information issued by the doctor his patients was not always the rule.
Indeed, the court has long viewed the patient as "an infant to whom nothing should be said for not worrying" .
This vision of the judiciary and the medical patients had ceased with the emergence of the idea that they - they also had rights, and the consecration of this idea was of course the adoption of Law of 4 March 2002 on patients' rights and quality health system.
This dedication has not taken place the day Suddenly, it is the result of a jurisprudential evolution: indeed, if the judge first considered that they should not advertise to patients the risks to which they submitted in accepting a particular intervention, regardless matter the risk, it has progressively condemned the practice of physicians qualified to then "paternalistic" not to retain them know that for them - selves.
However, if this case has touched the plastic surgery, and this early, it is not the same for aesthetic medicine, appeared recently devoted including the creation of the University degree in Medicine Morphology and Anti - Age of Paris XIII, thus raising the need for a status of Aesthetic Medicine: indeed, at the time that we dissertons, what obligations are required to aesthetic doctors?
East - what the obligations of cosmetic surgeons and if so, how not surprising that they have the same obligations as those - but not this the same rights as between one another using the famous Botulinum toxin?
May - should be - they settle the obligations assigned to general practitioners?
But then in that case, why should - there be a differentiation between general practitioners on one side and the other aesthetic doctors who hold a specific OF authorized to perform certain acts to which GPs can not claim ... Would
- it not then a gap between rights granted to physicians and aesthetic requirements "lean"?
The contemporary situation leads to curiosity by which a medical practitioner by a French university in the context of a specific skill, not in a position to know the limits and constraints of its status, for the time absent.
The creation of a Diploma in Medical and Morphological Anti - Aging Medicine opens new concerns, leaving the field that is traditionally devoted to bringing in an unexplored dimension but that is precisely the one where patients await more.
The author of these lines are deeply pleased that the university finally agreed to come out of a torpor that has too long been alleged, to dare the adventure of a different medicine for different patients.
He welcomed especially as the framework within which this opening is strict and demanding, leaving no room for chance and quackery, the winners of the Diploma in Medical and Morphological Anti - Aging testified.
However, all is not done, and much remains to be done, the framework of the discipline by ad hoc legislation, specifically tailored to the professional practices of these physicians Avangard, being a example.
For now, we must be content to return to the source of medical law applicable regardless of the circumstances, it is highly recommended for practitioners to know, since the patients themselves, do know more ...
As for the obligation of information, several questions arose:
- What should be its content?
- What should be its quality?
- Who must notify?
- In case of dispute, which must provide proof of information?
- How sanctioned the lack of information?
Regarding the content of information, the judges ruled initially that the reasonably foreseeable risks to patients were to be announced.
The judge chose to quantify this predictability: thus, for every case that comes before him, he would assess the predictability of risk was done by experts.
The administrative judge followed the judicial court a decade later: the exceptional risk need not be mentioned to patients.
This case has not yet persisted: in effect, hide unusual risks can lead to serious consequences that the judge wanted to avoid patients hope that the legislature has taken up later by endorsing his decisions.
Thus, the Court of Cassation has ruled the first Hédreul in 1997 in which she has devoted the fact that the information given to patients should focus on all serious hazards, even exceptional.
The State Council has once again taken the ordinary courts in 2000, in two judgments delivered on the same day, and here is the reasoning. When the act
there are known risks of death or disability, you should inform the patient for his free and informed consent: the mere fact that the risks are realized exceptionally does not absolve the doctor of their reporting obligations, obligation which it is taught in only three cases, namely the urgency, inability or refusal to inform the patient.
This means among other things also that if the risk is only theoretical, the doctor will not have to mention it to patients.
Finally, the Act of March 4, 2002 on the rights of patients and quality health system has Acte this principle in Article L 1111-2 of the Public Health Code which provides that "Everyone has the right to be informed about his health.
This information relates to the various investigations, treatments or preventive measures that are proposed, their usefulness, their degree of urgency, their consequences, frequent or serious risks reasonably anticipated to be performed as well as alternatives and on the likely consequences of refusal.
Where, after carrying out investigations, treatment or preventive actions, new risks are identified, the person concerned must be informed, except in cases of inability to find her. "
However, with regard to cosmetic surgery, the judge has been much quicker to put strict conditions on the content of the information delivered in the field of surgery history: indeed, since 1969, the Court of Cassation stated that the client's cosmetic surgery must be informed of all risks, even rarer.
The State Council has joined his fellow on the ground - there, in a ruling dated 1996 and which imposes an obligation to inform all the risks to public institutions cosmetic surgeons as their fellow liberals.
A stop 1998 is introduced to complete the device in that it has been tried by the Court of Cassation that "in matters of medical or surgical treatment for aesthetic purposes, the information should cover not only risk serious intervention, but also on all the inconvenience that may result ".
Regarding the quality of information, that - it must be clear, fair and appropriate.
This means first that the doctor must deliver information that is understandable by the patient: thus, the use of overly technical language that would be there - even incomprehensible by the patient is related to defective information.
Information must be accurate both in her care - even as the consequences of this treatment.
As regards the author of the information, the obligation applies to both the prescribing doctor and the medical director of the prescription.
Regarding the proof of the information, that - has long been charged to the patient. The
- they had to prove that the doctor had not provided specific information to enable him to make an informed decision.
This evidence was of course impossible to report, and many patients were rejected their appeal.
Only in 1997, always on the occasion of the adoption Hédreul that the Supreme Court proceeded to reverse the burden of proof with respect to section 1315 of the Civil Code which provides that "he who claims the performance of an obligation must prouver.Réciproquement, who claims to be released to justify the payment or the fact that produced the extinction of its obligation ".
In other words, the physician is required to prove that he has issued information to patients since their obligation to inform of a statute.
It is within this framework that have developed forms and landfills that doctors were patient sign, otherwise refuse to perform any act, the fear of being held liable in mind always.
These forms have gradually seen their numbers decline due to the relaxation that has been made: in fact, all evidence is accepted, it - it no longer necessarily formalized in the form of writing.
Regarding the sanction of the lack of information, that - it amounted to a loss of opportunity, namely the loss of a chance for the patient to have had his knowledge all the relevant data allowing it to take its decision to proceed with the act or not in good conscience.
In failing to issue all of the information, the doctor denies patients a chance to refuse it made a specific intervention.
Also in the case of Hédreul case, the Court of Appeals court had ruled in 1998 that the lack of information the patient had lost any chance since the choice of a negative solution would have been unlikely .
The Court of Appeal has paralleled the risks of intervention and health outcomes predictable patient, inform Mr. Hédreul have accepted the intervention.
First Civil Chamber of the Court of Cassation in 2000 while tracing the path which must be suitable for the trial court whether there was a lost opportunity: "the judge must find, taking into consideration the state of patient's health, future evolution, and personality, the effects may have had information on the consent or refusal ".
How this information obligation is expressed - t - it for cosmetic surgeons?
The decree of 17 October 1996 on the advertising of prices of medical and surgical aesthetic had been taken on the basis of Article L 113-3 of the Consumer Code which provides that "any vendor product or service provider shall, by marking, labeling, display or in any other appropriate, inform consumers about the price, the limitations of contractual liability and the special conditions of sale in accordance with procedures established by decrees of the Minister for Economic Affairs, after consultation with the National Consumer Council " .
This Order imposes surrender by the practitioner a detailed quote on a model that subsequently amended by the Decree of 11 July 2005.
The 1996 decree provided for the meeting between - you and the patient's decision to use particular interventions should be a delay of fifteen days, which was considered reasonable enough to allow the person to think about the information that the practitioner had issued a decision and take an informed decision.
This period of fifteen days has nevertheless been repealed by the State Council in that it was contrary to freedom of contract : He was attacked by 39 other doctors between aesthetic which had joined the Association of Aesthetic Medicine.
But that deadline has again in the 2005 decree which states that "pursuant to Article L. 6322-2, a minimum period of fifteen days must elapse between the issuance of detailed estimate, dated and signed by the practitioners mentioned in 1, 2 and 4 of section D. 766-2-14 to perform cosmetic surgery.
There can be no case deviated from that period, even at the request of the person concernée.Le surgeon who has met the person concerned must practice itself surgery, or provide information during the meeting that he will not himself or any part of this intervention. This information is stated on the quote. "
This provision of the 2005 decree had not been the subject of a repeal, it follows that the practitioner who does not respect this deadline could be prosecuted.
While it is difficult to establish an estimate in such a matter what cosmetic medicine, because we touch the living: patients do not all react the same way and the care during the course of an intervention will depend on many factors.
The State Council has validated the fact that the estimate is not exclusive of adjustments resulting from special events to consider.
As for the Act of March 4, 2002, it only refers to a detailed estimate but does nothing else, reaffirming the need for a body of standards adapted to the specificities of Medicine Morphology and Anti - Ages, if it contains the proceedings of cosmetic medicine, not limited to them.
Fabrice DI VIZIO
Mathilde Duval
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