Therapeutic Abnormal Damage: National Solidarity

In application of the article L. 1142-1, II, of the public health code, and the jurisprudence of the Council of State (Conseil d’Etat) and the Court of Cassation, the national solidarity, by means of the ONIAM, takes care of the compensation of the medical accidents having entailed an IPP of at least 25%, arisen without fault of the practitioner, provided that this accident is characterized by:- Consequences strikingly graver than those to whom the patient was exposed in a likely enough way in the absence of treatment- Or consequences which are not strikingly graver, but which occurred in conditions where the emergence of the damage presented a low probability.So, the consequences of the accident cannot be considered as abnormal when the gravity of the state of the patient led to practice an act entailing high risks.The therapeutic failure is excluded from the compensation by the national solidarity.The expert doctor, whose appreciation is essential for the judge, will have to look for:A) Which would have been in a likely enough, short and medium-term way, the state of the patient in case of therapeutic abstention?B) If the medical act entailed consequences "strikingly graver" that those to whom the patient was displayed in a likely enough way in the absence of processing;C) In the denial:- If the incurred risk was weak with regard to the conditions where the act was carried out, with regard to the health of the patient and the circumstances (emergency absence, not committed vital risk, bearable pain);- Or if the risk was brought up, but the act justified because of the gravity of the state of the patient (fatal risk, urgency).