Surgical Error
Your rights. Your legal options. Your compensation.
Something went wrong during surgery. The outcome was not what you were told to expect. You are suffering from after-effects. Knowing whether you are a victim of a surgical error — and how to act — is your first right.
☎ Call the firm — 01 86 48 07 00⚠ A largely underestimated toll: in France, medical accidents cause between 30,000 and 50,000 deaths per year and at least 150,000 cases of permanent disability, according to Professor Marc Tadié (July 2026). These figures underline both the scale of the problem and the importance for victims of asserting their rights.
Surgical error: what does it mean in law?
Not every post-operative complication is an error. French law distinguishes three situations:
⚠ Medical negligence
The surgeon or care team failed to meet the current standard of care (incorrect surgical technique, wrong operative site, inadequate post-operative monitoring, delayed diagnosis…). Liability is established.
● Therapeutic hazard
The complication occurs without negligence, despite an irreproachable technique. Compensation may nonetheless be obtained through the ONIAM if the damage reaches a certain severity threshold.
■ Failure to inform
You were not informed of the risks of the operation before signing the consent form. The surgeon is liable even in the absence of technical negligence (Cass. Civ. 1, 3 June 2010, No. 09-13591).
◆ Hospital-acquired infection
Infection contracted during hospitalisation. Presumed liability regime (L. 1142-1 II CSP): the establishment is liable unless it proves an external cause.
How to prove that an error occurred
Proof rests essentially on your medical records and on the report of a court-appointed expert. The approach is progressive:
- Obtain your complete medical records Every patient has the right of access to their records (L. 1111-7 CSP). These contain the operative report, prescriptions, anaesthesia records and post-operative monitoring notes. This is the central document.
- Consult a patient medical adviser This physician (separate from your GP, separate from the insurer) analyses the records and assesses whether the acts complied with current medical standards. Their report prepares the court expert examination.
- Refer the matter to the CCI or the court Depending on the severity threshold and the nature of the alleged fault, the Commission de conciliation et d'indemnisation (CCI) or the civil court will have jurisdiction. In both cases, an independent medical expert is appointed.
- The court expert examination It establishes whether there was negligence, the causal link with the after-effects, and calculates the heads of damage (Dintilhac nomenclature). The presence of your lawyer and medical adviser at this examination is decisive.
Who can be held liable?
Several parties may be liable, alone or jointly:
The surgeon
In private practice (private clinic), the surgeon bears personal liability for any failure to meet current medical standards. They are covered by professional liability insurance — their insurer takes part in the proceedings.
The healthcare establishment
Private clinic or public hospital. Where the fault lies with employed staff (nurse, anaesthetist, care assistant) or involves a hospital-acquired infection, it is the establishment — not the practitioner — that is liable. For public hospitals, proceedings fall within the jurisdiction of the administrative courts.
The anaesthetist
The anaesthetist's liability may be engaged independently of the surgeon's: inadequate monitoring, dosage error, insufficient information about anaesthetic risks.
The medical device manufacturer
If the complication is caused by a defective implant, prosthesis or instrument, the manufacturer may be liable in addition to the surgeon (Directive 85/374/EEC on liability for defective products).
Available compensation pathways
1. The Commission de conciliation et d'indemnisation (CCI)
Amicable route, free of charge, accessible if the damage meets the severity threshold set by decree (Art. D. 1142-1 CSP: permanent partial incapacity above 24% or temporary incapacity to work above 6 months, or death, or particularly serious harm). If negligence is found, it is the liable party's insurer that compensates. In the event of a therapeutic hazard, it is the ONIAM. Find out more about the CCI procedure →
2. The civil court (tribunal judiciaire)
For private establishments and self-employed physicians. Allows compensation to be obtained even below the CCI threshold, or to challenge an insufficient offer. Proceedings generally begin with a court-ordered expert examination on an interim application.
3. The administrative court (tribunal administratif)
For negligence committed in a public hospital. Administrative proceedings follow different rules (time limits, courts, remedies). Maître Jaubert also appears before the administrative courts.
4. Rejection by the ONIAM or an insufficient offer
Has the ONIAM rejected your claim or offered a sum you consider derisory? You may challenge this decision before the civil court. Find out more about ONIAM refusals →
Why have a lawyer from the outset?
The medical expert examination is the decisive moment. Without a lawyer, victims frequently underestimate their damages, accept incorrect findings or miss deadlines to challenge them. Maître Jaubert:
- Analyses your medical records and identifies potential negligence;
- Accompanies you and your medical adviser to the expert examination;
- Asks the technical questions and discusses the expert's report;
- Calculates all your heads of damage under the Dintilhac nomenclature;
- Negotiates the compensation offer or pleads before the competent court;
- Coordinates the CCI/ONIAM procedure and court proceedings where necessary.
Maître Didier Jaubert has been handling medical liability cases for more than forty years, before both the civil and administrative courts.
Frequently asked questions
I do not know whether this is an error or a normal complication — how can I find out?
That is precisely the purpose of the medical expert examination. You do not have to answer this question yourself. A preliminary review of your medical records by a patient medical adviser often identifies serious indicators. The firm guides you towards this step from your first consultation.
My operation took place in a public hospital — can I still act?
Yes. The procedure is different: it falls within the jurisdiction of the administrative court (not the civil court). The limitation period is the same (10 years from consolidation). The CCI route remains available regardless of the type of establishment. Maître Jaubert appears before both court systems.
The operation took place several years ago — is it too late?
Not necessarily. The 10-year period runs from the consolidation of your condition — that is, the date on which your after-effects have stabilised, not the date of the operation. If you are still suffering from evolving after-effects, consolidation may not yet have occurred. Contact the firm to assess your specific situation.
The clinic has offered me an amicable settlement — should I accept?
No, not without first consulting a lawyer. An amicable offer is not a legal ceiling. It is often calculated by under-estimating certain heads of damage (future need for assistance, future medical expenses, future loss of earnings). Once accepted and a receipt signed, you can in principle no longer act. The firm analyses any offer before any decision is taken.
Can my family also be compensated?
Yes. In the event of death or serious after-effects, close relatives (spouse, children, parents) may obtain compensation for their own harm: harm of accompanying (suffering caused by caring for a disabled victim), bereavement harm, loss of income related to care-giving. These are separate from the direct victim's own claims.
How long does a procedure take?
The CCI (amicable) procedure takes an average of 12 to 18 months. Full court proceedings generally take 3 to 5 years at first instance, including the expert examination phase. The firm keeps you regularly informed of the progress of your case and seeks the best result in the shortest possible time.