En responsabilité médicale, point de droit acquis à une jurisprudence

Staphylococcus aureus, 50,000x, USDA, ARS, EMULorsque les médecins sont mis en cause dans leur responsabilité civile professionnelle, ils ((Ou plutôt leur conseil !)) peuvent parfois étonner par l’imagination et l’inventivité qu’ils s’échinent à déployer pour leur défense.

En effet, imputant sa contamination par le virus de l’hépatite C, au traitement de ses varices, réalisé en 1986 par injection d’un liquide sclérosant, une patiente a recherché la responsabilité de son médecin. Celui-ci fait grief à l’arrêt de l’avoir déclaré responsable de la contamination de sa patiente par le virus de l’hépatite C et de l’avoir condamné à verser une certaine somme à titre de provision.

Pour contester les décisions du juge du fond ayant retenu sa responsabilité, le médecin faisait valoir qu’à l’époque des fais litigieux, « la jurisprudence mettait à la charge du médecin, en matière d’infection nosocomiale, une obligation de moyens. » Dans ces conditions, il ne pouvait aucunement lui être reproché d’avoir manqué à une obligation de résultat dès lors que c’est par un revirement de jurisprudence postérieur aux actes commis que l’existence de cette obligation de résultat avait été consacrée.

En décidant néanmoins qu’il était tenu d’une telle obligation, la cour d’appel l’a privé du droit à un procès équitable, en violation des articles 1147 du code civil et 6 de la Convention européenne de sauvegarde des droits de l’homme et des libertés fondamentales. Traduisez : le médecin, victime de cette nouvelle jurisprudence, n’a pas été mis en mesure de bénéficier de la stabilité des normes qu’il était légitimement en droit d’attendre au regard de la sécurité juridique.

Dans un arrêt admirablement lapidaire en date du 11 juin 2009 ((Cass. Civ. 1ère, 11 juin 2009, n°07-14.932.)), la Cour de cassation relève que « la sécurité juridique, invoquée sur le fondement du droit à un procès équitable, pour contester l’application immédiate d’une solution nouvelle résultant d’une évolution de la jurisprudence, ne saurait consacrer un droit acquis à une jurisprudence figée, dès lors que la partie qui s’en prévaut n’est pas privée du droit à  l’accès au juge. »

Plusieurs enseignements peuvent être tirés de ce court mais dense passage.

La généralité des termes utilisés par la Cour de cassation frappe d’abord l’esprit du lecteur, de sorte qu’il y a lieu de considérer qu’il s’agit d’un arrêt de principe.

On se souvient par ailleurs de ce que la jurisprudence judiciaire faisait peser sur le médecin une obligation de moyens en matière d’infection nosocomiale, jusqu’au fameux revirement du 29 juin 1999, terme que les juges ont choisi à dessein de ne pas employer, en préférant utiliser le mot « évolution », dans la mesure où ils considèrent que leur œuvre prétorienne n’est pas figée, et qu’il n’existe pas de rupture entre l’ancienne et la nouvelle jurisprudence.

Au surplus, la rétroactivité n’étant pas inéquitable, du point de vue de la victime tout du moins, elle n’a pas à être circonscrite et elle peut très bien saisir des faits antérieurs.

Enfin, le médecin, qui voit peser sur lui une obligation de résultat en cette matière ne pourra s’en exonérer qu’en prouvant la cause étrangère.

Omar YAHIA

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