Le consentement en droit médical

Medical law, which derogates from ordinary law, interests and questions by its particularities. However, the Mercier decision of 1936 seems to have denied this by forcing an ordinary “medical contract” between the doctor and his patient. But the medical relationship, far beyond a contractual logic, seems to be unable to blend into the civil law elements of contract law. As such, consent, keystone of this medical matter, does not meet the standards of contract law yet imposed by the Court of Cassation. This article aims to unravel and clarify the scope and regime of this consent not quite like the others.     

Secret médical en santé au travail

The occupational physicians are obliged, like any doctor, to respect the ethical obligations imposed on their profession, including in the exercise of the missions specific to occupational medicine and contained in the Labor Code. The occupational physician is not isolated and works in a multidisciplinary team of a health service at work. He must communicate with other health professionals, but also with employers, representative bodies of staff. Medical confidentiality holds a special place in the triangular relationship between the occupational physician, the employee and the employer. The medical practice in the field of occupational health requires that many provisions of the Labor Code be followed, including the respect of the secret of manufacture and the position of advising employers and employees. The occupational physician must communicate with the employer in order to best achieve his mission, but in practice, it may be difficult for the occupational doctor to make his recommendations heard to improve the working conditions of employees without power, when he cannot argue his opinions on medical information.     

Du secret médical aux dossiers de santé électroniques. Réflexions juridiques sur la protection des données de santé

Health data give rise to a plurality of qualifications. The exercise players are forced this not unusual for the legal system. In the case of health data, especially when these data are processed through folders to which several categories of actors need access, it may still be problematic. Electronic medical records, in which the authorities have in recent years invested a lot of hope and money, fail to cross the course of a generalization though it was presented as being beneficial for our public health system and financing of health spending. Without exaggerating the extent of social problems related to the interpretation and application of standards, it is reasonable to think that they are partly responsible for this fact. After presenting the two great bodies of norms which where initially protecting personal health data, this paper develops the analysis of their confrontation before highlighting the status of one of the most complex issues in this field, that is the people's consent to the various treatments that their data may be subject of.     

Le droit de recours en matière d’autopsies médico-légales

The decision to carry out forensic autopsies is frequently made to determine the reasons of the death, especially in cases of non-natural death. In Switzerland, the judge strictly controls the authorisation to conduct forensic autopsies and the possibility to appeal against such a decision remains limited. This article aims to analyse the legal framework that enables appeals against a decision to conduct a forensic autopsy, taking into account the jurisprudence from the High Court of Switzerland (Tribunal Fédéral) and the European Court of Human Rights.     

Le risque médico-judiciaire des infections nosocomiales

These last years in France, the term ‘nosocomial infection’ has been replaced by ‘health-care associated infection’, which has a much broader definition. In all cases, the plausibility of the association between infection and the care provided deserved to be rigorously analyzed. To qualify an infection as nosocomial, the expert witness must at the judge's request determine that infection actually occurred within the health facility and is linked to health care. French Public Health Code as well the most recent jurisprudence give currently a rather close definition of nosocomial infection. The principle of faultness liability in the field of nosocomial infection has been enshrined in the law of March 4^th 2002, the most severe situations (death; permanent functional deficit > 25 percent) being compensated by ONIAM, the French national office of compensation for nosocomial infection.