1. Civil Liability Issues Chapter 7

2. 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

3. Copyright © 2007 Thomson Delmar Learning 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

4. Copyright © 2007 Thomson Delmar Learning 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

5. Copyright © 2007 Thomson Delmar Learning Explain the difference between slander, slander per se, and libel. Identify the four invasion-of-privacy torts. Objectives

6. Copyright © 2007 Thomson Delmar Learning 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. Copyright © 2007 Thomson Delmar Learning Three Basic Types of Torts 1.Intentional 2.Negligence 3.Strict liability

8. Copyright © 2007 Thomson Delmar Learning 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. Copyright © 2007 Thomson Delmar Learning Consent Defense to a battery Voluntary and knowingly given Person must have capacity to consent –Critical consideration for emergency responders

10. Copyright © 2007 Thomson Delmar Learning 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. Copyright © 2007 Thomson Delmar Learning 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. Copyright © 2007 Thomson Delmar Learning 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. Copyright © 2007 Thomson Delmar Learning Assault Placing another in fear or apprehension of an imminent battery Damages are presumed

14. Copyright © 2007 Thomson Delmar Learning 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. Copyright © 2007 Thomson Delmar Learning Restraint –Physical barriers –Threats of force –Assertion of legal authority Restraint need only be momentary Person must be aware of restraint False Imprisonment

16. Copyright © 2007 Thomson Delmar Learning 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. Copyright © 2007 Thomson Delmar Learning 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

18. Copyright © 2007 Thomson Delmar Learning Trespass Intentional entry onto land of another without consent Trespasser is liable for any damages –Intentional, careless, or accidental fires

19. Copyright © 2007 Thomson Delmar Learning 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

20. Copyright © 2007 Thomson Delmar Learning 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. Copyright © 2007 Thomson Delmar Learning Conversion Unauthorized taking of personal property Allows civil recovery of damages for property that is stolen, embezzled, destroyed, or damaged severely

22. Copyright © 2007 Thomson Delmar Learning Misrepresentation (Fraud) Misrepresentation or deceit False representation of material fact Made with intent to induce victim to rely thereon, resulting in damages

23. Copyright © 2007 Thomson Delmar Learning Bad Faith New tort Arose out of insurance contract law Intentional failure to comply with terms of a contract (usually insurance)

24. Copyright © 2007 Thomson Delmar Learning Defamation Damage to another person’s reputation –False, harmful, and unprivileged statements Two types –Slander = oral –Libel = written Both require publication

25. Copyright © 2007 Thomson Delmar Learning 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. Copyright © 2007 Thomson Delmar Learning Libel Written or printed falsehoods Damages are presumed –Even in absence of actual monetary loss At common law –Libel was a crime

27. Copyright © 2007 Thomson Delmar Learning Defenses to Defamation Truth –An absolute defense to defamation Privilege Defamation of a public figure requires actual malice

28. Copyright © 2007 Thomson Delmar Learning Invasion of Privacy Four distinct torts 1.Unreasonable intrusion on seclusion 2.Appropriation of another’s name or likeness 3.Unreasonable publicity 4.Publicity placing another in a false light

29. Copyright © 2007 Thomson Delmar Learning 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

30. Copyright © 2007 Thomson Delmar Learning 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

31. Copyright © 2007 Thomson Delmar Learning Summary Definition of a tort Battery Assault False imprisonment Consent

32. Copyright © 2007 Thomson Delmar Learning Intentional infliction of severe emotional distress Trespass Trespass to chattels Conversion Summary

33. Copyright © 2007 Thomson Delmar Learning Fraud Bad faith Defamation Invasion of privacy Summary

34. Negligence Chapter 8

35. Copyright © 2007 Thomson Delmar Learning Objectives Define and identify elements of negligence. Explain concepts: –Duty –Standard of care –Breach –Damages and proximate cause

36. Copyright © 2007 Thomson Delmar Learning Explain what the standard of care is for professionals and those with specialized training. Identify types of evidence that can be used to establish the standard of care for a professional. Objectives

37. Copyright © 2007 Thomson Delmar Learning Explain defenses to negligence: –Assumption of risk –Contributory negligence –Comparative negligence –Last clear chance doctrine –Rescue doctrine Objectives

38. Copyright © 2007 Thomson Delmar Learning Explain Fireman’s Rule. Define gross negligence and recklessness. Explain joint and several liability. Identify common types of activities for which strict liability is imposed. Objectives

39. Copyright © 2007 Thomson Delmar Learning Negligence Many definitions exist Our definition –Failure to exercise the care that the reasonably prudent person would have exercised under the circumstances, which causes damages to another

40. Copyright © 2007 Thomson Delmar Learning Elements of Negligence Three elements 1.Act/omission 2.Causing damages to another 3.Breach of the standard of care

41. Copyright © 2007 Thomson Delmar Learning Act –Doing an affirmative act Driving a car Performing CPR Extinguishing a fire

42. Copyright © 2007 Thomson Delmar Learning Omission –Failure to do something you are legally required to do –Concept of legal duty At common law –No duty to act even if someone is in trouble

43. Copyright © 2007 Thomson Delmar Learning Damages –Personal injury, property damage, or money lost Damages do not include: –Hurt feelings or being wronged in principle

44. Copyright © 2007 Thomson Delmar Learning Causation Damages must be caused by defendant’s negligence –Proximate cause = legal cause –Requires more than “but for” cause

45. Copyright © 2007 Thomson Delmar Learning Breach of the Standard of Care Act or omission must have failed to live up to the reasonably prudent person standard Standard of care Who or what is the reasonably prudent person?

46. Copyright © 2007 Thomson Delmar Learning Reasonably Prudent Person An imaginary common person who is very careful –"When a person, acting in a given set of circumstances, fails to exercise that degree of care for the safety of another which a reasonably prudent person would have exercised in the same or similar circumstances, said person is said to be negligent.“ Rhode Island Supreme Court

47. Copyright © 2007 Thomson Delmar Learning Standard works for normal daily activities that all people are familiar with –Driving a car –Cooking a meal Reasonably Prudent Person

48. Copyright © 2007 Thomson Delmar Learning Reasonably Prudent Professional Reasonably prudent professional standard –To evaluate those with special knowledge or expertise –Standard of care expected of someone with professional qualifications

49. Copyright © 2007 Thomson Delmar Learning Standard of care is a question of fact for the jury Evidence of standard of care comes from –Expert witnesses –Laws and regulations –Industrywide standards Reasonably Prudent Professional

50. Copyright © 2007 Thomson Delmar Learning Fire Service Negligence Cases Kenavan v. New York McGuckin v. Chicago Harry Stroller v. City of Lowell

51. Copyright © 2007 Thomson Delmar Learning Emergency Medical Care and Negligence Consent to treat, battery, and negligence Patient abandonment

52. Copyright © 2007 Thomson Delmar Learning Defenses to Negligence Contributory negligence Assumption of the risk Comparative negligence Last clear chance Rescue doctrine

53. Copyright © 2007 Thomson Delmar Learning Fireman’s Rule An exception to the rescue doctrine Bars suits by firefighters and police officers for injuries sustained at emergencies –States have differing applications

54. Copyright © 2007 Thomson Delmar Learning Fireman’s Rule Modern Limitations Injured firefighters may sue if: –Defendant intentionally set fire –Owner or tenant was reckless or grossly negligent in starting fire –Occupant failed to warn FFs of a dangerous condition

55. Copyright © 2007 Thomson Delmar Learning Strict Liability Liability without regard to fault Unreasonably dangerous activities Most common –Explosives –Wild and dangerous animals –Nuclear reactors

56. Copyright © 2007 Thomson Delmar Learning Even intentional conduct of others will not stop liability Economics –Damages or risk of harm must be incorporated into the price as a cost of doing business Strict Liability

57. Copyright © 2007 Thomson Delmar Learning Cost can be spread among users, as opposed to being borne solely by victims Further incentive for involved parties to exercise utmost care Strict Liability

58. Copyright © 2007 Thomson Delmar Learning Respondeat Superior Employer is liable for acts of employee committed within scope of employment Respondeat superior does not require negligence by employer Employee wrongdoing must be within scope of employment

59. Copyright © 2007 Thomson Delmar Learning Joint Liability If the negligence of two or more parties causes damages to a plaintiff Each is liable to plaintiff for 100 percent of damages –Defendants can later recover from each other a pro-rata share based upon fault

60. Copyright © 2007 Thomson Delmar Learning Summary Definition of negligence Defenses to negligence Fireman’s Rule Gross negligence and recklessness

61. Copyright © 2007 Thomson Delmar Learning Strict liability Respondeat superior Joint and several liability Summary