Civil Liability Issues

1. Civil Liability Issues Chapter 7

2. Objectives • Define • Intentional torts of battery, assault, false imprisonment, intentional infliction of severe emotional distress, trespass, trespass to chattels, conversion, and misrepresentation

3. Objectives • 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.

4. 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.

5. Objectives • Explain the difference between slander, slander per se, and libel. • Identify the four invasion-of-privacy torts.

6. 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

7. Three Basic Types of Torts • Intentional • Negligence • Strict liability

8. 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

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

10. 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

11. 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

12. 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

13. Assault • Placing another in fear or apprehension of an imminent battery • Damages are presumed

14. 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

15. False Imprisonment • Restraint • Physical barriers • Threats of force • Assertion of legal authority • Restraint need only be momentary • Person must be aware of restraint

16. 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

17. Intentional Infliction of Severe Emotional Distress • Typically involves outrageous hazing or a continuous pattern of conduct directed at a person • Telephone calls, hate mail, threats • Single action will suffice

18. Trespass • Intentional entry onto land of another without consent • Trespasser is liable for any damages • Intentional, careless, or accidental fires

19. Trespass • 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

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

21. Conversion • Unauthorized taking of personal property • Allows civil recovery of damages for property that is stolen, embezzled, destroyed, or damaged severely

22. Misrepresentation (Fraud) • Misrepresentation or deceit • False representation of material fact • Made with intent to induce victim to rely thereon, resulting in damages

23. Bad Faith • New tort • Arose out of insurance contract law • Intentional failure to comply with terms of a contract (usually insurance)

24. Defamation • Damage to another person’s reputation • False, harmful, and unprivileged statements • Two types • Slander = oral • Libel = written • Both require publication

25. 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”

26. Libel • Written or printed falsehoods • Damages are presumed • Even in absence of actual monetary loss • At common law • Libel was a crime

27. Defenses to Defamation • Truth • An absolute defense to defamation • Privilege • Defamation of a public figure requires actual malice

28. Invasion of Privacy • Four distinct torts • Unreasonable intrusion on seclusion • Appropriation of another’s name or likeness • Unreasonable publicity • Publicity placing another in a false light

29. Invasion of Privacy • 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

30. 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

31. Summary • Definition of a tort • Battery • Assault • False imprisonment • Consent

32. Summary • Intentional infliction of severe emotional distress • Trespass • Trespass to chattels • Conversion

33. Summary • Fraud • Bad faith • Defamation • Invasion of privacy