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Author Topic: Someone please explain "intent"  (Read 4079 times)

clicquot

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Someone please explain "intent"
« on: November 25, 2004, 11:19:46 AM »
    I am struggling with the concept of "intent" in torts. Specifically, if a doctor accidentally amputates the wrong leg on a patient, why is this a battery? Where is the intent to harm or offend? Someone please explain this concept to me! I am also confused on "substantial certainty." Is it that there is a "substantial certainty" that the contact will occur or is it that there is a "substantial certainty" that the contact will be harmful or offensive? Both? I would appreciated any feedback that can clarify this concept for me. Thanks!
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zemog

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Re: Someone please explain "intent"
« Reply #1 on: November 25, 2004, 01:06:21 PM »
Intent is a conscious desire or wanting, or substantially certain that the act will occur.  That act for battery being a h/o contact.  (Battery also has transfered intent for tort to tort and person to person also)

To explain substaintially certain, let's say A throws a gernade into a room intending to kill B, but C is talking to B, but A had NO intent or wanting to harm C. There's a substaintial certainty that C will be harmed by the act of A, so if C is harmed, A will still be liable for battery.  A doesn't even really have to know that C was there, but it's reasonable to know that someone will be harmed by a a gernade.  This can also be satisifed through transferred intent to harm B but is transferred to harm C.

Substaintial certainty is for h/o contact, not just h/o and not just contact.  For example, if I'm walking in a crowded subway terminal during rush hour, there's a substaintial certainty that I will have some contact with someone just by brushing shoulders just for the fact that there's no room in the subway terminal.  However, because the contact is not h/o (well, someone may argue offensive if I accidently brushed their butt), I would conclude that battery is not satisified because the contact was not satisifed even though volitional, intent, and causation is satisified.

For the doctor one, if I got that fact pattern on a exam, I would mention battery but conclude it wasn't because the intent factor was not satisfied. I would say for intent, if anything, it would be through substaintial certianty and not through conscious desire, but my conclusion in IRAC would be it's not satisified at all.  The fact that you said accidental proves that it's not intentionally.

I'm not sure why your professor would say it was intent (if that's who is saying that).  The only thing that comes to mind that I think is important here, for battery, the defendant not need know that the harm was occuring or occured, but for assault, he does.  So for a unconsicous defendant, there can never be assault, but battery may occur.  Or if someone attacked you from behind and you didn't see them coming, you should mention assault, but that it was not satisified.  But of course battery was satisfied.






law543

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Re: Someone please explain "intent"
« Reply #2 on: November 25, 2004, 02:19:59 PM »
Hi! Zemog pretty much answered your questions, but I wanted to commment on the Doctor hypo you gave (and some other things...let's face it, I love to talk *laughs). I don't see battery on the face of it...maybe your fact pattern gives you more...but a doctor amputating the wrong leg seems to be "professional malpractice" or "medical malpractice"....not battery.

What helps me to distinguish INTENT from NEGLIGENCE is that:

1) Intent - requires a substantial certainty that whatever it is we're talking about is going to happen. The reasonable person knows that if you pull out a chair that someone is going to sit in...the person will fall to the ground. That "substantial certainty" is  the requisite intent.

2) Negligence - Forseeability of the plaintiff...or forseeability of the risk. In doing some act, it is forseeable that somebody close by will be harmed. If I drive my car down the block and honk my horn for "fun", causing Susan in the house on the next block to drop her iron, burning her hand, I'm probably not liable to her because her injury was not a forseeable risk of what I was doing...it wasn't proximately caused by my act. She was not a forseeable plaintiff in my negligence. But...if Granny Gertrude was walking right beside my car and my horn caused her to jump and fall off the sidewalk, a pretty good argument could be made that, in honking my horn negligently, she was a forseeable plaintiff, and the risk to her was also forseeable, and what I did proximately caused her injury, making me liable. But...remember to make an argument.

You could argue this way, "Honking a horn causes a loud noise. It is forseeable then, that anyone standing close by would be startled by that horn. Therefore, the reasonable person wouldn't do so except in cases where horn honking is necessary and not just for fun, therefore, the defendant's horn honking was negligent and he his liable to the plaintiff."

You could argue for the defendant in the first hypo this way. "When a horn honks, the noise of it travels a great distance, making it heard by many people, possibly hundreds. It's unreasonable to expect a plaintiff to know that the negligent honking of horn would cause a burn on the hand of a plaintiff whom the defedant cannot even see. Therefore, the risk to the plaintiff was not forseeable, was not probable, and is extraordinary in retrospect. And the defendant is not liable."

Hope this helps. :)

Law543


    I am struggling with the concept of "intent" in torts. Specifically, if a doctor accidentally amputates the wrong leg on a patient, why is this a battery? Where is the intent to harm or offend? Someone please explain this concept to me! I am also confused on "substantial certainty." Is it that there is a "substantial certainty" that the contact will occur or is it that there is a "substantial certainty" that the contact will be harmful or offensive? Both? I would appreciated any feedback that can clarify this concept for me. Thanks!

duma

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Re: Someone please explain "intent"
« Reply #3 on: November 26, 2004, 01:39:49 PM »
Law543 hit the nail on the head in dealing with negligence and the professional. However, I am thinking that you worded the question wrong, because you seem concerned with intent with battery, and medical mal.

To answer your "why is is battery for a Dr..." I have to rework the hypo. Let us say the Dr. was to perform a surgery on the one leg, and you consented for it. While in surgery, the Dr. noticed that the other leg is about to have the same problem as the one you agreed to have surgery on. So, rather than making you come back for another surgery, the Doc decides to just fix it(please also accept that this wasn't a life or death emergency). This is a case where you could have battery on the Doc.

For there the be battery on the Doc for medical treatment, you must show lack of consent. If there is lack of informed consent there would be negligence, but lack of any consent is battery. Therefore, the intent needed by the Doc was the purpose to cause contact, in this case, an unpermitted contact. Remember, for battery you don't need to intend harm. It also doesn't matter if it is beneficial. Battery is the basic right to have one's body left alone by others.

duma

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Re: Someone please explain "intent"
« Reply #4 on: November 26, 2004, 01:58:41 PM »
There is a case that serves as a perfect example of what you are speaking of. Read Mohr v. Williams 104 N.W. 12.
Near the end of the case they even mention, " in the absence of showign that the D. was actuated by a wrongful intent, or guilty negligence...." Than follows the answer of what the court thinks about this intent and battery. It is basically as I said, "Every person has a right ot complete immunity of his person from physical interference of others, excpet in so far as contact may be necessary under the general doctrine f privilege; and any unlawful or unauthorized touching of the person of another... constitutes an assault and battery."

panahi

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Re: Someone please explain "intent"
« Reply #5 on: November 26, 2004, 09:54:41 PM »
Intent
   -purpose to cause harmful or offensive contact
  or
   -substantial certainty that the actions will result in harmful or offensive contact

Intent is a double pronged test. The second prong is a more lenient standard, and catches a lot of situations that the first prong would not catch.

Offensive contact means that a reasonable person would exclaim "outrage" at the idea of the type of contact. Amputating someones leg without their consent would cause a reasonable person to exclaim "outrage".

If a doctor amputated a leg, and could foresee that doing so without consent would cause someone offensive or harmful contact, and it was proved that he did not have consent, then there is the requisite intent to find battery.

You can and should combine this with the reasonable man standard. That is, this is all from the viewpoint of the mythic reasonable man: Barry Bonds. :)

That intent can then be transfered, in some cases: like if the doctor intended to amputate one man's leg and then mistakenly amputated another man's leg. This can be seen in negligence actions too, with the foreseeability part of the negligence test for the prudent man. Once intent has been established, it can be transferred from the intended victim to another nearby or connected victim.
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law543

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Re: Someone please explain "intent"
« Reply #6 on: November 26, 2004, 10:46:32 PM »
Hi! You give a very good explanation of these things. The only question I have...or the only thing I question rather, is...since the only context I could think of where a doctor would have opportunity to amputate a "wrong" leg would be where he had permission to ampute at least "one" leg...thus, in the hypo where Dr. amputates wrong leg, it could only be construed as professional or medical malpractice.

The poster above you, citing the Mohr case, spoke of a theory of battery...and I would agree in that particular case because the patient didn't even know of the condition of the "other" ear, thus, the operation, though necessary to do, should not have been done without consent...the doctor "touched" her without consent.

With amputating the "wrong" leg, however, presumably we have already obtained some sort of permission to do something...presumably permission to ampute the correct leg...or do whatever is necessary to that leg to save the patient's life. When he amputates the wrong leg, I don't see battery as an option, simply because the doctor had permission to "touch"...but in doing what he had permission to do...he did it NEGLIGENTLY....whereas in the Mohr case, the doctor wasn't behaving negligently, he was actually doing some act which he actually did correctly...but for which he did not obtain permission. He was "touching" her without permission. It would appear that the plaintiff in that case would not be able to go forward on a negligence theory, simply because what he did was successful and right to do! But...doing something "right" and "sucessfully" wasn't the issue. The issue was that he "touched" her without permission.

In negligence, there would have to be damage. In the Mohr case, there is no damage. He was successful. In the "wrong leg" amputee case...we have plenty of damage. The man lost his leg!

What do you think?

Law543

Intent
   -purpose to cause harmful or offensive contact
  or
   -substantial certainty that the actions will result in harmful or offensive contact

Intent is a double pronged test. The second prong is a more lenient standard, and catches a lot of situations that the first prong would not catch.

Offensive contact means that a reasonable person would exclaim "outrage" at the idea of the type of contact. Amputating someones leg without their consent would cause a reasonable person to exclaim "outrage".

If a doctor amputated a leg, and could foresee that doing so without consent would cause someone offensive or harmful contact, and it was proved that he did not have consent, then there is the requisite intent to find battery.

You can and should combine this with the reasonable man standard. That is, this is all from the viewpoint of the mythic reasonable man: Barry Bonds. :)

That intent can then be transfered, in some cases: like if the doctor intended to amputate one man's leg and then mistakenly amputated another man's leg. This can be seen in negligence actions too, with the foreseeability part of the negligence test for the prudent man. Once intent has been established, it can be transferred from the intended victim to another nearby or connected victim.

DOWNY

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Re: Someone please explain "intent"
« Reply #7 on: November 26, 2004, 11:26:43 PM »
It would appear that the plaintiff in that case would not be able to go forward on a negligence theory, simply because what he did was successful and right to do! But...doing something "right" and "sucessfully" wasn't the issue. The issue was that he "touched" her without permission.

In negligence, there would have to be damage. In the Mohr case, there is no damage. He was successful. In the "wrong leg" amputee case...we have plenty of damage. The man lost his leg!

1. The reason a cause of action does not arise under negligence is not because the unconsented operation was a success. It is because the doctor examined and then operated on the unconsented ear deliberately, ie with the purpose (intent) of causing an offensive (read as unconsented in this case) contact. The doctor's deliberate intent to produce an offensive contact was the bar to a negligence claim and satisfied a battery claim instead. Had the doctor messed up and damaged the ear, it would still be battery, although with higher damages, as the intent to operate without the requisite consent remains. Of course, it is possible that had the operation been a failure, the plaintiff could sue for battery as well as negligence. The battery claim would arise from the aforementioned deliberate purpose in producing an offensive contact, whereas the negligence claim could arise from a failure to uphold the objective professional standard in performing the operation.

2. Re: damages- Absent the injury incurred by the breach of consent, one could likely add negligent infliction of emotional distress (even if the battery was intentional) as a parasitic injury on the invasion of bodily sovereignty damages that were alleged in the suit.

HTH

clicquot

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Re: Someone please explain "intent"
« Reply #8 on: November 27, 2004, 09:43:14 AM »
To All,

     Thank you all for your contributions concerning this topic! My professor asserted that a doctor, who mistakenly amputated the wrong leg of a patient, has committed a battery. However, she did not explain why. She told the class, "Go through the elements of battery." I have been trying to figure out the answer for days! Thank God this board is in existence and that generous people are willing to help me work through an answer to a hypo.


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Louder Than Bombs

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Re: Someone please explain "intent"
« Reply #9 on: November 27, 2004, 11:51:00 AM »
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