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Author Topic: Torts Hypo - input appreciated  (Read 784 times)

mirror

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Torts Hypo - input appreciated
« on: December 14, 2006, 12:20:14 PM »
Z works for funeral home ABC. Z think many parts from the dead are in perfect working order so he takes parts from the dead bodies and sells them to W, who sells them to Drs.

The body parts are not inspected for disease or efficacy.

Ashley is a patient of Dr. C with a need for a kdiney. Dr. C successfully operates on A and replaces her kidney and restores her to perfect health. The kidney was obtained from W.

couple years later, people find out about Z's actions and Z is criminally prosecuted and convicted for his actions.

A learns about this, and through research, realizes her kidney came from a dead man named D, who's body was at ABC funeral home. D's kidney was sold by Z to W and ended up w/ Dr. C.

Research indicates a high likelihood of disease, including cancer, from the body parts Z took b/c they were not screened at all and were not properly maintaned in their transfer. A is in perfect health but fears she may soon get cancer or some other disease b/c of the kidney she has in her now.

Discuss any recoveries A has against any parties.

Discuss claims D's estate may have against any of the parties.


wardwilliams

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Re: Torts Hypo - input appreciated
« Reply #1 on: December 14, 2006, 12:31:18 PM »
This is tough
IIED claim for A against Z??
Battery for A against Z on transferred intent?

mirror

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Re: Torts Hypo - input appreciated
« Reply #2 on: December 14, 2006, 12:45:08 PM »
those seem to have the best chance, but no physical damages.  and the ED occurred years later.

wardwilliams

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Re: Torts Hypo - input appreciated
« Reply #3 on: December 14, 2006, 12:52:38 PM »
You don't need physical damages for battery as long as there is an "offensive contact" which there clearly is.   

If the staute of limitations hadn't run on the iied, it may not matter if the distress occured years later?  I am not sure of this though

jgsmith

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Re: Torts Hypo - input appreciated
« Reply #4 on: December 14, 2006, 12:56:49 PM »
This is tough, I would say that niether has a COA because there are no damages.

LostMyMonkeys

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Re: Torts Hypo - input appreciated
« Reply #5 on: December 14, 2006, 04:51:13 PM »
Definitely has a COA for the battery...the IIED would be tougher but definitely something worth discussing.

No brainer on battery. The 'damages' necessary are the offensive contact itself. It has been repeatedly held that non consentual medical care (ie, switching docs mid surgery while patient is out without consent, even if new doc is BETTER doc) is definitely battery.

I wonder if there is a conversion issue cause of action from the family of the dead body from whom the parts were taken???
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wardwilliams

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Re: Torts Hypo - input appreciated
« Reply #6 on: December 14, 2006, 05:09:55 PM »
I bet the IIED wouldn't even be that hard if it is within the SoL.
The guy's conduct was certainly outrageous.
Intent is satified because of the recklessness of the act.  Fearing of cancer is severe emotional distress.

wardwilliams

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Re: Torts Hypo - input appreciated
« Reply #7 on: December 14, 2006, 05:41:44 PM »
I bet the IIED wouldn't even be that hard if it is within the SoL.
The guy's conduct was certainly outrageous.
Intent is satified because of the recklessness of the act.  Fearing of cancer is severe emotional distress.

Working from memory, but...IIED doesn't extend to mere fear. There has no be actual emotional distress, right? It was outrageous, any reasonable person would say that when presented with the facts. But, the patient didn't display the distress, did she? Hmmm...

I think fear of getting cancer would constitute actual serious distress

LostMyMonkeys

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Re: Torts Hypo - input appreciated
« Reply #8 on: December 14, 2006, 08:55:51 PM »
I bet the IIED wouldn't even be that hard if it is within the SoL.
The guy's conduct was certainly outrageous.
Intent is satified because of the recklessness of the act.  Fearing of cancer is severe emotional distress.

Working from memory, but...IIED doesn't extend to mere fear. There has no be actual emotional distress, right? It was outrageous, any reasonable person would say that when presented with the facts. But, the patient didn't display the distress, did she? Hmmm...

Which is why the IIED claim would be excellent fodder for a law school exam
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LostMyMonkeys

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Re: Torts Hypo - input appreciated
« Reply #9 on: December 14, 2006, 08:57:20 PM »
My novice opinion...There is no IIED or battery.

This question is about the professional standard of care - whether the doctor had the duty to inform the patient of the source of the organ.  The prudent patient rule says the doctor should inform the patient of all relevant information so she can make a responsible decision about the type and risk of care. The doctor failed to do that - the doctor is negligent.

The source of the organ may be criminally responsible and might be contributorily negligent. But, this is largely a question of the special duty owed by the doctor. The special duty was to provide more information and not providing that information was the breach.

The causation and damages part of the question is more difficult - how do we assess damages for an injury which has not occurred? This might be akin to the way damages are measured for "lower chance of recovery" - a very omplicated process that would require expert witnesses to determine the type of risk, the increase in risk as a result of the doctor's negligence in using imperfect transplant organs, and the price tag for that risk scenario.

We didn't get much into malpractice but there's probably a claim for that too...

Just my guess.
How can you say there is no battery??? There certainly may be some issue of medical professionalism and duty to warn and what not but I think that stuff goes beyond the scope of a first year torts class and goes into an upper level law and medicine course.

Most definitely battery and quite possibly IIED for sure...at least make the argument on the IIED
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