Victim of medical error during care abroad and medical tourism
The patient’s journey as part of medical tourism
For example, some unscrupulous medical tour operators who refer their customers, future patients, consult doctors in France, whose contact details can be directly provided on the website.
In this way, a first consultation takes place on the French territory.
However, it is clear that some practitioners send to the tour operator thereafter medical data of the patient in perfect violation of the medical secret in order to prepare the operation.
This one takes place abroad and the ten destinations of care are frequented mainly by the beneficiaries of the French health insurance. Among these countries are Hungary, Spain, Portugal and Romania, among others.
Unfortunately, this type of organization, which is entirely detrimental to the ethical principles to which dentists are subject, creates risks for the patient.
Indeed, the occurrence of a medical error for an act performed abroad remains problematic in terms of compensation for damages for the victim.
How to get compensation? Who to contact?
The first tip: get your medical record. It is also necessary that the tour operator and the doctor deign to transmit these elements.
It is not uncommon to note that some French doctors claiming that the law of March 4, 2002 does not apply to them for interventions they have made abroad exemptions to submit the medical file to the patient.
They are bad faith and are mistaken heavily because by monitoring care in France, they must respect their oath and the French legal provisions in this area.
In case of difficulty, it will be up to the vict im e to make a lawyer in order to obtain this medical file which is the basis of all actions in compensation and the way to a compensation for damages including that of the alien.
Disciplinary and proven disciplinary mistakes of the doctor thanks to your lawyer
Dental surgeons, like any doctor, must respect the ethical obligations imposed on them in respect of the rights of their patients.
In its newsletter of September 2014, the national order of dentists states among the reasons for the conviction of three of its practitioners a violation of medical confidentiality.
In fact, dentists had a partnership contract with a private clinic in Hungary. A commercial company acted as an intermediary and allowed the patient to be orphaned through his website.
The disciplinary chamber of the Council of the Order considered that the transmission by the practitioner of medical documents concerning his patients to the commercial manager of the website constituted a breach of medical confidentiality.
These three convictions are also based on other ethical principles, all related to the fact that medicine is an art and can not be practiced as a commercial activity.
Complex compensation procedure, which requires the assistance of a lawyer
First, the foreign element present in the ” low cost ” medical care process makes the rules of law applicable to the species complex.
The contract between the doctor and the patient who will receive care outside his country of affiliation remains a contract of care, regardless of the presence of an intermediate commercial company.
However, there may be no contact between the patient and the surgeon before the patient arrives in the country of care.
Indeed, patients are referred by an operator to a doctor in France who will be responsible for performing preoperative examinations.
These methods, which tend to commercialize health, raise a number of problems, such as liability and the competent court in case of medical error. Mattheva Assistance is here to answer your questions and help you in such steps.
In principle, Articles 42 of the Code of Civil Procedure and 14 of the Civil Code determine the territorial jurisdiction of such a contract.
However, when a surgical procedure has been performed abroad and an error has been made or a hazard arises, specific rules of international law intervene.
It is important to distinguish the medical or surgical procedure carried out in a Member State of the European Union and outside. In European matters, two regulations specify the applicable principles:
– Regulation 44-2001 of 22 December 2002, “Brussels I”
– Regulation 2201-2003 of 27 November 2003, “Brussels II bis”
Thus, under Article 5 (1), an option of jurisdiction exists in favor of the ” court of the place where the obligation, which serves as the basis for the action, has been or must be enforced .”
The rule of European jurisdiction would therefore require the court of the country in which the surgical act took place.
Fortunately, in the context of the development of a current medical tourism, one can only note the competence of the French judge. You can therefore call on the assistance of your Mattheva Assistance network lawyer without any hindrance.
Indeed, in medical contracts involving a tour operator, the care service often begins at the first visit called “preoperative” and force is thus to note that the execution of the contract itself begins on the French territory.
Consequently, French law may be applicable even if the damage resulted from the surgical or medical act committed abroad, since the execution of the contract of care began in France.
In this way, you will be able to hope to obtain compensation for damages suffered as a result of legal proceedings during which your lawyer will assist you.