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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. (See Chapter 11.)

The most common intentional tort is battery. The legal standard for a battery is "an intentional, unconsented 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 manifest some malign intent. 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 health 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.[9] When she allowed the physician to examine her to confirm the pregnancy, he repeatedly forced a metal instrument into her uterus, triggering a miscarriage. The court found this constituted a battery, allowing the patient to claim for wrongful abortion.

[9]Collins v. Thakkart, 552 NE2d 507 (1990).


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