FRANCE: The French National Assembly yesterday overturned a judiciary decision which allowed a handicapped child to seek compensation from the doctor who provided neo-natal care,writes Lara Marlowe from Paris
The Perruche decision, handed down by the Court of Cassation in November 2000, awarded damages to Mr Nicolas Perruche because a doctor failed to diagnose rubella or German measles during his mother's pregnancy. Had Mrs Perruche known she carried the disease, she would have had an abortion. The boy was born severely handicapped, and the decision was meant to guarantee him an income throughout his life.
But pro-life groups staged emotional protests, claiming the decision set a dangerous precedent in establishing what they called "the right not to be born". French doctors - especially obstetricians - also opposed the measure, saying it gave patients the impression they were entitled to a normal infant, and created a danger that doctors would be held responsible for all birth defects.
Dr Jean-Francois Mattéi, a medical professor and centre-right member of the National Assembly, prepared the draft law reversing the Perruche decision. His text, with an amendment proposed by the government, was voted almost unanimously by the National Assembly, marking the first time that a law has been passed to change a Court of Cassation conclusion.
The new law seeks to strike a balance between doctors' responsibility and the uncertainties of neonatal science. Sonograms detect about 70 per cent of deformities, but in the Perruche case there was no sonogram involved.
"No one can claim he has been wronged by the simple fact of being born," says the government amendment. From now on, handicapped children can sue if their handicap was provoked or worsened by a doctor's action. But the failure to detect a deformity is actionable only by the mother - who is deemed to have been deprived of her right to have an abortion - and no longer by the child. Parents may ask for compensation for a handicapped child, but any amount awarded by French courts will be deducted from government allowances. On the initiative of the Health Minister, Dr Bernard Kouchner, payments may continue after the death of the parents.
The Perruche debate occurred while French general practitioners were striking for higher pay and associations defending the rights of the handicapped claimed the state was not making sufficient provision for them.