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
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
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
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 exhaustive list of
products in respect of which a class action may be initiated,
leaving open a wide scope of application.
There will therefore be no way for professionals to know the
scope of their legal and financial risks ahead of the legal
proceedings. Only during the second phase of proceedings will they
know the number of claimants and the amount of compensation sought.
For five to ten years (the first phase), businesses will face
significant challenges, from an accounting perspective, in funding
Moreover, class actions could be initiated based on health
products that are no longer on the market or for breaches that no
longer exist as of the effective date of the draft law, providing
yet more legal uncertainty for professionals.
Due to the media coverage it may generate, a class action is a
heavy weapon of persuasion in the hands of associations.
Faced with continued media exposure as a result of lengthy
proceedings that may cause significant damage, practitioners or
health care manufacturers may prefer to resolve disputes amicably.
In fact, mediation as an option in any class action was largely
provided for by the legislature – which is certainly no
However, resorting to mediation when a media storm has been
triggered by the announcement of the launch of a class action is
too late to protect the image, reputation or market price of the
Also, it is regrettable that, as is required in class actions
for discrimination, prior formal notice has not been made mandatory
to allow, in the interests of health users and professionals, an
amicable and speedy resolution to be sought.
This client alert was published in its French version as an
article on the French publication L'Usine Nouvelle in June
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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