Standardising compensation

Personalised evaluation and judicial standardisation, 2015

After recognising the plaintiff as a DES victim, the judge proceeds to recognise the harm suffered by the plaintiff and the relatives who also suffered due to his or her exposure; the latter are known as “indirect victims”. Each plaintiff thus represents a micro-group of potential victims, the judge being free to include or exclude them on the list of individuals to be compensated. Since, as in a number of other medical liability suits, the damages caused by DES usually involve sexual and reproductive functions, spouses are automatically recognised as indirect victims. The children and parents of the original victim are likewise often included. However, in the case of DES specifically, judges also recognised the suffering of the women who had consumed the drug. They were simultaneously seen as direct and indirect victims, given that “they endured massive guilt at having taken during pregnancy a drug that was supposed to help them give birth, but which 30 years later was revealed to cause serious morphological abnormalities in their offspring that would hinder the latter’s ability to conceive.” Following a similar kind of logic, since 2010 the courts have designated DES grandchildren as the victims of “cascading” harm. In these kinds of cases, a victim’s grandmother ingested DES, and in turn his/her mother suffered from various gynaecological afflictions that directly caused the victim’s highly premature birth (and in some cases, serious disabilities). In this new framework, new indirect victims can be included, such as brothers and sisters. All of these victims may see different kinds of harm recognised, following the long tradition of normalising compensation for bodily harm, as has occurred for victims of workplace accidents, motor vehicle accidents and terrorist attacks, as well as for “ordinary” civil victims. The amount of compensation is left entirely up to individual judges, but since the middle of the 2000s, the latter have begun to rely on another standardisation mechanism.

In fact, in the context of a broader move to “harmonise” legal instruments, the judges involved in DES cases have systematically used the “Dintilhac” nomenclature, a non-binding legal instrument composed of 27 distinct classifications developed in 2005. Lawyers established this system of codification following their exchanges with victims. It is then up to the individual judge to determine which classifications merit compensation. For example, considering the case of Nadine, a DES daughter who managed to have children thanks to a correct diagnosis and appropriate medical care (sick leave during all her pregnancies, cervical stitching) but still suffered from a number of afflictions (a T-shaped uterus, subfertility, premature delivery), the judge ruled:

“Sets out the damages as follows and orders the company UCB PHARMA to pay:

To [Nadine]

    • Special damages subject to payment by a third party:
      • Current medical expenses: None
      • Miscellaneous fees: 3,197.88 euros
      • Occupational impact: 5,000.00 euros
      • Permanent disability: 2,500.00 euros
    • General damages:
      • Temporary disability: 13,875.00 euros
      • Pain and suffering: 15,000.00 euros
      • Permanent physical disfigurement: Denied
      • Sexual impairment: 800.00 euros
      • Emotional distress: Denied
      • Anxiety: 1,000.00 euros

To [her husband]

      • Non-material damages: 8,000.00 euros
      • Dismissal of his claim for loss of consortium
      • Dismissal also of his claim for sexual and reproductive impairment

To [her mother]

      • Non-material damages: 10,500.00 euros”

In addition to damages of a financial nature, which change on a case-by-case basis, case law has also elaborated a typology of redressable personal injuries. Clear-cell adenocarcinoma victims have almost all filed claims for pain and suffering, lowered quality of life, disfigurement (often due to the scars lefts by numerous operations) and sexual impairment. Victims of infertility have almost all filed claims for pain and suffering, as well as sexual impairment (or reproductive impairment, depending on when the lawsuit was filed). In the gravest cases, victims were compensated for lowered quality of life and even emotional distress, with amounts reaching several tens of thousands of euros. As for indirect victims, they were systematically compensated for non-material (moral) damages, with the amount of compensation generally hovering around several thousand euros.

In the earliest cases, pharmaceutical companies were forced to pay significant total sums, with social welfare agencies potentially recovering a portion of the money. As harm is divided up into many different classifications, each type of harm may receive minimal compensation. As a result, compensation amounts are often criticised, either because the amounts seem insufficient in light of the suffering endured, or because they are incommensurate with the loss suffered, for example emotional distress with regard to one’s loss of opportunity to build a family. Véronique explains:

“I lost four babies […], at the beginning I didn’t want any money. I told my lawyer: that money would be disgusting to me.”

As compensation threatens to lose its meaning, judges use the existing classifications as a tool for collective equity. Even though they lack a unified binding framework, like the compensation funds used by public authorities in other public health affairs, these civil proceedings ultimately produced a relatively standardised set of reparations for small groups of victims. Nonetheless, judges always base their reasoning on the unique characteristics of each case.

Finally, in 2007 and 2008, the Versailles court of appeals recognised specific exposure damages for five women whose physical impairments, though medically documented, were not attributable to DES according to the judge. The mere fact of knowing that one is a “DES daughter” has become a source of emotional distress, especially in cases of infertility. Much like when the Court of Cassation recognised a specific principle of exposure for asbestos victims in May 2010, these rulings legitimised a sui generis victim status.

References

  • Abstract from “From Individual Redress to the Development of a Collective Cause: The Legal Mobilisation of Victims of DES”, Revue française de science politique (English Edition), Pages 583 – 607, 2015/4.
  • Image credit North East Law Review.
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