Wednesday 23 March 2005

Grand Chamber

9 a.m. Draon v. France (no.1513/03) and Maurice v. France (no.11810/03)

In these two cases, the applicants are the parents of children with severe congenital disabilities which, due to medical errors, were not discovered during prenatal examinations. They brought proceedings against the hospital authorities concerned, but as a result of legislation known as the “Kouchner Law”[1][2], which came into force while their actions were pending, they were awarded compensation only for non-pecuniary damage and not for the actual costs incurred as a result of their children’s disability.

Draon v. France
Christine and Lionel Draon are French nationals who were born in 1962 and 1961 and live at Rosny-sous-bois (France).

When four months pregnant with their first child, Mrs Draon had an ultrasound scan which disclosed an anomaly in the development of the foetus. Amniocentesis was performed in August 1996 at the Saint-Antoine Hospital, for which the Paris Health Authority (Assistance Publique-Hôpitaux de Paris – APHP) is responsible. No foetal abnormality was detected. However, the child, who was born in December 1996, very soon presented serious cerebral malformation, a major disability and total, permanent invalidity requiring full-time specialist care. The APHP admitted that there had been an error of diagnosis and that the chromosomal abnormality could have been traced when the amniocentesis was carried out.

The applicants issued proceedings in the administrative courts against the APHP. They were awarded provisional damages by the urgent-applications judge of approximately 155,500 euros (EUR).

On 2 September 2003 the administrative court found that the APHP had been negligent and had deprived the applicants of the possibility of seeking a voluntary termination of pregnancy on therapeutic grounds. It ruled that the applicants were entitled to compensation under the Law of 4 March 2002. It dismissed part of the applicants’ claims, and awarded them compensation for non-pecuniary damage only in the sum of EUR 180,000, subject to deduction of the provisional damages that had been paid. An appeal by Mr and Mrs Draon against that judgment is currently pending in the Paris Administrative Court of Appeal.

Maurice v. France
The applicants, Sylvia and Didier Maurice and their minor daughter, are French nationals who were born in 1965, 1962 and 1997 and live at Bouligny (France).

In 1990 Mr and Mrs Maurice’s first child was born with infantile spinal amyotrophy, a genetic disease caused by muscular atrophy. Two years later, Mrs Maurice decided to terminate a second pregnancy on learning that there was a risk that the child she was carrying might be suffering from the same illness.

In 1997 Mrs Maurice became pregnant for a third time and sought a prenatal diagnosis which was performed by an APHP laboratory. The tests did not reveal any abnormalities. The child was born in September 1997 and it became apparent over the following months that she was suffering from the same genetic illness. A report by a medical expert found that there had been a diagnostic error, Mrs Maurice’s results having been mixed up with those of another woman.

The applicants issued proceedings in the administrative courts against the APHP. They were awarded provisional damages of EUR 152,499 by the urgent-applications judge, which amount was reduced on appeal to EUR 15,245, pursuant to the Law of 4 March 2002. In December 2002 the Conseil d’État assessed the provisional damages at EUR 50,000.

On 25 November 2003 the Paris Administrative Court ordered the APHP to pay Mr and Mrs Maurice EUR 224,500 to cover non-pecuniary damage only, in view of the provisions of the Law of 4 March 2002. The applicants’ appeal is currently pending in the Paris Administrative Court of Appeal. The applicants also brought an action against the State arguing that it had engaged its responsibility by passing the Law of 4 March 2002. The action was dismissed at first instance and an appeal is currently pending in the Paris Administrative Court of Appeal.

In both cases the applicants allege that the fact that the Law of 4 March 2002 (the Law) was made applicable with immediate effect to proceedings that were already under way was inconsistent with the principle of equality of arms. They also complain that the Law created unjustified inequality of treatment between the parents of children whose disability was caused by a medical error or the direct act or omission of a third party, and the parents of disabled children who were prevented by negligence from discovering the disability prior to the birth. Lastly, they maintain that, by depriving them of part of the compensation to which they would have been entitled before the Law entered into force, the rules established by the Law prevented them from providing for the needs of their children.

They rely on Article 6 § 1 (right to a fair hearing), Article 13 (right to an effective remedy), Article 1 of Protocol No. 1 (protection of property), Article 14 (prohibition of discrimination) and Article 8 (right to respect for private and family life) of the Convention.


Türkçe Özeti : Anne karnında sakatlığı tespit edilemeyen çocuk için, anne-baba ve çocuk için tazminat verilmesi gerektiğine ilişkin Avrupa İnsan Hakları Mahkemesi Büyük Dairede görülecek olan benzer iki davanın orjinal özet metnidir. İki davada da aleyhine başvuruda bulunulan ülke Fransa'dır. Her iki olayda da, Draon ve Maurice ailelerinin beklenen bebeklerinde, ultrason muayenesi esnasında fetusta anomali riski tespit ediliyor. Amniyosentez yapılıyor ve alınan sıvılar sonuç için Paris APHP Laboratuarına gönderiliyor. Sonuç; "Fetusta anomali tespit edilemedi" şeklinde çıkıyor, ancak bebekler çeşitli sakatlıklar ile doğuyorlar. Yani laboratuar sonuçları hatalı. Ülkelerindeki yargı sonuçlarından memnun kalmayan aileler, ülkelerinde bu konuda kanunların yetersizliği,vs. gibi nedenlerle Avrupa İnsan Hakları Mahkemesine başvuruda bulunuyor ve başvuruları kabul ediliyor.