Billed as a "major step forward for democracy" by the French Minister of Health, the French draft law on 'health class actions', adopted on 17 December 2015, enters into force on 1 July 2016. But it is an unsuitable means to compensate for personal injury. Its complexity denies patients the speedy and efficient justice promised and it creates legal uncertainty for professionals, whether they are practitioners or health care manufacturers.
The 486 approved associations of users of the health system may take legal action for the same or similar damages suffered by users of the health system based on the breach by a producer or supplier of a health product (drugs, contraceptives, contact lenses, cosmetics, etc.) or a service using one of these health products.
The action will be rolled out in two phases. In the first, the court will determine, inter alia, the liability of the professional for "personal injuries which may be compensated for" and the notice measures to inform persons who may have suffered personal injuries as a result of the breach.
Long and uncertain proceedings for users
During this first phase, three factors will significantly slow down proceedings. Recourse to medical and scientific experts to establish whether the breach is attributable to the professional from whom liability is sought will be systematic. The notice measures will only occur after all appeals have been exhausted. The time limitation set by the court to join the class as a user could be anywhere between six months and five years.
In plain language, five to ten years will elapse before the second phase - compensation - can even start. During this second phase, users will make their claims for compensation known to the professional held liable. In the event the practitioner or health care manufacturer refuses to compensate the user, individual legal action will have to be brought.
This stage will require a new court-ordered appraisal to, on the one hand, establish that the user's personal injury is attributable to the health product in dispute in accordance with the judgment rendered on liability and, on the other, to assess damages. If we exclude any appeals the professional might bring, about two years will be needed to obtain an enforceable compensation award.
In total, about seven years may elapse before a health class action reaches its conclusion.
Legal and financial uncertainty for professionals
The Public Health Code does not provide an...