her, issues which, as indicated above, fall within the scope of Article 8. Accordingly, the Court concludes that respect for the rights guaranteed under Article 8 was at issue – if only implicitly – before the domestic courts; the legal arguments made by the applicant at that stage included a complaint linked to those rights, and she had raised before those courts, at least in substance, the complaint which she had later raised before the Court (see, mutatis mutandis, Fressoz and Roire v. France [GC], no. 29183/95, § 39, ECHR 1999-I). As the respondent State had therefore had the opportunity of providing redress for the violation alleged before the Court, the Government’s objection based on a failure to exhaust domestic remedies cannot be upheld.
As to the merits, the Court points out that in addition to the primarily negative undertakings contained in Article 8, as in other provisions of the Convention, there may be positive obligations inherent in an effective respect for the rights guaranteed (see, among many other authorities, Roche, cited above, § 157).
The Court has thus held, in connection with the right to life enshrined in Article 2, that the Contracting States are required to set up an effective independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined; it has held that, in the specific sphere of medical negligence, access to proceedings for “civil” liability are sufficient in principle (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, §§ 48-51, ECHR 2002-I). The Contracting States are also under an obligation to introduce regulations compelling both public and private hospitals to adopt appropriate measures for the protection of their patients’ lives (ibid.). These principles are undoubtedly also applicable in the same context to serious interference with the right to physical integrity falling within the scope of Article 8 of the Convention.
As to the first obligation, the Court notes that the applicant has had access to proceedings to establish whether the medical team which performed the operation was liable and enabling her, if appropriate, to obtain compensation for personal injury. It concludes that no issue arises in the instant case from this perspective. Furthermore, supposing that the applicant intends to maintain that a medical error, imputable to the public hospital service and having caused the physical injury, is capable of engaging directly the State’s responsibility under Article 8, the Court notes that, whatever the answer to that question, not only the medical expert appointed by the President of the Montpellier Administrative Court but also the domestic courts themselves concluded that the operation had proceeded normally and ruled out any medical error or negligence.
As to the second point, the Court observes, firstly, that the obligation on Contracting States to adopt appropriate regulations to ensure respect for patients’ physical integrity is based on the need to protect the latter, in so far as possible, from the serious consequences which medical acts may give rise to in this connection. It further points out, mutatis mutandis, that it has already highlighted not only the importance of patients’ consent, noting in particular in Pretty (cited above, § 63) that “the imposition of medical treatment, without the consent of a mentally competent adult patient, would interfere with a person’s physical integrity in a manner capable of engaging the rights protected under Article 8 § 1”, but also the importance, for individuals facing risks to their health, of having access to information enabling them to assess those risks (see, in particular, Guerra and Others, cited above, § 60). It considers it reasonable to infer from this (see also, mutatis mutandis, the other judgments mentioned in paragraph 1 above) that the Contracting States are bound, by virtue of this obligation, to adopt the necessary regulatory measures to ensure that doctors consider the foreseeable consequences of the planned medical procedure on their patients’ physical integrity and to inform patients of these beforehand in such a way that they are able to give informed consent. In particular, as a corollary to this, if a foreseeable risk of this nature materialises without the patient having been duly informed in advance by doctors, and if, as in the instant case, those doctors work in a public hospital, the State Party concerned may be directly liable under Article 8 for this lack of information.
In the instant case, however, the Government have submitted, without this being contradicted by the applicant, that French law as it stood at the material time already required doctors to provide information; except in emergencies, they are obliged to obtain the patient’s consent and to inform him or her of the known risks of death or disability arising from the planned procedure, even if those risks are extremely rare. Moreover, the applicant did not claim that she had not received any information prior to the operation.
Furthermore, whereas the experts who examined the applicant’s case agreed that her paralysis appeared in the immediate aftermath of the operation of 11 July 1988, Dr Giraud, the medical expert appointed by the President of the Administrative Court, stressed in his report of 10 December 1992 that, although “minor problems” of sensitivity and motility are “relatively frequent” consequences of the type of operation in question, those “generally” disappeared within three months.
It would thus appear that paralysis as intense and lasting as that experienced by the applicant is not, as such, a foreseeable consequence of the operation in question.
According to the expert, the problems experienced by the applicant are of a psychosomatic nature. The Court finds no reason not to lend credence to the Government’s argument that very little medical research has been conducted in the field of psychosomatic symptoms and that the data available are still based on hypothesis, making it difficult to require that they be included as a matter of principle in the information to be provided by doctors. In the specific case of the applicant, moreover, although the above-mentioned expert noted that she had a tendency towards such a reaction, he stressed that this tendency was not known prior to the operation (a fact also accepted by the Administrative Court of Appeal).
It follows that the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
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