[Patient information: management in the beginning of the XXIth century]

The Conseil d'Etat, the supreme jurisdiction on legislative matters in France, rendered its decree on January 5, 2000, founding its decision on jurisprudence established in 1997 and 1998 by the supreme Court of Appeals. In accordance with this decision, physicians have a legal obligation to inform patients of all possible risks, including very exceptional risks. The information may be given to the patient in any appropriate form. Proof that information was delivered to the patient is incumbent upon the physician. When proof of information delivery is provided, any injury compensation can only be awarded on the grounds of ill-fate. We conducted an objective review of the jurisprudence on patient information and report the three basic aspects observed in the current situation in France. In application of the Court of Appeals judgments of February 25, 1997 and October 14, 1997, proof of delivery of information to the patient is incumbent upon the physician. The question is whether the physician must retain written documents as necessary proof against future claims. The answer to this question is not straightforward. A written document is not the only proof accepted by the court and could even be of debatable legal value if used inappropriately. The solution retained by the Conseil d'Etat is a good example. The real debate concerns the information content. It now appears that the physician is required to inform his/her patient of all risks susceptible of influencing the patient's decision, particularly serious or life-threatening risks, but also, and most certainly, risks that in the past have been considered frequent but benign. Finally, the judges recall that failure to provide information does not in itself assert the physician's civil responsibility, proof of real damage is also needed. But the reality of damage (ill-fate) depends on the reality of the choice open to the patient had he/she been informed. And the true nature of the choice open to the patient is simply the expression of the dispensable or indispensable nature of the envisaged act. One could say the old adage primum non nocere is making a comeback.