Information Note on the Court’s case-law No. 90
October 2006
Trocellier v. France (dec.) - 75725/01
Decision 5.10.2006 [Section I]
Article 8
Article 8-1
Respect for private life
Unforeseeable harmful effects of surgery on account of psychosomatic tendencies not known prior to the operation: inadmissible
In 1988 the applicant underwent a hysterectomy under general anaesthetic in a public hospital. When she came round, her left leg was paralysed. Whereas she was able‑bodied before the operation, she can now move around only in a wheelchair or on crutches. The applicant brought proceedings before the administrative court, whose president appointed a medical expert. The latter produced a report in 1992 finding there had been no medical negligence or organisational error on the part of the hospital, but that the applicant had psychosomatic tendencies which had not been known before the operation and which had contributed to psychosomatically induced monoplegia following the operation.
The applicant lodged an application with the administrative court seeking to have the hospital in question held liable for the harmful effects of her hysterectomy and ordered to provide compensation for personal injury. The court rejected the application, finding that no causal link had been established between the operation and the paralysis complained of by the applicant. The applicant lodged an appeal with the administrative court of appeal, complaining in particular that the hospital had failed in its obligation to provide her with comprehensive information on the risks of the operation and had omitted to investigate beforehand whether she had psychosomatic tendencies. The administrative court of appeal dismissed her arguments on both points and upheld the judgment at first instance. The Conseil d’Etat dismissed the applicant’s appeal on points of law. It found that the administrative court of appeal, in ruling that there was no direct causal link between the applicant’s symptoms and her operation and that the conditions for finding the hospital liable, on the basis of either strict liability or liability for negligence, had therefore not been met, had not distorted the facts or the conclusions of the expert report and had given sufficient reasons for its judgment.
Inadmissible under Article 8 – While it was true that the applicant had not relied on Article 8 before the French courts, the latter had nonetheless been called upon to examine whether the hospital authorities were liable in respect of the interference with the applicant’s physical integrity and the alleged inadequacy of the information given to her before the operation. Both these issues fell within the scope of Article 8. Accordingly, respect for the rights guaranteed by Article 8 had been at issue – if only implicitly – before the domestic courts; the legal arguments advanced by the applicant at that stage had included a complaint linked to those rights and the applicant had raised, at least in substance, the complaint she later raised before the Court. As the respondent State had therefore had the opportunity of providing redress for the violation alleged before the Court, its objection based on the failure to exhaust domestic remedies could not be upheld.
The principles in the Court’s case-law concerning the right to life under Article 2 required Contracting Parties 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, could be determined, and to make regulations compelling both public and private hospitals to adopt appropriate measures for the protection of their patients’ lives. Those principles were undoubtedly equally applicable in the same context to serious interference with a person’s physical integrity falling within the scope of Article 8. In the instant case, on the first point, the applicant had had access to proceedings to establish whether the medical team which had performed the operation was liable and enabling her, if appropriate, to obtain compensation for personal injury. Both the medical expert appointed by the president of the administrative court and the domestic courts had found that the operation had proceeded normally, and had ruled out any fault or medical negligence. As to the second point, the Court had already stressed the importance of patient consent and the need for persons facing risks to their health to have access to information enabling them to assess those risks. It considered it reasonable to infer from this that Contracting States were obliged to introduce the necessary regulations requiring doctors to consider the foreseeable consequences of the planned procedure on their patients’ physical integrity and to inform patients accordingly beforehand. As a corollary to this, if a foreseeable risk of this nature materialised without the patient having been duly informed in advance by doctors, and if, as in the instant case, the doctors worked in a public hospital, the Contracting State concerned could be held directly responsible under Article 8 for the lack of information. In the instant case, French law as it stood at the material time already required doctors to provide patients with information; besides, the applicant had not claimed to have received no information prior to the operation. Furthermore, it appeared that paralysis as intense and lasting as that experienced by the applicant was not, as such, a foreseeable consequence of an operation of this kind. According to the expert, the applicant’s problem was of a psychosomatic nature. There was no reason not to lend credence to the Government’s argument that very little medical research had been conducted in the field of psychosomatic symptoms and that the data available were 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, while the expert had noted a tendency in the patient towards such a reaction, he had stressed that this had not been known before the operation (a fact also accepted by the administrative court of appeal): manifestly ill-founded.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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