Jon Henley in Paris 

France limits the right of those born disabled to sue doctors

The French parliament approved a bill yesterday aimed at curbing the ruling by France's highest court which gave severely handicapped children the legal right to have never been born.
  
  


The French parliament approved a bill yesterday aimed at curbing the ruling by France's highest court which gave severely handicapped children the legal right to have never been born.

The bill, which begins "No one may claim to have been prejudiced by the simple fact of their birth", was adopted by the national assembly in response to last year's ruling, which ordered doctors to compensate a mentally handicapped teenager.

Nicolas Perruche was born deaf, almost blind and severely mentally handicapped after his mother Josette contracted German measles in the early stages of the pregnancy.

The court ruled in November 2000 that Nicolas could sue his mother's doctors because they failed to diagnose the illness or alert Mrs Perruche to its probable effects on the unborn child, denying her the choice of an abortion.

The ruling, which has since been applied in two similar cases, prompted an emotional debate about abortion, disability and the sanctity of life.

Pre-natal practitioners, particularly ultrasound specialists, feared that it would open the door to a flood of compensation claims for more minor disabilities, leading to impossibly high insurance premiums and ultimately preventing them practising.

The ruling was strongly criticised by the Catholic church, which described it as "a declaration that the love showered on handicapped children by countless families is worthless", and organisations for the handicapped, which argued that it was an insult to their human dignity and amounted to a policy of state eugenics.

But Mrs Perruche and other parents of badly disabled children - including Anne Manankoff, whose doctor negligently failed to warn her that pre-natal tests showed that her son had Down's syndrome - have argued that the issue is not moral or ethical but practical, and above all financial.

Suing doctors whose negligence has been proved in court was the only way to get enough money to ensure that a severely handicapped child would be able to live comfortably and with some semblance of dignity, they said.

The new law, which was broadly welcomed yesterday by the medical profession and organisations for the handicapped, is expected to enter the statute books before the general election in June. It treads a carefully considered line between the two opposing positions.

It forbids children born with disabilities to sue doctors or their own parents on the grounds that they should not have been born, but in very limited cases allows parents to seek compensation for the costs incurred in looking after a severely handicapped child.

Such parents will have to prove that the child's disability was directly caused by a doctor - for example, during birth - or that the practitioner missed a very obvious sign of a serious disability, such as Down's symptoms or a missing limb, during pre-natal check-ups.

It also puts a limit on the amount of compensation that can be claimed from doctors found guilty of professional negligence, and bars the social security system from suing practitioners to recover the money that it pays out to parents.

 

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