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Author Topic: Someone please explain "intent"  (Read 4026 times)

law543

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Re: Someone please explain "intent"
« Reply #20 on: November 27, 2004, 07:49:51 PM »
I think it would depend on the nature of the procedure. If it were highly invasive or caused a severe physical injury you could certainly sue for punitive damages. If these factors were not present, I think punitive damages would be less likely.

Okay, thanks for the discussion. I think I may have misjudged you before. You are very eloquent. You'll make a fine attorney, I think. :)

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strangelove

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Re: Someone please explain "intent"
« Reply #21 on: November 27, 2004, 08:31:02 PM »
the doctor INTENDED to cause the harmful contact-- he purposely took a knife and amputated the leg.  the harmful/offensive contact is a battery b/c there is no consent.  if you look at the actions of the dr. in this case vs. a dr. who amputates the correct leg, the only difference is the lack of consent in the operation that amputated the wrong leg.  everything else is the same.  there is an intentional act causing harmful contact to another---a volitional mvmt with knife causing another to lose his leg--but in your case, there is no consent, therefore its a battery.

law543

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Re: Someone please explain "intent"
« Reply #22 on: November 27, 2004, 09:55:11 PM »
the doctor INTENDED to cause the harmful contact-- he purposely took a knife and amputated the leg.  the harmful/offensive contact is a battery b/c there is no consent.  if you look at the actions of the dr. in this case vs. a dr. who amputates the correct leg, the only difference is the lack of consent in the operation that amputated the wrong leg.  everything else is the same.  there is an intentional act causing harmful contact to another---a volitional mvmt with knife causing another to lose his leg--but in your case, there is no consent, therefore its a battery.

Actually, if he amputated the wrong leg, it is medical or professional negligence. He was hired to amputate one leg...and inadvertantly (negligently) amputated another. Because he had consent to operate, I doubt a theory of battery would be the best choice to pursue because you would have to get around the intent. He lacked knowledge to a substantial degree of certainty that his actions would result in an unlawful, harmful, offensive touching....thus, no battery.

Negligence is the best route because by amputating the wrong leg, he failed in his duty of reasonable care to the patient. He failed to act as the reasonable doctor.

Law543

jeffjoe

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Re: Someone please explain "intent"
« Reply #23 on: November 27, 2004, 10:03:00 PM »
In Tennessee at least it would be medical battery.  Patient consents to a procedure, but practitioner performs a different procedure.  Medical battery has been defined to us by prof. as negligence.

Performance of an unauthorized procedure constitutes a medical battery.   A simple inquiry can be used to determine whether a case constitutes a medical battery:  (1) was the patient aware that the doctor was going to perform the procedure (i.e., did the patient know that the dentist was going to perform a root canal on a specified tooth or that the doctor was going to perform surgery on the specified knee?);   and, if so (2) did the patient authorize performance of the procedure?   A plaintiff's cause of action may be classified as a medical battery only when answers to either of the above questions are in the negative.   Blanchard v. Kellum, 975 S.W.2d 522, (Tenn. 1998)

Based on that I would say a doctor who works on the wrong limb, ear, etc., is negligent.
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law543

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Re: Someone please explain "intent"
« Reply #24 on: November 27, 2004, 10:12:40 PM »
In Tennessee at least it would be medical battery.  Patient consents to a procedure, but practitioner performs a different procedure.  Medical battery has been defined to us by prof. as negligence.

Performance of an unauthorized procedure constitutes a medical battery.   A simple inquiry can be used to determine whether a case constitutes a medical battery:  (1) was the patient aware that the doctor was going to perform the procedure (i.e., did the patient know that the dentist was going to perform a root canal on a specified tooth or that the doctor was going to perform surgery on the specified knee?);   and, if so (2) did the patient authorize performance of the procedure?   A plaintiff's cause of action may be classified as a medical battery only when answers to either of the above questions are in the negative.   Blanchard v. Kellum, 975 S.W.2d 522, (Tenn. 1998)

Based on that I would say a doctor who works on the wrong limb, ear, etc., is negligent.

In the case of the doctor performing surgery on the other ear...yes, Medical Battery. There was no negligence. He knew what he was doing. He "intended" to do the medical touching. He had no permission to do so. Battery.

In the case of doctor cutting off the wrong leg...simple case of professional negligence. Cannot be medical battery because there was no intent. He did not know to a substantial degree of certainty that his actions would result in an unauthorized, h/o touching of the defendant. He acted in good faith...but acted negligently, nonetheless.

EDITED TO ADD: I missed where you said that Med.batt. was negligence. Sorry. :)

Law543

jeffjoe

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Re: Someone please explain "intent"
« Reply #25 on: November 27, 2004, 10:26:39 PM »
I think medical battery is a hybrid tort, since battery is usually an intentional tort.
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law543

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Re: Someone please explain "intent"
« Reply #26 on: November 27, 2004, 10:31:42 PM »
I think medical battery is a hybrid tort, since battery is usually an intentional tort.

Yeah, it seems to be a little misleading. Battery should solely refer to an intentional act.

It's sorta like saying "Negligent battery" *laughs*

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jeffjoe

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Re: Someone please explain "intent"
« Reply #27 on: November 27, 2004, 10:49:09 PM »
It seems to.  If I remember correctly, it is defined by statute in Tennessee.

I think medical battery is a hybrid tort, since battery is usually an intentional tort.

Yeah, it seems to be a little misleading. Battery should solely refer to an intentional act.

It's sorta like saying "Negligent battery" *laughs*

Law543
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panahi

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Re: Someone please explain "intent"
« Reply #28 on: July 12, 2005, 10:13:18 PM »
Consent is a very specific thing. Consent to one leg does not imply consent to the other. The thing to focus on is whether the doctor knew or should have know that his operating on the wrong leg was harmful or offensive contact. Now, granted, he did not know he was operating on the wrong leg. This is why it may be better to try this case in negligence. Intent is all about the actors state of mind. There are two elements to a battery:

1. Intent (purpose to, or knowledge that actions would) cause:
   a. harmful or
   b. offensive contact
2. Harmful or offensive contact results

Battery is an intent tort. It revolves around the doctor's subjective intent.

We know that offensive and harmful contact resulted. The guy lost his good leg.

We may have some trouble determining whether the doctor had the requisite intent to have committed a battery.

We must analyze what he knew, (not: should have known, thats negligence), and what he had the purpose to do.

If he was negligent, and he was aware of his negligence at the time he amputated the leg. Say, for instance, that he had not looked at the patient's file, and he knew that this lack of knowledge could result in amputating the wrong leg, then he probably committed a battery, because he had knowledge that he could be causing harmful and offensive contact. The fact the he may have had doubts whether his negligence was resulting in harmful and offensive contact, is the weakness in the battery argument. It is important to note that the battery claim revolves around what he actually knew in his mind. Did the thought enter his mind that he was amputating the wrong leg, or was he thinking he might be amputating the wrong leg. The latter may still be battery, but it will be more tenuous.

So, really, in court, you could pursue a negligence claim and a battery claim resulting from the negligence claim. The important thing is to concentrate on what the doctor knew or meant to do.

Brian

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....
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