Class actions: France enacts law on health-related suits

The purpose of the ministerial order is to clarify the rules and procedures for filing class-action lawsuits, over a backdrop of the first class action lawsuit to be filed relating to the “_Depakine_” case was announced on 28 September 2016, and which ministerial order leaves a vast number of questions unanswered, such as: can these proceedings allow for compensation of non-pecuniary damages such as anxiety? Can multiple associations of healthcare users act simultaneously or intervene voluntarily in ongoing class action proceedings? What about multiple associations bringing actions before different jurisdictions simultaneously?

While the above questions remain, we can highlight important factors that will impact the course of these legal proceedings.

Regarding liability

As expected, the decree underlines the fact that the general rules of judicial and administrative proceedings will apply with regard to the relevant court (civil or administrative courts, new article R. 1143-1 of the French Public Health Code).

In addition to the fact that healthcare user associations can bring class action proceedings themselves, the decree provides that these associations may be assisted by counsel, or more surprisingly, by court bailiffs, whose role, apart from issuing acts and ensuring in the enforcement of decisions, has yet to be determined. Given the jurisdictional thresholds of civil courts, it seems likely that these class action lawsuits will mostly be filed with French Regional Courts (Tribunaux de Grande Instance), before which legal representation is mandatory (Regional Courts have jurisdiction for any claim exceeding €10,000).

Furthermore, the ministerial order provides that, under penalty of nullity of the action, individual cases must be expressly brought alongside the initiated class action (R.1143-2), in order to avoid a lack of representation, as seen in one of the first “consumption” class action lawsuits dismissed by the Regional Court of Paris last January.

Unfortunately, the ministerial order does not provide for any information on territorial jurisdictions of the Courts, increasing the risk of forum shopping. It may have been the case that, in line with the provisions for complex and technical matters (patents, certain competition litigation), only a few courts would be competent to litigate on class action lawsuits in health-related matters, the complexity of which is not difficult to imagine.

The ministerial order, as well as law no. 2016-41, both provide the judge with complete latitude with regard to the time period in which public statement measures must be implemented: no further clarification has yet been made.

However, the ministerial order does mention the information to be listed in the public statement, in addition to the information given by the Court’s decision: procedural aspects of the decision, contact details of individuals who healthcare users may address as well as the form, content and timing given to the healthcare user to contact said individual, notification that the healthcare user may still bring legal proceedings for compensation individually, and, in the event that the healthcare user joins the class action lawsuit, the user may not file an individual claim for damages already compensated by the class action lawsuit but such user may still file a claim for other damages, and, finally, that such user may produce any relevant document to support their claim.

Following the government’s intentions to expedite proceedings for health-related matters before the courts, the proceedings described in article 905 of the French Code of Civil Procedure, usually faster and limited to urgent and evident matters, will apply to appeal proceedings.

Mediation

As expected, the ministerial order describes the mediation process, a crucial aspect in health-related class action lawsuit proceedings.

Therefore, the mediation committee, which is composed of at least nine individuals, can assist the mediator appointed by the judge (art. L.1143-7 of the French Public Health Code). In addition to the mediator presiding the Committee, two healthcare professionals (legal experts, or registered doctors with relevant qualifications in the matter at hand), an individual with relevant qualifications with regard to personal injury claims, two qualified medical practitioners for the particular condition: one nominated by the claimant and the other by the defendant, a health liability insurance representative, an L'Office National d'Indemnisation des Accidents Médicaux (ONIAM) representative, and a representative from the French public healthcare system will be appointed.

Even though the composition of the mediation committee is provided for by the ministerial order, the mediator is competent for orchestrating the functioning of said committee. The ministerial order states that “the mediator will set the committee’s means of operating”.

Implementation of judgments and individual compensation of damages

The ministerial order provides for giving health-care users two options: health-care users can request compensation either from the claimant association, or from the defendant. If the user requests damages to be paid by the defendant, the user must then inform the association. This option may result in challenges in practice: what would happen if a claimant requests compensation simultaneously from the association and from the defendant, and fails to warn both intended parties?

Articles R.1143-10 to R.1143-13 provide for the conditions according to which the association may act with regard to the mandates given by the health-care users. In particular, in the event that the association does not act through a lawyer’s CARPA account because it is not represented, then the association will have to open a specific account to the benefit of the health-care users with the French Deposit and Consignment Office. In line with provisions for the handling of funds by lawyers, the intention of the ministerial order’s authors is to ensure the representation of funds that may have been received.