[The concept of loss of chance: A major evolution in the definition of damage or how to prevent litigation for loss of chance?]. / Concept de perte de chance : une évolution majeure dans la définition du préjudice, ou comment éviter le litige pour perte de chance ?

The concept of medical error in responsibility litigation was based until the past last years on a necessary direct and definite causal link between fault and injury. In France, since the 1960s and increasingly during the last decade, the idea of loss of chance arose, considered as a new and genuine prejudice (practically, a fixable damage); it became the subject of several legal precedents from the Cour de cassation and the Conseil d'État. Thus, plaintiffs may currently demand a compensation for a loss of chance even though a doubt exists on the causal link between the fault and the observed damage. The most frequent litigation circumstances implying a loss of chance are lack of information, lack or delay in diagnosis, delay in action, and default in medical assessment. Based on practical cases, the author presents the most propitious situations where litigation for loss of chance may occur and discusses possible preventive measures.

[Closed claims in obstetrics: A study based on French Sham insurance data]. / Sinistralité en obstétrique dans les hôpitaux publics français: données Sham.

OBJECTIVE: The aim of this study was to analyze the medicolegal claims related to obstetrics in French hospitals. MATERIAL AND METHODS: We did retrospective study on insurance claims provided by Sham insurances and which has been settled by a court over a 3-year period (2004-2006). RESULTS: We analyzed 66 closed claims that occurred between 1983 and 2005 in French hospitals (54 general hospitals and 12 academic). The average time between the declaration of the claim and the court conviction was 6 years. The average amount of compensation per claim was 500,000 €. The damage occurred during vaginal delivery (n=44), planned (n=5) or unplanned (n=4) cesarean. The more often claims are fetal asphyxia (n=24) or shoulder dystocia (n=8). The consequences are very important: cerebral palsy (16), death of the newborn (12), death of the mother (2) or brachial plexus injuries (6). CONCLUSION: The causes identified by the expert are always multifactorial with generally a misdiagnosis (n=27), a decision making error (n=36), a care error by the midwife (n=21) and/or a delay in medical care (n=13). These data should help strengthen the quality approach in obstetrics.