[Reflections on the Perruche judgment]

The Perruche case has been widely talked about. By conceding the responsibility of a doctor who did not detect that a pregnant woman had rubella, the plenary meeting of France's highest court of appeal acknowledged a causal link between a doctor's mistake (diagnostic error) and a child's disability. Not only is this outcome open to criticism from a legal point of view, as the doctor is not responsible for a disability linked to the mother's rubella, but it is also questionable on an ethical basis. The doctor's error did not cause the disability of the child but only the birth of this disabled child (if the mother had been aware of her state, she probably would have terminated her pregnancy). This judicial decision therefore implies that the birth of a disabled child can constitute a prejudice. Even if the judges' intention was to compensate the disabled child and this was reaffirmed in recent decisions, such judicial precedents deserve to be contested.