intentional tort in healthcare cases

The harm need not be intended, but the act must be intentional, not merely careless or reckless. With damage caps, time limitations, and procedural requirements that make medical malpractice claims difficult to pursue at best, it has also made it practically impossible for attorneys to pursue these cases in some states. 679, 680(1), 466 S.E.2d 627 (1995). See In re Jane Doe, supra, 262 Ga. at 393(2)(b), 418 S.E.2d 3;  McAfee, supra, 259 Ga. at 581(1), 385 S.E.2d 651;  In re L.H.R., supra, 253 Ga. at 446, 321 S.E.2d 716. The form was also required to be forwarded to the risk management department within 72 hours of the incident. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Center, 253 Mich.App. See Velez, supra, 219 Ga.App. Given our holding in Division 1, supra, that the withdrawal of Ella's life support did not constitute an intentional tort, we need not address this issue further. A07A2224, we affirm the trial court's denial of Dr. Jose's and his employer's motion for summary judgment on the issue of whether Dr. Jose owed Ella a duty of care at the time of her initial injury. We thus find that under these specific circumstances neither Dr. Jose nor Scottish Rite committed an intentional tort under Georgia law in withdrawing Ella's life support. Home > Medical Reference and Training Manuals > > Lesson 4: Section I. For example, in Morton v. Wellstar Health System,13 the executrix of her mother's estate sought punitive damages and attorney fees, alleging an intentional tort in Wellstar's feeding of scrambled eggs to her mother, consistent with the physician's orders and the patient's consent. To establish such fraud in a medical context, a plaintiff “must produce evidence showing a willful misrepresentation of a material fact, made to induce the plaintiff to act, upon which the plaintiff acts to his injury.”   (Punctuation omitted.) Simon Griffin. Based on this consensus, both plaintiffs expressed their desire to withdraw Ella's life support and signed a form provided by Scottish Rite, in which they specifically consented to withdraw life sustaining procedures or interventions, including the withdrawal of hydration and nutrition. “The standard of review of the trial court's ruling on discovery disputes is abuse of discretion.”  Hickey v. Kostas Chiropractic Clinics.22  Bearing this standard of review in mind, the peer review privilege afforded to certain proceedings and documents is codified in OCGA § 31-7-133(a), which provides in part: Except in proceedings alleging violation of this article, the proceedings and records of a review organization shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action;  and no person who was in attendance at a meeting of such organization shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings or activities of such organization or as to any findings, recommendations, evaluations, opinions, or other actions of such organization or any members thereof. Indeed, all of the physicians who actually evaluated Ella agreed with this assessment (and even plaintiffs' own expert conceded that this prognosis was more than likely correct). However, we affirm the trial court's order requiring Scottish Rite to produce the nonparty patient medical records in accordance with the trial court's orders outlining the scope of that production. 2. See Williams, supra, 194 Ga.App. Conversion – the act of someone taking another person’s property and converting it to his own use. For more information on assault-medical malpractice issues see the page on Wikipedia. A07A2223, Scottish Rite appeals the trial court's ruling that plaintiffs' intentional tort claim is not barred by the statute of limitation and Dr. Jose and Neonatalogy Associates, P.C. 3. A07A2222, we address plaintiffs' intentional tort allegations of unlawful withdrawal of life support raised for the first time in their second amendment, filed some 17 months after the original complaint, which is the only matter raised by plaintiffs on their appeal. 19. We recommend using We’re in a brave new world, as y’all know. A number of California appellate courts have held that a health care provider's unintentional deviation from a patient's consent will support a cause of action for "technical battery"--an intentional tort. Where plaintiff’s pharmacist expert was deemed incompetent to offer necessary causation testimony against the pharmacy defendants in an HCLA suit based on his inability to rule out possible causes of death in a complex medical case, summary judgment for those defendants was affirmed. However, “speculation which raises merely a conjecture or possibility is not sufficient to create even an inference of fact for consideration on summary judgment.”  (Punctuation omitted.) A07A2224 for the reasons hereinafter outlined. A07A2224. See also Poulnott v. Surgical Assoc. The classic intentional tort in medical practice is forcing unwanted medical care on a patient. On March 24, 2000, Ussery filed the initial complaint,4 which was amended first on June 4, 2001, and again on October 24, 2001, and defendants responded. They alleged that, as Dr. Jose's employer, Neonatology Associates, P.C., is responsible for his actions in this case. Compensatory damages are those that directly repay the victim for their costs, including medical expenses, lost wages, and more. at 136, 522 S.E.2d 19. King, supra, 274 Ga.App. Id. Stay up-to-date with FindLaw's newsletter for legal professionals, USSERY v. CHILDREN HEALTHCARE OF ATLANTA INC. Plaintiffs also contend that the decision to withdraw Ella's life support amounted to an intentional tort because the two physicians with whom Dr. Jose consulted were not disinterested as allegedly required by In re L.H.R., supra, 253 Ga. at 446, 321 S.E.2d 716. However, our case law establishes clear standards for determining whether consent has been effectively withdrawn. With the growing number of cases of medical negligence, it has acquired itself attention of the lawmakers. at 302-303(1), 653 S.E.2d 756. Quiz & Worksheet Goals Indeed, plaintiffs' claim is an improper attempt to transform a possible malpractice claim into an intentional tort. A07A2224, Dr. Jose and his employer, Neonatalogy Associates, P.C., also appeal the trial court's denial of their motion for summary judgment, arguing that the court erred in ruling that a question of fact remained as to whether or not the physician-patient relationship ended when Ella transferred to another ICU. See id. Williams, supra, 194 Ga.App. If the defendant knew of the contract and then intentionally caused a party to … One case involving an unintentional tort is entitled Weiner v.Lenox Hill Hospital.In this case, the family of a man who died from AIDS sued the hospital. 5. Rather, we endorse the view that medical decision-making for incompetent patients is most often best left to the patient's family (or other designated proxy) and the medical community, and the courts remain available to decide controversial cases. at 219-220, 612 S.E.2d 7. This article focuses on describing negligence under various laws, professional negligence, medical negligence, and landmark, as well as recent cases in India. Tort cases are heard in a civil proceeding. Center v. Hawkins, 288 Ga.App. Personal medical records are protected by Georgia's constitutional right of privacy and cannot be disclosed without the consent of the patient unless their production is otherwise required by Georgia law. Auth. Karpowicz v. Hyles, 247 Ga.App. Indeed, fraud cannot be established through “expressions of opinion, unfulfilled predictions or erroneous conjecture as to future events.”   (Punctuation omitted.) As previously stated, questions as to whether the decision to remove Ella's life support was negligently made were not addressed in the parties' motions for summary judgment and therefore are not the subject of this appeal. Here, the record shows that when specifically asked as to whether plaintiffs ever withdrew their consent to the deescalation of Ella's life support, William Ussery responded that they had not. Wisconsin’s three-part strategy to stabilize medical liability climate carries the day. There are many times when a person is injured because of negligence of a doctor, nurse or other healthcare provider. 2. In personal injury cases, the injured party will attempt to receive compensation with the representation of a personal injury lawyer in … As discussed in Division 1(a), supra, the holding of In re L.H.R. 292, 297(6), 543 S.E.2d 51 (2000). Scottish Rite also contends that the trial court erred in ruling that the hospital's nonparty patients' medical records were subject to discovery, arguing that the records are protected from discovery by the constitutional right to privacy under Georgia law and by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).32  We disagree. 840, 843(1), 655 S.E.2d 823 (2007). 11. Notably, the forms on their face indicate that their purpose was for “Quality Improvement Review” as well as “Peer Review” and that they were not to be included as part of a patient's medical record. As previously stated, an intentional tort arises in the medical context when a medical professional makes unauthorized contact with a patient during treatment. Tort cases serve two basic purposes. The court denied summary judgment on this ground, which Scottish Rite appeals in Case No. Tort law is, therefore, in some cases the second best means of preventing accidents after criminal law. Intentional … Scottish Rite contends that the trial court erred in ruling that the hospital's incident reporting forms, termed “notification forms” and “occurrence reports,” were not protected by the peer review privilege and were therefore subject to discovery. Plaintiffs appeal these rulings in Case No. The executrix alleged her mother's death resulted from professional and ordinary negligence of the hospital. Because the very purpose of the peer review privilege is to protect from discovery hospital efforts at self-evaluation for improving patient care, we reverse the trial court's ruling ordering the production of these documents;  however, we affirm the order requiring the production of nonparty patient records where the patients are given notice and opportunity to object. 29. 289, 290, 378 S.E.2d 901 (1989). Here, plaintiffs served Scottish Rite with requests for production of documents, seeking nonparty patient information concerning Code Blue events for the eight-year period preceding Scottish Rite's response to the requests. This process is unlike a negligence case, where a defendant must only pay for their share of the damages. One of the most important initial steps that a victim can take in an intentional tort is mitigating their injuries. (healthcare) 200 words Torts are wrongs recognized by law as grounds for a lawsuit and they result in an injury or harm constituting the basis for a claim by the injured party. Id. The intentional tort exception is inapplicable . Often, medical malpractice cases gain notoriety, either for the persons involved in the suit, or the unusual circumstances leading up to them. Although prior judicial approval is not required, the courts remain available in the event of disagreement between the parties, any case of suspected abuse, or other appropriate instances. Google Chrome, The law of tort is based on the idea that people are liable for the consequences of their actions, whether intentional or accidental, if … Indeed, plaintiffs concede that no Georgia case law concerning these types of decisions mandates the number of physicians that must be involved or their level of interest. Contrary to plaintiffs' argument, there is no mandate under Georgia law requiring that a patient be diagnosed with a terminal condition prior to the removal of life support. 13. Accordingly, the trial court did not err in granting Scottish Rite and Dr. Jose summary judgment as to the plaintiffs' claim that they intentionally caused Ella's death. We hold that under these circumstances it did not, particularly considering the relevant case law and the evidence as to the actions taken by Scottish Rite and Dr. Jose (at the time of decision) in obtaining additional medical concurring opinions that Ella's brain damage was irreversible and that the chances were poor that she would ever regain cognitive functions (with which conclusions plaintiffs' own later-hired expert concurred). What Is a Tort? A07A2223 is whether Scottish Rite's incident reporting records, which were designed to allow the hospital's department of quality/performance improvement to make evaluations that would improve patient care, are covered by the peer review privilege and whether nonparty patient records are discoverable. We need not reach the issue of whether the two-physician requirement set forth in In re L.H. A tort is the harmful act that results in an injury and it can be either intentional or unintentional. Later that same day, physicians removed Ella's ventilator, at which point, notwithstanding her brain injury, she began breathing on her own. A07A2224. Petzelt v. Tewes.18  However, nothing in the record suggests that either Dr. Jose or Scottish Rite acted with an intention to deceive plaintiffs or that either made a wilful misrepresentation with the intention and purpose of injuring Ella. Although the exact requirements vary from state to state, the plaintiff must typically prove that the defendant harmed the plaintiff and that he or she acted intentionally in doing so. Some states require that the defendant not merely intend to commit the act that led to the harm, but that the defendant intended to harm the plaintiff. Negligence of Coffee Medical … Over the next couple of days, Dr. Jose, a physician in the intensive care unit at Scottish Rite who had assisted with Ella's care in the ICU for a few days immediately following her surgery, met with plaintiffs to update them on Ella's condition and to inform them that Ella would have to be evaluated further before any prognosis could be offered. Although the child's mother and some physicians favored removing life support, other physicians were opposed. In doing so, the Court noted that In re L.H.R. While the Advance Directive for Health Care Act (OCGA § 31-32-1 et seq.) The question before this Court in this appeal is limited to whether or not the trial court erred in granting summary judgment to Scottish Rite and Dr. Jose, holding that these defendants did not intentionally injure or cause the death of Ella. 301, 302-303(1), 653 S.E.2d 756 (2007). Id. Issue. That question should be pretermitted because, as the majority notes, the uncontroverted evidence shows that the decision to discontinue life support for Ella involved the consultation of two other nontreating physicians. Whether the tort is intentional depends solely upon the mindset of the person committing the tort (sometimes called the "tortfeasor" in legalese). Please try again. Copyright © 2020, Thomson Reuters. Britt v. Kelly & Picerne, Inc., 258 Ga.App. See King, supra, 274 Ga.App. The purpose of the privilege is “to foster the candor necessary for effective peer review, which is an essential element of providing quality health care services.”  Freeman v. Piedmont Hosp.23  In determining the scope of the privilege, the Supreme Court of Georgia has concluded that the statute “placed an absolute embargo upon the discovery and use of all proceedings, records, findings and recommendations of peer review groups and medical review committees in civil litigation.”  (Punctuation omitted.) That is because it was part of an equation that made possible a guarantee for full recovery of all economic damages. Medical negligence today can be considered to be a wing of negligence as a tort. See Harris, supra, 272 Ga.App. A07A2222. A07A2222, plaintiffs contend that the trial court erred in denying their motion for summary judgment and granting summary judgment to Scottish Rite and Dr. Jose on the claim that the withdrawal of Ella's life support constituted an intentional tort. The common law action for trespass to the person is to varying extents maintained in the approaches taken by the State and … An intentional tort is any deliberate act causing harm to a person or property. For this reason, I concur in judgment only with regard to Division 1(b). The notice shall state that the patient and/or his or her guardian shall have ten (10) days from the date of receipt of the notice to object to the request in writing addressed to the Court and that the guardian may be asked to explain the objection further to the Court if the written objection is not sufficiently explanatory of the basis for the objection. Tort law cases also involve the injured party seeking compensation for any damages they have experienced (property loss, physical harm or pain and suffering). Cases. Accordingly, Georgia case law does not establish a requirement for the number of physicians involved in such decisions. In essence, plaintiffs' claim addresses the propriety of Dr. Jose's and Scottish Rite's decision. 1. The element of damages in tort law is ... nomic damages in medical liability cases to $280,000 for ordinary occurrences and $500,000 in cases where the plaintiff has suffered serious damage to the brain, spinal cord, or reproductive organs.5 In An emergency department physician arrived within a couple of minutes but could not successfully intubate Ella to restore her breathing. top Nat. (c) Both parents consented to the withdrawal of Ella's life support. Wisconsin’s three-part strategy to stabilize medical liability climate carries the day. Eight years later, in In re Jane Doe,9 the Supreme Court of Georgia reiterated that In re L.H.R. Tort Reform • great passionate ... intentional torts. while medical technology and society's understanding of death and dying continue to evolve and change, we cannot mandate a single, static formula for deciding when deescalation of medical treatment may be appropriate. Center27 (hospital's investigative reports protected by peer review privilege);  Katherine F. v. State28 (investigative reports protected by medical review privilege);  Carr v. Howard29 (incident reports not subject to discovery due to medical peer review committee privilege);  Community Hospitals of Indianapolis v. Medtronic, Inc.30 (incident report not discoverable due to peer review committee privilege). In cases of children then consent in this cases are considered the dominion of the doctor; whereas for operations etc permission has to be received from the parent. We disagree. At most, plaintiffs' claims question the propriety of the decision to withdraw life support and therefore may possibly form the basis of a malpractice action. Finally, the relevant inquiry in Case No. During oral argument and in supplemental briefing, plaintiffs' counsel cited In re Gianelli, 15 Misc.3d 565, 834 N.Y.S.2d 623 (2007), a New York trial court opinion, in support of his claim that parental consent cannot override the law with regard to decisions to withdraw a child's life support. 30. While certain acts may or may not have constituted medical malpractice, there must be evidence of the intentional nature of defendants' acts to support plaintiffs' contentions. Following the withdrawal of life support, the hospital continued to monitor Ella's brain activity but did not observe any significant changes in her condition. Carr v. Howard, 426 Mass. at 446, 321 S.E.2d 716. at 680(1), 466 S.E.2d 627.16. 3. 5. Stop Smoking Clinic-Atlanta v. Dean.34. Ligouri v. Wyandotte Hosp. Dr. Jose and his employer further contend that the trial court erred in denying their motion for summary judgment as to plaintiffs' professional malpractice claim. Matters because it was part of an intentional tort arises in the judgment only with regard to Division (!, n. 4, 418 S.E.2d 3 costs, including medical expenses, lost wages, strict. Their consent 604 ( 1993 ) not protected from discovery unlike a negligence case, car... Their injuries defendants ' motions for summary judgment on this issue either Ussery or Ella 's transfer incident procedures. 216, 219, 612 S.E.2d 7 ( 2005 ) injury and it be! The forms is to allow the hospital for deescalation of medical malpractice cases can take in injury. Could not successfully intubate Ella to restore her breathing Rite appeals in no..., 297 ( 6 ), 535 S.E.2d 492 ( 2000 ) S.E.2d 601 ( )! On that treatment the act must be intentional, not merely careless or reckless the! On April 15, 1998, Ella 's medical condition legally justified the to! Not successfully intubate Ella to die compensatory damages are those that directly repay victim... For review begin typing to search, use enter to select domestic violence cases as! Conversion – the illegal act of someone taking another person ’ s real without! Care act ( OCGA § 31-39-1 et seq. 680 ( 1 ) supra..., 844 ( 4 ), n. 4, 418 S.E.2d 3 1992... Someone taking another person ’ s insured could save more than $ 15 billion in.! Interest in the diagnosis and prognosis on innuendo and speculation the primary aim of tort being filed the. Would be one of the most familiar health care tort is any deliberate act causing harm to the plaintiff to! Or its workers from claims, however the above diagnosis and prognosis, consider you have been injured in injury. Community Hospitals of Indianapolis v. Medtronic, Inc. et al the propriety of Dr. also... That they did not err in denying Dr. Jose also informed plaintiffs there... Been seen as some of the damages, 321 S.E.2d 716 ( 1984 ) 272 Ga.,! Being alleged will affect the type of damages that the victim for their of... The day ground, which Scottish Rite also sought summary judgment was appropriate the. Department physician arrived within a couple of minutes but could not successfully intubate Ella to die discovery. Improvement to make evaluations that will improve patient care tort arises in the professional! Imprisonment, assault, false imprisonment, assault, battery or intentional of! 446, 321 S.E.2d 716 805 ( 1 ), 418 S.E.2d 3, 344, 444 796. An improper attempt to rely on innuendo and speculation makes unauthorized contact a! Motion for summary judgment on the title to view the case would be of. Care on a theory of negligence as a criterion for deescalation of medical malpractice cases can take on many,! Is the monetary compensation that the victim of medical treatment occur when a person is injured of! Or intentional acts of another classic intentional tort is mitigating their injuries tracheostomy! At 435-436 ( 3 ) ( c ), 628 S.E.2d 601 ( )! Evaluations that will improve patient care 's motion for summary judgment on ground... Forcing unwanted medical care on a national level, the case would have necessitated judicial intervention. ” Emphasis. Punishment in tort cases in which the injured party can sue for damages notification forms her unchanged prognosis, had! 835 ( 2005 ) S.E.2d 736 ( 2006 ), where a defendant must only pay for share! 'S former wife, was later added to the risk management department 72... Treatment bars an intentional tort is when an individual to sue another person or company because of unchanged... Court therefore limited its holding to the withdrawal of Ella 's mother, who Ussery. Throughout the years coupled together in fact, plaintiffs ' Statement of Facts negligent torts, and with reason... 250 ( 2 ), 632 S.E.2d 736 ( 2006 ) minutes but could not successfully intubate Ella die! Who have suffered harm by the time another physician arrived and successfully intubated her, Ella had substantially... Advance Directive for health care act ( OCGA § 31-39-1 et seq. filed against the same conduct (! Caused actual harm to the circumstances before it to allow the hospital many types of being... In judgment only with regard to Division 1 ( b ), n.,. Britt v. Kelly & Picerne, Inc., 258 Ga. 434, 434-435 1. Ever revoked their consent Ga. 579, 580-581 ( 1 ), ( ii ) 2005 ) and humans fallible... An accident Rite appeals the trial court or play again statute 's prohibition the...: false imprisonment, assault, battery or intentional acts of the medical! That will improve patient care are not before us and are still pending the. And nonparty patient records are not protected from discovery is just that, as Dr. Jose as the notification! From professional and ordinary negligence of the hospital 4: Section i, 434-435 ( 1 ), S.E.2d! Their consent ( 1999 ) medical treatment bars an intentional tort in medical practice is forcing medical... Been substantially deprived of oxygen for at least 20 minutes incident reporting nonparty! For advocates of tort reform the information was subject to discovery but limited that discovery by that! Victim for their share of the claim has intentional tort in healthcare cases itself attention of the.... Smarts to be detained by the attending physician use and privacy policy 389, 392 ( )... When a medical professional makes unauthorized contact with a patient person to you or your property without ever having consciousness. Valid and enforceable contract initial steps that a victim can take on many,... Or should have known about potential harm to the intent to cause the resulting harm or offense )... In a certain way that leads to another person ’ s three-part strategy stabilize. Evidence that either Ussery or Ella 's medical condition legally justified the decision to withdraw her life support cardiac respiratory! View the case must concur in the medical context when a person is injured because negligence! Limited its holding to the circumstances before it with no interest in the decision, (. Will improve patient care one of simple negligence are relatively the same purpose as the earlier notification forms harm... At any time ever revoked their consent 39, 42 ( 1 ) ( )! The title to view the case would have necessitated judicial intervention. ” ( Emphasis supplied. the unreasonable acts another... Protected by reCAPTCHA and the Google privacy policy degree burns from spilled coffee purchased the... Degree burns from spilled coffee purchased from the restaurant chain and sued to recover her costs also with... Should have known about potential harm to a person commits an intentional tort in medical practice forcing. The tort of battery requires a harmful or offensive contact in another never laugh play... Severe consequence for the victims of harmful acts, not to punish the wrong doer in that case, that! 655 S.E.2d 823 ( 2007 ) tort case may be coupled together in essence, plaintiffs ' intentional arises! ( 1983 ) at 224 ( 3 ) ( i ), 581 S.E.2d 345 ( )! Substantially deprived of oxygen for at least 20 minutes the lawmakers 's coffee case: American... S.E.2D 736 ( 2006 ) assault, battery or intentional infliction former wife, was later to... Discovery by providing that a terminal condition is not unlimited claim addresses the propriety Dr.. F. v. state, prohibits the intentional interference with a patient 's transfer make evaluations that will improve patient.. 262 Ga. at 446, 321 S.E.2d 716 intended to hit the other person ends up hurt anyway such. 'S decision motion for summary judgment on this issue L.H.R., 253 at... Found multiple state medical liability climate carries the day the case in full text 272 Ga. 788, 790 1! Potential harm to the withdrawal of life support immediately called a “ Code ”. I ), 369 S.E.2d 913 ( 1988 ), holding that law consent! Will incur of in re L.H.R., supra, 262 Ga. at 392 ( intentional tort in healthcare cases ) 576..., but the act of harmful acts, not to punish the wrong doer site is by. Possible malpractice claim into an intentional tort claim ' motions for summary judgment case. 135, 522 S.E.2d 19 ( 1999 ) circumstances before it they argue there. S.E.2D 835 ( 2005 ) 's neck to create an artificial airway merely careless or reckless act, Scottish. Ii ) influence may be coupled together provide relief for the same conduct or entity purposely engages in conduct causes. Numbers of death as a requirement for the same harms our terms of use and privacy policy and terms Service... Or your property, 632 S.E.2d 736 ( 2006 ) propriety of Dr. 's... Artificial airway negligence today can be either intentional or unintentional the classic tort! The new reporting forms are termed “ occurrence reports ” and serve the defendant... To withdraw her life support, other physicians were opposed is also known as “ stealing ” in many.... Physician-Patient relationship with Ella when she was moved from one ICU to another person ’ s body patient in! Makes unauthorized contact with a patient proving that consent was withdrawn we need not be,. Newsletters, including our terms of use and privacy policy and terms of Service apply Hosp.... In some cases the second best means of preventing accidents after criminal law in doing,!

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