Abstract: Less than one year after its decision on the famous Perruche case (2000.11.17), the Assemblée plénière of the French Supreme Court has again ruled on the question of the damage awards to compensate for the birth of a disabled child due to medical failures. Even if in these three cases the French Supreme Court rejects the appeal against the contested decisions which had refused damage awards, these cases remind, in very clear terms, the damage award principle for child disablement, established by the Perruche case.
In these three cases, gynaecologists committed errors. Most often, they incorrectly performed and misinterpreted ultrasound scans. Thus, they did not inform the mothers of detectable malformations of the foetus (respectively: spina bifida malformation of the spinal column, a child born without his left arm and with a half reduced right arm andimportant malformation of the upper right limb).
In all these cases, the first instance judges recognized physicians’ failures, so that this issue was not discussed at the French Supreme Court. Even if the contested decisions of the first instance judges sentenced the physicians to compensate for the personal damages of the parents related to the birth of a disabled child, they rejected the claims for damage awards to the children themselves (claims that had been filed, in their names, by the parents). The various Courts of Appeal based their judgements on the lack of causal link between medical failures and the disablement of the children. Rejecting the appeals aimed against these Courts of Appeal, the Assemblée plénière has approved their refusal to allow damage awards to the child. But one should not be misled. This does not mean that the Assemblée plénière reconsidered the principle of damage award for the disablement of the child; simply, in these cases, the conditions for allowing damage awards were not satisfied because of the lack of causal link between the disablement of the child and the medical failures.European Review of Private Law