Surgical responsibility and compensation of victims of medical accidents by applying the law of March 4th 2002

The law of the 4th March 2002 stresses the fact, except in caseswhere the responsibility of the surgeon or the hospital is directlyengaged, that a medical accident or an iatrogenous disability or anosocomial infection give way to compensation of the encountereddamage by the patient in the name of national solidarity, whetherthey are directly linked to prevention, diagnosis or care, as long asthey resulted in abnormal consequences on the patient’s health, itsforeseeable evolution and its character of severity.It is necessary to first define the aforementioned medical accident.Taking the law of the 4th of March 2002 as a reference point andafter careful reading of all its articles, we can only point out that aclear definition of the medical accident is never given. Is the absenceof a definition an omission or a voluntary action?A new right was created with this law: the right to compensation inthe name of national solidarity of non-faulty medical accidents andas such from surgical and postoperative complications. These complicationsare well known by all surgeons, because they form adistinct part in every question in their final medical diploma: complicationsof appendicectomy, suture disunion, vascular or urinarycomplications of lithiasic surgery or complications of prostate cancersurgery such as incontinence or erectile dysfunction…We have to agree that this absence of a clear reference has allowedthe victim’s counsellors and the judges to allow as much compensationas possible, both on the level of the insurance companies and inthe name of national solidarity. Hence, postoperative complicationshave vanished because more or less everything is regarded by thejudge and the lawyer as an accident or medical hazard. It belongs tothe experts and only them to expose in their final renderings what isto be considered as a medical accident: unforeseeable, independentfrom the treated disease and without any medical fault. These aretherefore called medical therapeutic hazards. Medical complications,themselves in essence hazardous, should be covered by aprivate voluntary insurance subscribed by the patient on the eve ofhis surgical procedure. This is already the case in airports for anxiouspassengers or in the case of foreseeable complications.Your academy, as such, should elaborate a clear definition of themedical accident, giving a guide to the right for compensation, inorder to eliminate this ambiguity which nowadays can only be apprehendedby the judges, the lawyers and the experts themselves.