Public Health Law Map - Beta 5 - Medical and Public Health Law Site

Traffic violations are a common instance of negligence per se. Assume that a driver
hits a child while driving at night without headlights. This behavior is illegal; it is
prohibited to prevent this type of accident, and the plaintiff is in the class of persons
who were intended to be protected. The driver could be found negligent based on
the violation of the statute. Conversely, assume that a physician injures a patient
while practicing without a current medical license. This alone will not support a
negligence per se claim because medical licensing laws are not intended to protect
specific patients from medical malpractice.
The most common prosecutions of physicians for practice-related crimes involve
tax and other economic fraud laws. These will not support negligence per se claims
in medical malpractice cases because the laws are not intended to prevent patient
injuries. Negligence per se claims are a threat to physicians who disregard laws
intended to protect patients, such as the federal provisions on patient dumping and
state laws requiring physicians to provide emergency care. Since these laws make it
illegal to deny a person necessary emergency medical care, a person refused
emergency care suffers the injury the law was intended to prevent. Negligence per
se claims also could be brought against physicians who do not obey disease control
regulations and laws requiring the reporting of dangerous individuals.
d) Intentional Torts
Intentional torts are intentional actions that result in harm to the plaintiff. The harm
need not be intended, but the act must be intentional, not merely careless or
reckless. Most intentional torts are also crimes. The classic intentional tort in
medical practice is forcing unwanted medical care on a patient. The care may
benefit the patient, but if it was refused and the physician has no state mandate to
force care on the patient, the patient may sue for the intentional tort of battery.
The most common intentional tort is battery. The legal standard for a battery is “an
intentional, unconsented harmful or offensive touching.” (Batteries such as
shootings, stabbings, and beatings are also criminal law violations.) Although
battery is commonly linked with assault, an assault is the act of putting a person in
fear of bodily harm. Battery occurs only if there is an actual physical contact. The
law of battery has been tailored to the problems of living in a crowded society. Not
every unconsented touching is a battery—only those that are intended. Even among
intentional unconsented touchings, the courts will allow recovery only for those that
a reasonable person would find offensive. Thus, neither bumping into a person on a
bus nor grabbing a person to prevent him or her from falling is a battery. In
contrast, an unwanted kiss is a battery, though it does not cause any physical
injury.
Most battery claims against medical care providers are based on real attacks, not
technical violations of informed consent rules. One case involved a patient who
became pregnant while having an affair with her physician. [Collins v. Thakkart,
552 N.E.2d 507 (Ind. Ct. App. 1990).] When she allowed the physician to examine
her to confirm the pregnancy, he repeatedly forced a metal instrument into her
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