“We blame injustice, not by the aversion we have for it, but for the prejudice we receive from it.”
MAXIMES BY FRANÇOIS DE LA ROCHEFOUCAULD, 1665
Uncompensated damage is akin to injustice, and must be made good.
Classically, there are three main types of damage: bodily injury, material damage and non-material damage.
Personal injury law is a multi-dimensional body of law that governs the compensation available in the event of an accident of any kind.
Personal injury law has ramifications not only in insurance law, criminal law, social security law, health law and tort law, but also in social and administrative law.
What makes it special is that the medical debate is at the heart of all the questions.
Expert” and “advisory” physicians therefore play a fundamental role.
Personal injury law: the role of the medical expert and third-party payers
A key document: the medical report of bodily injury
As soon as possible after you have suffered an injury, consult a doctor so that he or she can establish the bodily injury and record it in a medical certificate (in the case of medical error, accident at work, occupational disease, assault, road accident, sports accident or accident on the way home from work).
If you are suffering from psychological damage, such as shock, anxiety, insomnia or post-traumatic stress disorder (PTSD), let your doctor know so that he or she can include it in the file and refer you to a suitable care professional.
Finally, if necessary, he will issue you with a sick leave for your convalescence.
The importance of the consolidation certificate
Once your state of health has stabilized, a “certificate of consolidation” should be drawn up by the doctor treating you, so that the case can be closed and the damage suffered definitively settled.
If you wish to obtain compensation for the bodily injury you have suffered, you are strongly advised to consult a “medical advisor” when putting together your file.
He will examine and analyze the extent of the damage, before issuing his report. This report is crucial in determining the amount of your compensation.
You are strongly advised to ask for the assistance of a lawyer and a medical consultant to better defend your interests, and thus optimize your chances of receiving appropriate compensation for the harm you have suffered.
Who pays for compensation?
These may be insurers (yours or the other party’s) or the State, through the various guarantee funds in place.
Note that the procedure is lengthy, and that the opposing party will most certainly try to minimize the compensation, especially if the financial stakes are high.
What damages are covered by personal injury law?
Personal injury law recognizes a wide variety of personal injuries.
- Property damage ;
of which :
=> Temporary financial losses (health expenses, loss of professional earnings during convalescence, and other expenses incurred by the victim before resuming his physical capacities prior to the injury);
=> permanent economic prejudice (current and future health expenses; loss of future professional earnings; prejudice due to professional repercussions; adapted housing expenses; adapted vehicle expenses; third-party assistance expenses; educational, university or training prejudice);
- Extrapatrimonial damage ;
=>Temporary or permanent functional impairment: (permanent pain; loss of quality of life; personal, family and social problems);
=> the suffering endured
=> aesthetic damage
=> sexual harm
=> loss of amenity
=> prejudice of establishment (the loss of the possibility of carrying out a “normal” family life project)
Legal resources and texts applicable to personal injury law
Personal injury law is governed by various legal sources, such as the Civil Code, the Social Security Code, the Public Health Code and other specific texts, discussed below.
As far as civil liability is concerned, Article 1240 of the French Civil Code establishes the principle of civil liability in tort (responsabilité civile délictuelle), under which anyone who causes damage to another person is liable.
Article 1241 of the same code specifies that this liability may result from fault, negligence or imprudence.
The French Social Security Code lays down specific provisions for victim compensation. In particular, Article L454-1 of this Code establishes the principle of full compensation for the harm suffered by victims of accidents at work and occupational diseases.
With regard to road accidents, the Highway Code sets out provisions for driver liability and victim compensation. For example, Article L211-1 of the Highway Code establishes the principle of the obligation to compensate for damage caused by a traffic accident.
We should also mention Law 85-677 of July 5, 1985, known as the “Badinter Law”, which specifically governs compensation for victims of traffic accidents. This law provides for the creation of the Fonds de garantie des assurances obligatoires de dommages (FGAO), which intervenes in the event of default or insolvency of the insurer responsible for the accident.
Recourse to the Fonds de garantie des assurances obligatoires de dommages (FGAO) is essential when the party responsible for the accident is insolvent or uninsured. The FGAO can compensate victims in such situations, guaranteeing their right to compensation.
How to obtain compensation following an assault?
Referral to the CIVI (Commission for Compensation of Crime Victims)
When a person has been the victim of an assault and the perpetrator has not been found or is unable to pay compensation, there is a solution for obtaining redress: the Commission d’indemnisation des victimes d’infractions (CIVI). The CIVI is responsible for ruling on claims for compensation submitted by victims or their heirs.
The CIVI is made up of two magistrates and a qualified person who deal with the specific problems of victims of crime. The case may be referred to this commission if the perpetrator has not been found or is not solvent. Under certain conditions, the CIVI can also make an advance on compensation using national solidarity funds.
The length of proceedings before the CIVI depends on the progress of the victim’s state of health. The procedure ends when the parties reach an agreement. At that point, the victim will be compensated on consolidation, i.e. when his or her state of health stabilizes. During this period, the president of the commission may decide to grant the victim provisions to enable him/her to meet his/her needs.
The compensation awarded by the CIVI varies according to the seriousness of the offence. For example, in the case of rape, sexual assault, human trafficking or sexual abuse of a minor under the age of 15, full compensation will be paid. Similarly, if the offence resulted in death, permanent disability or total work incapacity of at least one month, compensation will also be full.
N.B.: However, for personal injury resulting in total work incapacity of less than one month, the compensation ceiling is set at €4,601.
All victims of crime can be compensated for the consequences of their accident, regardless of their resources, if they meet certain conditions. For example, if they have been the victim of an assault resulting in permanent disability or total work incapacity of at least one month, if they have been the victim of rape, sexual assault or indecent assault, or if one of their relatives has died as a result of one of these offenses. It is important to emphasize that the offence must be of a material nature and have resulted in serious personal injury.
In order to lodge a claim with the CIVI, you must do so within 3 years of the offence. If legal proceedings have already been initiated, the deadline is one year after the last court decision.
Surround yourself with professionals to maximize your chances of obtaining compensation.
How to obtain compensation in the event of a non-culpable medical accident, nosocomial infection or iatrogenic disease?
Conciliation and Compensation Commissions (CCI)
The Commissions de Conciliation et d’Indemnisation (CCI) are administrative authorities created by the Kouchner law of March 4, 2002. Their main role is to facilitate medical expertise and encourage amicable settlement of compensation for victims of medical accidents, whether at fault or not, and having serious consequences.
Although referral to the CCI can be made without the assistance of a lawyer, it is advisable to consult one. The referral procedure is free of charge, and requires you to provide information on the disputed treatment and the harmful consequences suffered. The amicable procedure involves several stages.
The first step is to obtain a complete copy of the medical file. Since the Kouchner law, patients have had the right to access their medical records and obtain a copy on simple request. The request must be sent in writing, by registered mail with acknowledgement of receipt, to the doctor, health professionals or healthcare establishment. It is important to specify the date of hospitalization and, in the event of hospitalization in several establishments, to submit one request per establishment.
If you are unable to obtain a copy of your medical file despite repeated reminders, you can refer the matter to the Commission d’accès aux documents administratifs (CADA) in the case of a public health establishment, or threaten to refer the matter to the juge des référés in the case of a private practitioner or establishment. The cost of reproducing the medical file is borne by the applicant.
Once in possession of the medical file, it is advisable to have it examined by an independent medical consultant and to consult a lawyer to determine the procedure to be followed. A claim form should then be completed, setting out the necessary information such as the identity of the claimant, the health professionals and establishments involved, and the grievances and injuries suffered.
The application, together with the form and supporting documents, must be sent to the CCI of the claimant’s place of residence by registered letter with acknowledgement of receipt. The admissibility of the claim will be verified by the commission, which will examine whether the criteria have been met, such as the duration of the temporary functional deficit, the work stoppage or the physical and psychological impairment.
If the case is deemed admissible, the ICC may order a medical assessment. Medical expertise is an extremely important part of the compensation process. Its purpose is to assess the existence of medical malpractice, the existence of a medical accident not at fault, the criteria for the CCI’s jurisdiction and the damages suffered. The Commission has six months in which to deliver its opinion, after consulting the experts, and it is recommended that you seek the assistance of a medical consultant during the expert appraisal.
Finally, the victim is called before the ICC, where he or she will have the opportunity to present his or her case and provide testimony, medical documents and any other relevant evidence. During the hearing, the victim may also be questioned by commission members and medical experts to clarify certain points.
Once all the information has been gathered, the CCI carries out an in-depth analysis of the case, taking into account the information provided by the victim, the medical experts and any other parties involved. The commission examines whether the criteria for medical liability have been met, i.e. whether medical malpractice or a non-culpable medical accident has been proven.
After examining all the evidence, the CCI issues its opinion within six months of receipt of the complete file. This opinion may be favorable to the victim, concluding that medical malpractice has been recognized and that compensation is possible, or it may be unfavorable, rejecting the claim for compensation.
It is important to note that the CCI’s decision is not final, and may be appealed before the competent courts. If the victim is not satisfied with the Commission’s opinion, he or she can initiate legal proceedings to obtain compensation.
It’s essential to be well prepared and to surround yourself with competent professionals to maximize your chances of success in this complex process.
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Maître Maha Mohamed can assist you and defend your rights in the event of an accident, whether at fault or not, of any kind.
With a master’s degree in health law, she began her professional career in a firm specializing in personal injury law, dedicated to defending victims, and continues to defend their rights every day against insurance companies and guarantee funds.
If you wish to make a claim, please contact the firm’s legal secretariat on 06.51.10.20.82 or 01.73.75.75.26.
French version of this article here.
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