This article discusses the conditions for compensation of a medical victim.

1- “Medical victim” status

Any person who has suffered a medical error or a therapeutic hazard is considered a medical victim.

The medical error is considered when the doctor commits a diagnostic error or a delay in diagnosis. This error must have harmful consequences on the patient’s health. It is a professional fault that engages the responsibility of the doctor in charge or of the health establishment.

Therapeutic hazard does not constitute in itself a medical fault but a medical accident. It is characterized, for example, in the presence of an iatrogenic condition or a nosocomial infection.

An iatrogenic condition results from the undesirable effects that the patient may experience after a medical treatment or a medication prescribed by a physician or a pharmacist.

A nosocomial infection is a virus or bacteria contracted by the patient during a stay in a health care institution.

2- Legal regime of the compensation

– Identification of the nature of the injury
Before applying for compensation, it is necessary to determine the nature or type of your injury. Are you the victim of a medical error? A nosocomial infection, or an iatrogenic disease? Only a medical expertise or the assistance of a doctor specialized in personal injury can determine this.

The expert doctor can be made available to you by the Conciliation and Compensation Commission of your region.

You can also appoint a victim’s medical advisor.

– Medical expertise

The expertise is an act carried out by a doctor specialized in bodily injury. It aims to determine the possible failures and to measure the consequences of the damage suffered by the victim. This step is essential since it allows the expert to confirm or not that you are a victim of a medical error, iatrogenic affection or nosocomial infection etc.

First, the expert examines you and establishes the damage. Then, he divides your bodily injury into different categories or items according to a nomenclature (often the Dintilhac nomenclature). It is this reference system that allows for the evaluation of the totality of your injury. Finally, he will be able to establish the consequences of the injury and thus, quantify the totality of your prejudice.

– Conditions of compensation for a medical victim

When you are a victim of a medical error, you must prove the existence of a fault, a prejudice and the link between the fault and the prejudice.
If the expert’s report confirms that you are the victim of a medical error, you can obtain compensation either from the insurer of the doctor responsible for the error, or from the Oniam (if the insurer fails to act).

In other cases where there is no fault, but a medical accident, such as a therapeutic hazard, you can obtain compensation by the national solidarity (ONIAM). In this case, you must meet certain criteria imposed by the Kouchner law.

First, the medical accident must be attributable to a preventive or therapeutic act.

Secondly, the medical accident must be abnormal with regard to your state of health.

Finally, to obtain compensation, the victim of a medical accident must present at least one of the three following severity criteria
– More than 24% AIPP
– More than 6 months of TIW
– Serious changes in living conditions or incapacity

Moreover, if you are a relative of the victim of a medical error or a medical accident that led to his death, you can ask for compensation for the moral prejudice suffered or the economic prejudice if you depend on him.

– Amount of compensation

When you are a victim of a medical error or accident, the amount of the compensation depends on the number (item) of prejudices identified and quantified by the medical expert.

When you are an indirect victim due to the death of the direct victim, the amount of compensation depends on your relationship with the direct victim.

It is important to remember that there is no official compensation scale. For a quantifiable evaluation of the amount of compensation, you can consult a legal professional or refer to jurisprudence or guidelines such as the Mornet guidelines, which provide an indicative scale of compensation for personal injury.

For any questions relating to a medical accident or its compensation, the network victimaction can help you. Do not hesitate to contact us.