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 uterus, triggering a miscarriage. The court found this
constituted a battery, allowing the patient to claim for wrongful abortion and
to avoid statutory limits on medical malpractice cases.