THE EXTENSION OF CLASS ACTIONS TO THE HEALTH SECTOR
Class actions were first introduced in France by the Consumer Affairs Act of 17 March 2014 and are, for the time being, restricted to relations between consumers and professionals. Furthermore, they can only be instituted by accredited consumer associations at the national level. The aim of the Consumer Affairs Act is to sanction professionals who infringed competition law or breached their legal duties when selling goods or supplying services. Damages are only recoverable under the Consumer Affairs Act for pecuniary losses resulting from material damage. So far, five class actions have been instituted mainly in the housing and insurance sectors.
France’s new draft bill on the ‘Modernisation of our Health System’ extends the possibility of bringing class actions to users of the health system who have suffered physical injuries as a result of defective health products or the application thereof. This draft bill, which was adopted by the French National Assembly on 15 April 2015 and which is currently being discussed by the Senate Committee on Social Affairs, contemplates that the provisions relating to class actions will enter into force by 1 July 2016 at the latest. Under this new draft bill, class actions in the health sector will have the specific feature of being divided into two phases, a first phase related to the defendant’s liability and a second one related to damages to be awarded to the victims.
Phase 1: Instituting class actions against health sector professionals and providers
Prior to the introduction of the new draft bill on the ‘Modernisation of our Health System’, the French Law of 4 March 2002 had introduced an amicable dispute settlement procedure to compensate victims of medical accidents. This dispute settlement procedure was to take place before the regional commissions for the conciliation and compensation of medical accidents. However, according to the impact study of the new draft bill, this law did not adequately address the situation where a medical product caused widespread harm. As a result, the new draft bill contemplates that, in the case where a medical product were to cause harm to more than one person, national and regional accredited associations of health sector users would be entitled to bring class actions to obtain compensation for individual bodily harm caused by the health product.
Jul-Sep 2015 issue
Jones Day