Contract or Intentional Tort

Contracts & Intentional Torts Healthcare Law: Class 4

• Elements • Defenses

Terms/Definition

• Liability: legal responsibility for one’s acts or omissions

• Cause of action: the basis of a law suit. Sufficient legal grounds and alleged fact that, if proven, would constitute all the requirements for the plaintiff to prevail

• Legal duty: he responsibility to others to act according to the law; may be imposed by constitution, legislation, common law, or contract

• Affidavit: written statement confirmed by oath or affirmation, for use as evidence, but NOT in place of in-court testimony

• Statute of Limitations: Any law that bars claims after a certain period of time passes after an injury. The period of time varies depending on the jurisdiction and the type of claim.

1. Offer

2. Acceptance

3. Consideration* must be given

4. Legality

Elements of a Contract

*act of each party exchanging something of value to their detriment

1. Offer

2. Acceptance

3. Consideration* must be given • Something of value must be given & received • $$, work, doing or NOT doing something

4. Legality • Purpose of the contract must be legal • Parties must be competent • Certain contracts must be in writing (property, contracts that cannot be performed in less than a year, contracts that guarantee the debt of another person

Elements of a Contract

“Meeting of the Minds”

*act of each party exchanging something of value to their detriment

Express vs. Implied Contract

• Express = written and/or spoken • Implied = based on facts & circumstances

i.e. ordering food at a restaurant patient makes appointment with MD

Physician-Patient Relationship: Circumstances

• Does a physician need to come into direct contact with the patient?

• A physician is hired by ABC corporation to examine a patient for a pre-employment physical. To whom does the physician have a legal duty?

Workers’ Compensation

• General rule: Workers’ Comp is an employee’s exclusive legal remedy for a workplace injury or illness

• Employees cannot make negligence or other legal claims against their employers

• DUAL CAPACITY DOCTRINE EXCEPTION: when an employer operates as both an employer AND a health care provider, in some states, such as OH and CA

Physician-Patient Relationship: Scope of Duty Physician:

• agrees to diagnose and treat patient consistent with the standard of acceptable medical practice until the “natural termination” of the relationship

• agrees not to abandon the patient • does not agree to CURE the patient • May be relieved of liability if the patient does not follow orders • Express promises can be viewed as a warranty • Has a duty to report diseases determined to be “reportable” by the state and/or federal government (i.e. STDs, HIV, seizure disorder, risk of harm/death, threatened by patient)

Patient:

• agrees to pay, or have insurance pay, for services • does not have to agree (legally) to follow the orders of the doctor [vs. insurance]

Physician-Patient Relationship: Termination

• When patient is cured or dies • Physician and patient mutually agree • Patient dismisses the physician • Physician withdraws from the contract

Physician abandonment of patient

Abandonment may be express or implied:

• Express: physician notifies patient s/he’s withdrawing from the case, but doesn’t give patient enough time to secure alternative care. • Implied: physician’s actions are consistent with abandonment

If abandoned, the patient may have a claim against the physician for: • Breach of contract • Intentional tort • Negligence • If patient does not follow the physician’s orders, physician may not be able to be held liable for abandonment

Physician Liability: Breach of contract

• Physician agrees to provide a service (i.e. delivery of a baby) but is not available when the patient goes into labor. A resident delivers and injures the patient. Patient has a negligence claim against the resident and a breach of contract case against the physician.

• Physician provides a different service/procedure than what s/he promised. (i.e. NVD versus C- Section)

Physician Liability: Breach of Warranty

• Warranty in medicine àphysician promises their treatment will yield a certain result • Plastic surgeon promises that the procedure would “enhance [patient’s] beauty and improve her appearance”.....surgery was not successful and after 2 more procedures, the nose looked worse. • Guilmet v. Campbell: MDs told patient, “once you have an operation it takes care of all your troubles. We are specialists. There’s nothing to it at all....after the operation, you can throw away your pills and doctor visits...weigh that cost against an operation.”

• Patients esophagus ruptured during the procedure and her developed numerous complications. Court found MDs not negligent, but guilty of Breach of Warranty

Intentional Torts (tort = wrong)

• Civil wrong, not based on a contract, that results in injury** to the plaintiff or harm to their reputation • Occurs when the defendant acts intentionally and knows or desires the consequences of his/her act • Assault • Battery • Defamation • False Imprisonment • Invasion of Privacy & Breach of Confidentiality • Misrepresentation

• Other types of torts (negligence and strict liability) are addressed next week

**not necessarily physical injury

https://www.youtube.com/watch?v=A4vlk8u12OE

Assault & Battery

• Assault: Conduct that places a person in apprehension of being touched in a way that is insulting, provoking, or physically harmful • Battery: The intentional causation of harmful or offensive contact with another's person without that person's consent. • 3 types in medicine: • No consent for the touching (Informed consent) • Physician exceeded the scope of the consent • Consent was “uninformed”

Health Systems: preventing assault and battery allegations

• Obtain written consent from a patient before initiating any procedures. • For basic treatments, simply ask the patient if you can take his blood pressure, change his bandage, administer his medications, etc.

• If a patient refuses treatment and there is no threat to his life or well- being, do not force treatment, notify those who need to be notified, and document the refusal and the notifications;

• Never threaten a patient or a family member in any way or act in a menacing manner toward the patient or family member;

• Never hold a patient down to force treatment or administer a medication;

• Never threaten to hit a patient or family member or actually do so; and • Never make sexual advances toward a patient or a family member.

Defamation

• Wrongful injury to another person’s reputation via a statement to a third party • Libel = written defamation • Slander = spoken defamation

• Defenses • Statement was true • Statement was made in good faith to protect private interest of the patient, physician or third party

1st Amendment Restrictions to Defamation Claims • U.S. Supreme Court case of New York Times Co. v. Sullivan, 376 U.S. 254, (1964) established the

standard that for a public official to recover damages for defamation, there must be “actual malice” on the part of the defendant requiring the information be false or that the defendant acted with reckless disregard for the truth.

• Mr. Sullivan, Montgomery Alabama police, sued the New York Times for a full-page advertisement they published titled “Heed Their Rising Voices” that was paid for by the Committee to Defend Martin Luther King and Struggle for Freedom in the South.

• The advertisement contained several inaccurate accusations against the police that were defamatory.

• While the plaintiff in an Alabama state court, the Supreme Court in a 9-0 decision, held that public officials can not sue news publications for libel unless the plaintiff could prove actual malice in the false reporting of a news story.

• The Court found that the Alabama court failed to protect the First Amendment rights of freedom of speech and of the press.

• The Court ruled that the First Amendment protects the publication of all statements about public officials, even those found to be false, unless the statements are made with actual malice.

False Imprisonment

• Unlawful restriction of a person’s freedom • In medicine à patients held involuntarily in a mental hospital

Invasion of privacy and breach of confidentiality

• Invasion of privacy: patient is subjected to unwanted publicity • Before and After photos of a patient’s cosmetic surgery

• Breach of confidentiality: unwanted disclosure of confidential information • Patient’s health information (Also protected by HIPAA)

Invasion of Privacy Elements:

1. Defendant intruded into the plaintiff's private affairs, seclusion or solitude.

2. The intrusion would be objectionable to a reasonable person

Breach of Confidentiality Elements:

1. Defendant had a duty not to misuse the confidential information

2. Defendant breached that duty by misusing confidences The breach caused the plaintiff to suffer an injury.

DEFENDANT: “I never sold the information or told anyone about it.” ATTORNEY: “They are charging you with simply accessing identifiable health information without a valid reason for doing so. You were not treating any of those patients.”

Dr. H was sentenced to four months in prison, a year of supervised release, and a $2,000 fine.

Misrepresentation

• Plaintiff must show that a fact was falsely represented and that he based decisions on the misrepresentation. • Misrepresentation to persuade a patient to submit to treatment • Misrepresentation of a prior treatment or its results

• Misrepresentation sometimes allows a patient to bring suit after the statute of limitations expires

Action/Legal concept Definition

Contract Offer & Acceptance, meeting of the minds, consideration given & received, contract is legal

Workers’ Compensation Employee’s exclusive remedy for workplace injury, bars other claims unless defendant is employer AND healthcare provider

Breach of Contract MD agrees to provide a service but does not or provides a different service

Breach of Warranty MD promised treatment to yield a certain result and it does not

Intentional Tort Defendant must ”intend” to act; no actual injury is necessary

Assault Plaintiff is intentionally placed in apprehension of being touched

Battery Defendant intentionally caused harmful contact with plaintiff without their consent

Libel Written injury to plaintiff’s reputation. Truth is a valid defense

Slander Spoken injury to plaintiff’s reputation. Truth is a valid defense.

False Imprisonment Unlawful restriction of a person’s freedom

Invasion of Privacy Plaintiff is subjected to unwanted publicity

Breach of Confidentiality Unwanted disclosure of confidential information

In class project

• Plaintiff and Defendant? • Which court heard the case? • What is the cause of action? • What was the defense? • What was the finding?