National Health law on class action for personal injuries in France
The French National Health Law (the “Law”) has recently been voted, which extends the availability of class actions to claims for damages in relation to personal injuries caused by health products.
Entry into force is scheduled on 01 July 2016 at the latest.
Background
The introduction of class action into French law has been discussed for decades. Many bills or discussions have been introduced in the public debate, but to no end until recently.
On 17 March 2014, France adopted a new Consumer Law that introduced class action: law n°2014-344 (the so-called “Hamon Law”). This law includes a class action procedure but is limited to consumer protection and antitrust claims. The procedure is only available for recovering tangible damages and cannot be used for claims based on personal injuries. The law came into force on 01 October 2014.
At the time of adoption, however, the government stated that it would review the new Hamon Law within 30 months (before September 2016) to determine whether to extend the procedure to health and environmental claims. According to some authors, it is surprising for this Law to provide for the introduction of class actions in matters relating to health whereas class actions in matters relating to consumption have just come into force and have not yet proven their effectiveness nor success.
However French Minister of Health, Marisol Touraine, has accelerated this plan by inserting a class action procedure into the National Health Law which was published on 26 January 2016 (Law no 2016-41).
Before publication the law was examined by the Constitutional Council which considered on 21 January 2016 that provisions of the Law on class action for personal injuries caused by health products were constitutional. It considered that (1) retroactivity of the new setup is constitutional, since it merely opens a new kind of procedure for pre-existing losses or claims (as opposed to retroactively modifying the content of the law), and (2) the judgment on liability does not need to detail further how each individual indemnification shall be calculated.
Article 184 (former article 45 of the bill) of this Law provides for the introduction of class actions in matters relating to health. It introduces article L. 1143-1 and following in the Public Health Code.
Content of the Law
Who?
Claimants: the action has to be initiated by a registered association representing users of the health system. What ought to be noted is that the association could be representative at a national or local level, while the Hamon Law only allows a few selected representative national associations to launch class actions. Presently, there are 15 such consumers associations. In contrast, among the French associative landscape, patients’ associations represent almost 500 entities. Associations are given mandate by “users of the health system” who are “placed in a similar or identical situation” to bring claims before court.
Defendants: potential defendants include the manufacturers and suppliers of health or cosmetic products if the injury is caused by a defect in those products, or healthcare professionals and organisations, if the injury is caused by the professionals’ use of those products. Their insurers can also be brought before the court.
The National Health Law allows bringing actions in either civil or administrative courts, depending on the nature of the defendant.
Voluntary or forced interventions are not provided for in the Law but should be possible as in regular proceedings.
What?
The scope of the health class actions is broad. It allows patients’ associations to seek redress for physical injuries.
These physical injuries have to be caused by specific health products listed in Article L. 5311-1 of the Public Health Code, which are products placed under the control of the National Health Authority. These products are, in a non-exhaustive manner: medicinal products, contraceptives, medical devices, diagnostic tests, blood and cellular products, organs and tissues, compounded products, therapeutic products, contact lenses and non-corrective lenses, cosmetic products, etc.
Other products causing physical harm such as food supplements, psychoactive substances, pesticides, work-related accidents or occupational diseases are therefore excluded from the scope of the Law.
It is not sure yet whether moral prejudice such as anxiety prejudice would be included in the scope of the losses to be indemnified.
How?
The Law provides for two procedural steps. The first step is a ruling on liability, and the second one is the indemnification of claimants. Along these two steps, another way to achieve indemnification is suggested through amicable indemnification (mediation).
During the first step the patients’ association will have to file a claim. Some exemplary judicial expert reviews should take place during this first step. The civil court will then decide on the defendant’s general liability towards the claimants’ group based on these exemplary cases.
Provisions or consignment could be ordered by the judge during this first step.
The new setup is an opt-in procedure: once appeals are exhausted and the judgment becomes final, criteria for joining the group of claimants are made public under the conditions to be ordered by the judge, and notice is provided to the absent claimants group members as defined in the judgment, who are given between six months and five years to join the case and enforce their claim. The judgment lays down the conditions which have to be met by each claimant, the nature of damages to be indemnified, etc.
The mediation option is open during this first phase: the judge can nominate a mediator. The mediator would then have three months (a period which is renewable once) to suggest an agreement to the parties. If the association and at least one of the defendants accept it, an indemnification agreement is signed and recognized by the judge. The agreement does not have to decide on liabilities.
The second step is about indemnification: claimants can either try to obtain it through the association or by themselves. Depending of the benevolence of the party declared liable in the first step, they can obtain it amicably or ask the judge to enforce the first step judgment. A judicial expert will review the case of each claimant to evaluate his losses. Provisions or consignments may be ordered.
These proceedings and timing might be very long since the second step (indemnification) can only start when all possibilities of appeal against the decision on liability have been exhausted.
