[MEDICAL CRIMINAL LIABILITY IN THE EVENT OF DELEGATION]

[Manslaughter - Criminal liability - Surgeon - Physician - Intern - Delegation]

🚨 Holding a doctor criminally liable for negligence requires a detailed examination of the specific facts of the case. In the event of delegation: the responsibility of the competent delegator (the doctor) remains engaged due to the decision to delegate involving the notion of ‘supervision’; the responsibility of the delegate is engaged in the performance of the act. Nevertheless, although a doctor may delegate the performance of an act of care or a well-defined and limited task, he or she cannot avoid his or her responsibilities by delegating to a medical intern.

(Cour de Cassation, Chambre criminelle, du 3 mai 2006, 05-82.591 ; Haute Autorité de la Santé, Les nouvelles formes de coopération entre professionnels de santé : les aspects juridiques du 2 août 2007)

⚖️ In the above-mentioned case, a patient who had undergone a thyroidectomy performed by a medical intern and her department head suffered haemorrhagic complications immediately after the operation, which were aggravated by several factors, resulting in her death.

It should be remembered that causing ‘by clumsiness, carelessness, inattention, negligence or failure to comply with an obligation of safety or prudence imposed by law or regulations, the death of another person constitutes manslaughter’ (Article 221-6 of the French Penal Code).

The determination of a healthcare professional's criminal liability for misconduct in cases of deliberate endangerment of others, recklessness, negligence or failure to comply with an obligation of prudence or safety imposed by law or regulations is made in a measured manner. In particular, it takes into account whether or not normal diligence was exercised, considering the nature of the practitioner's duties, functions and skills, as well as the power and means at his disposal, and possibly circumstances of force majeure (Article 121-3 of the French Penal Code).

In this regard, the report of the expert appointed by the examining magistrate in the case of 3 May 2006 raised several points:

- the practitioner ‘was perfectly aware of the need to intervene quickly’.

- several times alerted by the doctor (...) who had expressed his concern and normally informed him of the risks of postoperative haemorrhagic complications involving repeat surgery’.

- the decision to evacuate this surgical haematoma was delayed (...), aggravated by various dysfunctions in the organisation of the on-call circuit (...) during the depositions, disagreements appeared between the decisions of the ENT surgical team and the wishes of the on-call anaesthetist on site’.

- the two surgeons committed a criminal offence for not intervening at the first warning, knowing full well the risk they were placing the patient at’.

the patient ‘gradually developed a cervical haematoma in the recovery room under discontinuous surveillance by the emergency department’.

- the risk of a serious complication in this case was ‘known by all surgeons’ in the specialty concerned

- the practitioner ‘could not reasonably have been unaware that his abstention for several hours was likely to give rise to a serious risk’; and

- in the current state of scientific knowledge, further surgery was indisputably required"; and

- the practitioner was ‘much more experienced’.

- 'disregard of scientific evidence’.

- the practitioner ‘had all the information he needed to assess the patient's state of health, so that his decision not to proceed with repeat surgery was the result of a non-culpable error of assessment’.

The decision to convict a medical intern for ‘failing to perform a new operation when first alerted’ was challenged by the Court of Cassation under Article 593 of the Code of Criminal Procedure. The high court considered that the delay in the decision to resume surgery immediately was attributable to the head of department and not to the intern, who was ‘placed under the authority and responsibility of a head of department’ and was performing his duties ‘by delegation’. This perspective refers to paragraph 1 of Article R6153-3 of the Public Health Code, resulting from Article 3 of Decree no. 99-930 of 10 November 1999 setting the status of medical interns, according to which: ‘The medical intern performs preventive, diagnostic and care functions, by delegation and under the responsibility of the practitioner to whom he reports.’

⚠ This decision confirms the principle that the doctor ‘is obliged to personally supervise the acts performed under his immediate direction during a surgical operation, by the staff placed under his orders, and commits a fault engaging his criminal liability if he does not exercise this supervision with all the necessary attention’ (Cass.crim, 9 May 1956, n°355).

In this respect, Article L4161-1 of the Public Health Code and Articles 3 and 4 of the Order of 6 January 1962 emphasise the importance of medical acts being performed ‘under the responsibility and direct supervision of a doctor, who may control and intervene at any time’ and ‘solely on the doctor's prescription’, with strictly limited exceptions.

These obligations result in part from the fact that the profession of a doctor ‘in the strict sense of the term, [presupposes] a certain autonomy of practice and regulation - to which French laws have given a monopoly in the field of health for nearly two centuries’.

(Ordre National des Médecins, Conseil National de l’Ordre, Code de déontologie médicale et ses commentaires du 28 juin 2022).