TROCELLIER v. FRANCE
Inadmissible
The applicant, Mrs Marie-Thérèse Trocellier, is a French national who was born in 1943 and lives in Marvejols. She was represented before the Court by Mr P. Sirgue, a lawyer practicing in Bordeaux. The French Government (“the Government”) were represented by their Agent, Mrs E. Belliard, Director of Legal Affairs, Ministry of Foreign Affairs. The facts of the case, as presented by the parties, may be summarised as follows. On 11 July 1988, the applicant underwent gynaecological surgery (a hysterectomy) under general anaesthetic in the Montpellier Public Hospital. When she came round, her left leg was paralysed. Whereas she had been able-bodied prior to the operation, subsequently she could only move about in a wheelchair or on crutches. On 2 May 1990 Dr Arnaud, an expert in forensic medicine at the court of appeal, examined the applicant at her request. His report stated, inter alia: “... immediately after [the] operation paralysis of the entire ... lower left limb occurred. To date, in spite of the various hypotheses put forward and ... the numerous in-depth examinations which have been carried out ..., it has not been possible to ascribe a precise aetiology to Mrs Trocellier’s paralysis which would cause her sensory-motor disorder. The only undisputed fact is that this flaccid paralysis appeared in the immediate aftermath of the most recent operation on 11 July 1988 (on the following day). Mrs Trocellier would appear to have a medico-psychological ‘field’ which could have had an adverse impact on the durability of such disorders and the establishment of her current state. Nevertheless, as all the specialists agree ..., [she] has sustained a serious sensory-motor neurological injury, affecting the entire lower left limb, which arose following the operation of 11 July 1988. Is this the result of direct traumatic lesions to the nerve trunks ... or incorrect positioning on the operating table? It is very difficult to choose between the various hypotheses put forward. In any event, [the applicant] has a serious disability which, in spite of every attempt at physiotherapy, seems to be permanent and without any significant possibility of improvement. Even if, as has been suggested, Mrs Trocellier’s personal psycho-pathological ‘field’ could have played a role in this situation, it is not the cause of it, which must be ascribed to the operation of 11 July 1988. It thus appears reasonable to request compensation for these post-operational complications from Montpellier Hospital. On the other hand, no ‘serious’ fault giving rise to personal liability can be ascribed to the various specialists who treated the patient.” On 13 April 1991 Dr Bondeelle, who held a degree in judicial compensation for personal injury and acted as an expert for the Carpentras court, examined the applicant at her request. His report, dated 29 April 1991, found that the applicant’s paralysis had begun immediately after the operation of 11 July 1988 and concluded: “... the only possibilities are: (a) incorrect positioning on the operating table; or (b), ‘sleep syndrome’, which is very similar ... Whatever the underlying psychological reality – and in this regard we ... found Mrs Trocellier not merely uncomplaining but also surprisingly serene – the causal link is clear to all.” On an urgent application by the applicant, the President of the Montpellier Administrative Court appointed a medical expert (Dr Giraud), who examined the applicant and studied her medical file. His report, dated 10 December 1992, concluded that there had been no medical or organisational error on the part of the hospital department. In particular, the report stated: “... Mrs Trocellier underwent a hysterectomy on 11 July 1988. Since the operation there have been indications of a left crural injury, namely minor problems of sensitivity and motility in the area of the lower left limb which is innervated by the crural nerve. This is a relatively frequent post-operative complication following a hysterectomy. The reason [for it] has not yet been identified with any precision; it is known, however, that these problems generally disappear after about three months. Four years later, however, Mrs Trocellier is still suffering from monoplegia of the lower left limb ... We are ... led to conclude that what we have here is pithiatic monoplegia of the lower left limb, linked to conversion syndrome. No psychosomatic or anatomical condition corresponds to the dysfunction complained of. Consequently, we can state that the observed monoplegia, of a conversion-syndrome type, has no causal link to the operation. However, while the operation is not responsible for the establishment of this pithiatic monoplegia, there is no doubt that [it] occurred immediately after the operation and especially after a crural injury linked to that operation. This pithiatic monoplegia could only have appeared in a woman who had a predisposition to psychological problems of this nature, but the Court of Cassation has ruled that under no circumstances may one refer to a predisposition that had not [previously] come to light, and it would not appear that Mrs Trocellier had shown signs of psychological problems of this nature in the years preceding the operation, not having seen a doctor for that reason and not having been treated at home or in hospital for such problems. ... No medical error occurred and the operation proceeded normally but, in a predisposed environment, [it] triggered a conversion syndrome on a bias point which, in Mrs Trocellier’s case, took the form of pithiatic monoplegia of the lower left limb. In consequence, even if there was no error or fault on the part of the care team or hospital, given that the problems were indisputably triggered following the operation, it might be possible to envisage compensation for the consequent dysfunctions from a legal perspective, without a medical error having occurred during the operation; this will be for the court to decide. We emphasise that, in this approach, imputability must be considered absolute from the medico-legal perspective, since it has been impossible to produce evidence of [Mrs Trocellier’s] previous condition, even if, medically speaking, her previous condition is perfectly clear. ...” The applicant applied to the Montpellier Administrative Court, seeking to have the Montpellier Hospital declared liable for the detrimental consequences of the surgery of 11 July 1988 and to obtain an order that it was to pay compensation for her personal injury. Her application was dismissed on the following grounds by a judgment of 8 October 1997. “... The inquiry into the facts, and particularly the expert report ordered in interlocutory proceedings, revealed that the operation ... proceeded normally, with no medical error or fault by the theatre team which could be alleged to have caused the emergence of the problems complained of by the claimant, and that the monoplegia observed in [Mrs Trocellier] is not imputable to the conditions in which the operation was carried out; the circumstance that this operation could, as a psychological factor, have triggered a conversion syndrome on a bias point which, in the patient’s case, took the form of pithiatic monoplegia of the lower left limb is not in itself sufficient to establish a causal link between the operation and the paralysis complained of by the claimant ...” The applicant appealed against that judgment to the Marseilles Administrative Court of Appeal. She complained, in particular, that the hospital had failed in its obligation to inform her fully of the risks connected with the operation that she was to undergo, with the result that she had not been able to give informed consent and had failed to carry out prior research into whether she was predisposed to somatisation. The Administrative Court of Appeal dismissed the appeal in a judgment of 1 April 1999, giving the following reasons. “... The expert report reveals that, although the problems suffered by Mrs Trocellier, which appeared in the hours following the operation before assuming a permanent nature, arose on the occasion of that operation, they are not a direct consequence of it but are only the expression of psychosomatic tendencies which had already been exhibited at a previous stage by Mrs Trocellier; there is therefore no direct causal link between the symptoms shown and the operation carried out. Mrs Trocellier also seeks to establish the hospital’s liability, alleging that it had committed a fault in failing to carry out in-depth tests prior to the operation in order to take account of these tendencies and cancel the operation in question; on the one hand, it is not alleged that the hospital was aware of this psychological frailty in Mrs Trocellier and, on the other, in any event, the investigation reveals that the persistence of the appellant’s gynaecological problems over several months, in spite of various measures, amounted to an indisputable indication for the operation, having regard to the chronic and disabling nature of those problems, which were indeed completely removed by the operation. ...” The applicant appealed to the Conseil d’Etat. In her full pleadings, complaining in particular that the appeal court’s judgment had not replied to her argument alleging a lack of investigation and information, she invited the Conseil d’Etat to hold that that judgment should be quashed and to determine the merits of the case. On 6 June 2001 the Conseil d’Etat dismissed the appeal in a judgment which was worded as follows: “... The evidence submitted to the trial judges reveals that, when finding that ‘there is ... no direct causal link between the symptoms shown and the operation carried out’, the court did not distort either the facts of the case or the conclusions of the expert report drawn up at the request of the Montpellier Administrative Court, which noted that there is no direct link of cause and effect between the monoplegia suffered by Mrs Trocellier and the operation. In ruling that ‘there is ... no direct causal link between the symptoms shown and the operation carried out’ and by thus finding that the precondition for any liability on the part of the hospital, either on the ground of strict liability or of liability for negligence, was not met, the court gave sufficient reasons for its judgment ...” In her observations in response to those of the Government, the applicant added that, at her lawyer’s request, an expert named Michelet had confirmed the following in a report of 30 April 2005 (not produced). “In this case, there is an obvious cause for the patient’s condition, namely the operation of 1[1] July 1988, complicated by a lesion of the left crural nerve. The relationship between this cause and its consequences is substantiated by several factors: an initial injury to the crural nerve, confirmed by electromyogram; a neurological syndrome of functional lameness of the lower left limb, in a person who was thus predisposed; and an unconscious conversion in relation to the experience of the operation and the subsequent complication, taking the form of an injury to the crural nerve, which developed into a pithiatic symptom. These complications are disproportionate to what might have been expected from the initial hysterectomy. Conclusion: the problems evidenced on this date are to be directly and exclusively ascribed to the consequences of the operation of 1[1] July 1988.”