Abstract
In a society where the issues of health are prominent, the doctor-patient bond is now desecrated as the load of responsibility bearing on the activity of medical practitioners has not stopped growing these last decades.Exercising within a complex and technical social order that puts a principle of intangibility on the human body, simultaneously purpose and object of medical practice, the penal responsibility of medical practitioners may be engaged even if the penal fault was non intentional.Yet, in spite of the particularism of the medical activity, and whilst we could fear a phenomenon of judicialisation which could lead medical practitioners to be more often in the forefront of the repressive judicial system, the penal responsibility of the medical practitioner who has committed a non-deliberate fault is engaged according to common rules and the principle of a non-deliberate guilt that represents an exception in criminal law.In terms of penal responsibility, not only do we look for someone responsible of a fault, but also the culprit guilty of a crime or an offence.This observation raises the question: does a medical practitioner, pursued on the basis of a non-deliberate médical fault leading to the death or injury of his / her patient, have the faculty to foresee the judicial consequences and to effectively organise his / her defence.The study of this issue highlights an insufficient text, interpretative by nature, based on a non-deliberate guilt in which the moral element, theoretically necessary to fully characterise the offence, is a legal fiction.De facto, one can therefore query the very essence of guilt in case of a non-intentional offence.Thus, fragile in its principle and questionable in its wording, common criminal law relative to a non-deliberate fault has led to an exorbitant responsibility placed upon medical practitioners.Research has put forward evidence of a contingent of praetorian law with components of non-deliberate faults, and notably the causal components through a jurisprudential approach which is not only pro-active and creative but also liberated from the text.The analysis also reveals an apprehension of the penal medical fault which would depend on the medical expertise, substantially legitimate, but considered illegitimate from the criminal proceedings point of view as it is deemed insufficiently contradictory.These two characteristics of the judicial apprehension of the medical penal fault could allow us the possibility to envisage a legal evolution.