civil liability issues

Civil Liability Issues

Chapter 7

Copyright © 2007 Thomson Delmar Learning

Objectives

• Define– Intentional torts of battery, assault, false

imprisonment, intentional infliction of severe emotional distress, trespass, trespass to chattels, conversion, and misrepresentation


• Explain how consent is a defense to battery, assault, and false imprisonment.

• Define implied and informed consent.• Explain that a competent adult has an absolute right

to decline medical care.

Objectives


• Identify factors involved in determining if a person lacks capacity to consent to, or decline, medical care.

• Explain what should be done to document refusals of care against medical advice.

Objectives


• Explain the difference between slander, slander per se, and libel.

• Identify the four invasion-of-privacy torts.

Objectives


Civil Liability

• Tort – A “civil wrong”

• Definition– Committed by one or more parties that cause

injury to another• Law allows a remedy of monetary damages


Three Basic Types of Torts

1. Intentional2. Negligence3. Strict liability


Battery

• Battery is an intentional unpermitted contact with another person

• Includes a broad range of acts• Does not require hostile intent• Damages are presumed plus defendant is liable for

any actual damages


Consent

• Defense to a battery• Voluntary and knowingly given• Person must have capacity to consent– Critical consideration for emergency responders


Battery by Medical Personnel

• Treatment provided against a person’s will• Exceeds consent granted by patient• If consent is obtained through fraud

– Doctor not licensed – Medical procedure is a sham– Without informed consent


Informed Consent

• Patient must be informed of what the procedure involves and possible risks

• Lesser requirement in prehospital environment• Patient still must consent

– Consent can be implied from lack of refusal


Implied Consent

• Treatment rendered to person unable to consent• Provider must have no reason to believe treatment

would be declined• Treatment necessary to save life and limb


Assault

• Placing another in fear or apprehension of an imminent battery

• Damages are presumed


False Imprisonment

• Unlawfully restraining free movement of another against that person’s will

• Does not require imprisonment• Restraint must be complete• Once proven, damages are presumed and actual

damages are also allowed


• Restraint – Physical barriers– Threats of force– Assertion of legal authority

• Restraint need only be momentary• Person must be aware of restraint

False Imprisonment


Intentional Infliction of Severe Emotional Distress

• Intentional or reckless conduct that may cause severe emotional distress to another

• Must be more than simple joking or teasing– Beyond bounds of decency


• Typically involves outrageous hazing or a continuous pattern of conduct directed at a person

• Telephone calls, hate mail, threats• Single action will suffice

Intentional Infliction of Severe Emotional Distress


Trespass

• Intentional entry onto land of another without consent

• Trespasser is liable for any damages– Intentional, careless, or accidental fires


• First criterion– Someone who enters the land of another without

permission• Second criterion

– Someone who enters land of another after having been warned not to

Trespass


Trespass Examples

• Dumping rubbish on someone’s property• Flying a model airplane over someone’s house• Building a fence on a neighbor’s property


Conversion

• Unauthorized taking of personal property• Allows civil recovery of damages for property that is

stolen, embezzled, destroyed, or damaged severely


Misrepresentation (Fraud)

• Misrepresentation or deceit• False representation of material fact • Made with intent to induce victim to rely thereon,

resulting in damages


Bad Faith

• New tort• Arose out of insurance contract law• Intentional failure to comply with terms of a contract

(usually insurance)


Defamation

• Damage to another person’s reputation– False, harmful, and unprivileged statements

• Two types– Slander = oral– Libel = written

• Both require publication


Slander

• False spoken word or gesture• Generally must prove monetary loss

– Monetary loss = special damages– Lost business, lost wages, psychiatrist bills, etc.

• Exception– “Slander per se”


Libel

• Written or printed falsehoods• Damages are presumed

– Even in absence of actual monetary loss• At common law

– Libel was a crime


Defenses to Defamation

• Truth– An absolute defense to defamation

• Privilege• Defamation of a public figure requires actual malice


Invasion of Privacy

• Four distinct torts 1. Unreasonable intrusion on seclusion2. Appropriation of another’s name or likeness3. Unreasonable publicity 4. Publicity placing another in a false light


• Damages for invasions of privacy may include amounts for: – Resulting illness – Harm to victim’s business interests– Profits that the perpetrator may have recognized

from his or her misconduct

Invasion of Privacy


• Damages may be presumed for affront to person’s dignity– Similar to other intentional torts such as battery,

assault, and false imprisonment

Invasion of Privacy


Summary

• Definition of a tort• Battery• Assault• False imprisonment• Consent


• Intentional infliction of severe emotional distress • Trespass• Trespass to chattels• Conversion

Summary


• Fraud• Bad faith• Defamation• Invasion of privacy

Summary

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