Medical Liability in Cases of Diagnostic Error: Rights and Remedies

In France, the relationship between a patient and a healthcare professional is built on trust. However, when a diagnostic error occurs, the consequences can be severe: delayed treatment, deterioration of health, or even death. In such situations, it is legitimate to ask what your rights are and how to seek redress. French law governs medical liability, but the conditions for establishing it in cases of diagnostic error remain poorly understood. This article explains the applicable rules, the steps to follow, and key considerations for asserting your rights.

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## What constitutes a diagnostic error under medical law?

A diagnostic error occurs when a healthcare professional fails to correctly identify a condition or misjudges its severity. This error may result from negligence, a breach of best practices, or misinterpretation of test results.

### Criteria for establishing a diagnostic error

For a diagnostic error to engage the liability of a healthcare professional, three conditions must be met, in accordance with **Article L. 1142-1 of the Public Health Code** [S8]:

1. **Fault**: The professional must have breached the standard of care or best medical practices.

2. **Harm**: The error must have caused damage to the patient, such as a deterioration of their condition or a loss of chance of recovery.

3. **Causal link**: There must be a direct connection between the fault and the harm suffered.

### Diagnostic error vs. therapeutic risk

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## How to prove a diagnostic error?

Proving a diagnostic error requires robust medical and legal evidence. Here are the key steps to building a case.

### 1. Gathering medical evidence

The first step is to collect all documents related to the diagnosis and treatment:
- Hospital discharge summaries;
- Test results (X-rays, laboratory analyses, etc.);
- Prescriptions and medical orders;
- Correspondence between healthcare professionals;
- The patient’s medical records (accessible upon request).

These documents help reconstruct the care pathway and identify any anomalies or omissions.

### 2. Obtaining a medical expert opinion

### 3. Establishing the causal link

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## What remedies are available in cases of diagnostic error?

### 1. The amicable procedure before a regional commission

### 2. Legal action before the judicial court

### 3. Recourse to the ONIAM

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## What types of harm may be compensated?

### 1. Physical harm

### 2. Economic harm

### 3. Non-pecuniary harm

### 4. Loss of chance

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## Frequently Asked Questions

1. **What should I do if the regional commission rejects my claim?**
   - Accept the decision and waive any claim for compensation.
   - Initiate legal proceedings to challenge the decision, with the assistance of a specialist solicitor.