A contribution to the concept of contract in medical relationships.ppx

Abstract : The French rules that govern the medical relationship come both from public and private law and trials related to this relationship can be judged both before administrative and judicial court, depending if the patient is cured in a private or public structure. The medical relationship is analyzed differently in public and private law: •It is a contract in private law, •It is a statute and not a contract in public law. Such differences of qualification would not be theoretically problematic if the concrete situations of patients cured in hospital or in private structure were very different. But this is not the case. Especially since a bill passed in 2002, most of the rules that govern this relationship have been the same. How can two identical situations by differently qualify ? This divergence of qualification has some practical consequences. The refusal of the contractual qualification leads administrative courts to refuse a hospital to sue the patient’s relatives, who had agreed to pay the medical fees for this patient. Since there is no contract between the patient’s relative and the hospital, the court considers the hospital has no right to sue the patient’s relative. The refusal of the contractual qualification could also lead administrative courts to refuse to give effects to agreement made between public hospital and foreign patients who come to France to be cured. Such a solution would be a serious competitive disadvantage on the international curing market and would be problematic for our hospitals, who try to attract foreign patients. Indeed hospitals can charge those patients more than the local one, which thus contribute to reduce their deficits. I believe that the reason of this divergence lies in the ambiguity of the notion of contract. When wondering whether the medical relationship is a contract, the judicial courts look at the procedure that brings together patient and doctor (or clinic), whereas administrative courts look at the rules that govern the relationship between patient and hospital. One focuses on the procedure, the other on the effects. In other fields of law this tension is unseen and the fact that the notion of contract merge these two approaches is unproblematic (see H. KELSEN, 1940). But this does not apply to the medical relationship, where this tension leads to different qualifications and different solutions on concrete problems. If one wants to solve these problems, a choice has to be made concerning the notion of contract. My point of view is that contract should designate the negotiated effects of a relationship, the procedure being then analyzed with the concept of legal act. This implies that some of the rules that are told to govern the contract — mostly the rules that govern the validity — be reattributed to the legal act. Thus, all medical relationships would receive the same qualification, legal act, which would by the way explain why their validity is now governed by the same rules (mostly norms related to the consent of the parties and the aim they follow). The difference between private and public relationship would of course persist when studying some effects of these relationship. But those differences would no more generate the practical inconvenient mentioned above.
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Contributor : Benjamin Moron-Puech <>
Submitted on : Thursday, March 30, 2017 - 3:08:48 PM
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  • HAL Id : hal-01498724, version 1



Benjamin Moron-Puech. A contribution to the concept of contract in medical relationships.ppx. Interaction between legal systems, Leiden Law School, Jan 2015, Leyde, Netherlands. http://leidenlawblog.nl/articles/a-contribution-to-the-concept-of-contract-in-medical-relationships. ⟨hal-01498724⟩



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