Brussels, 28/10/2011 (Agence Europe) - In his opinion delivered on Thursday 27 October in Case C-495/10, Advocate General Paolo Mengozzi says that a public healthcare establishment, in its capacity as a service provider, does not fall within the scope of the liability rules contained in the directive on liability for defective products (Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the member states concerning liability for defective products). The directive does, however, allow member states to lay down rules, similar to the regime in place in France, whereby a public healthcare establishment must, even where it is not at fault (“no-fault liability”), pay compensation for injury suffered by a patient as a result of a defect in equipment or a product used in treating him/her. The French rules on the no fault liability of public hospitals can exist alongside the rules of producer liability introduced by the directive.
This particular case, which is pending in the French Conseil d'Etat, involves a patient who, in 2000, suffered burns during surgery carried out at the Centre hospitalier universitaire (CHU - University Hospital), Besançon. The burns were caused by a heated mattress on which he had been laid and which had a defective temperature control mechanism. CHU Besançon was ordered to pay compensation for the injury. The Conseil d'État, hearing this case at last instance, questioned the Court of Justice as to the interpretation of the directive, namely, whether the French rules can co-exist with the rules of producer liability contained in the directive.
In his opinion, the advocate general states that the liability rules introduced by the directive cover the “producer” and, where appropriate, the “supplier”, construed as being an intermediary in the supply or distribution chain for that product. In this case, the CHU did not supply a consumer with a defective product (the heated mattress), but rather was a supplier of care to a patient. It cannot, therefore, be likened to a “supplier” within the meaning of the directive and the safety of the defective mattress should be considered in conjunction with the provision of treatment itself. The scope of the directive does not extend to the liability of a service provider (here the CHU) for injury caused by a defective product in connection with the provision of a service. This position is consistent with the case-law of the Court, according to which the directive is not intended to govern every aspect of the area of liability for defective products but is an initial step towards further harmonisation.
Consequently, in order to ensure effective protection for consumers, the advocate general states that the directive allows member states to lay down national rules similar to those in force in France. Moreover, in the present case, the advocate general points out that only the application of the national rules concerning the liability of the service provider would afford the patient the right to compensation: if the CHU had been likened to the “supplier” of the defective mattress within the meaning of the directive, the patient would have had no recourse to compensation, the 10-year limitation period having elapsed. (FG/transl.rt)