Contracts & Intentional Torts Healthcare Law: Class 4 • Elements • Defenses Terms/Definition • Liability: legal responsibility for one’s acts or omissions • Cause of action: the basis of a law suit. Sufficient legal grounds and alleged fact that, if proven, would constitute all the requirements for the plaintiff to prevail • Legal duty: he responsibility to others to act according to the law; may be imposed by constitution, legislation, common law, or contract • Affidavit: written statement confirmed by oath or affirmation, for use as evidence, but NOT in place of in-court testimony • Statute of Limitations: Any law that bars claims after a certain period of time passes after an injury. The period of time varies depending on the jurisdiction and the type of claim. 1. Offer 2. Acceptance 3. Consideration* must be given 4. Legality Elements of a Contract *act of each party exchanging something of value to their detriment 1. Offer 2. Acceptance 3. Consideration* must be given • Something of value must be given & received • $$, work, doing or NOT doing something 4. Legality • Purpose of the contract must be legal • Parties must be competent • Certain contracts must be in writing (property, contracts that cannot be performed in less than a year, contracts that guarantee the debt of another person Elements of a Contract “Meeting of the Minds” *act of each party exchanging something of value to their detriment Express vs. Implied Contract • Express = written and/or spoken • Implied = based on facts & circumstances i.e. ordering food at a restaurant patient makes appointment with MD Physician-Patient Relationship: Circumstances • Does a physician need to come into direct contact with the patient? • A physician is hired by ABC corporation to examine a patient for a pre-employment physical. To whom does the physician have a legal duty? Workers’ Compensation • General rule: Workers’ Comp is an employee’s exclusive legal remedy for a workplace injury or illness • Employees cannot make negligence or other legal claims against their employers • DUAL CAPACITY DOCTRINE EXCEPTION: when an employer operates as both an employer AND a health care provider, in some states, such as OH and CA Physician-Patient Relationship: Scope of Duty Physician: • agrees to diagnose and treat patient consistent with the standard of acceptable medical practice until the “natural termination” of the relationship • agrees not to abandon the patient • does not agree to CURE the patient • May be relieved of liability if the patient does not follow orders • Express promises can be viewed as a warranty • Has a duty to report diseases determined to be “reportable” by the state and/or federal government (i.e. STDs, HIV, seizure disorder, risk of harm/death, threatened by patient) Patient: • agrees to pay, or have insurance pay, for services • does not have to agree (legally) to follow the orders of the ...

1. Contracts & Intentional Torts
Healthcare Law: Class 4
• Elements
• Defenses
Terms/Definition
• Liability: legal responsibility for one’s acts or
omissions
• Cause of action: the basis of a law suit.
Sufficient legal grounds
and alleged fact that, if proven, would constitute all
the
requirements for the plaintiff to prevail
• Legal duty: he responsibility to others to
act according to the
law; may be imposed by constitution, legislation,
common law, or
contract
• Affidavit: written statement confirmed by oath or
affirmation,
for use as evidence, but NOT in place of in-
court testimony

2. • Statute of Limitations: Any law that bars claims
after a certain
period of time passes after an injury. The period
of time varies
depending on the jurisdiction and the type of claim.
1. Offer
2. Acceptance
3. Consideration* must be given
4. Legality
Elements of a Contract
*act of each party exchanging something of value to
their detriment
1. Offer
2. Acceptance
3. Consideration* must be given
• Something of value must be given &
received
• $$, work, doing or NOT doing something
4. Legality
• Purpose of the contract must be legal
• Parties must be competent
• Certain contracts must be in writing (property,

3. contracts that cannot
be performed in less than a year, contracts that
guarantee the debt
of another person
Elements of a Contract
“Meeting of the Minds”
*act of each party exchanging something of value to
their detriment
Express vs. Implied Contract
• Express = written and/or spoken
• Implied = based on facts & circumstances
i.e. ordering food at a restaurant
patient makes appointment with MD
Physician-Patient Relationship: Circumstances
• Does a physician need to come into direct
contact with the
patient?
• A physician is hired by ABC corporation to
examine a patient
for a pre-employment physical. To whom
does the physician
have a legal duty?

4. Workers’ Compensation
• General rule: Workers’ Comp is an employee’s
exclusive
legal remedy for a workplace injury or illness
• Employees cannot make negligence or other
legal claims
against their employers
• DUAL CAPACITY DOCTRINE EXCEPTION: when
an employer operates
as both an employer AND a health care
provider, in some states,
such as OH and CA
Physician-Patient Relationship: Scope of Duty
Physician:
• agrees to diagnose and treat patient consistent with
the standard of
acceptable medical practice until the “natural
termination” of the
relationship
• agrees not to abandon the patient
• does not agree to CURE the patient
• May be relieved of liability if the patient
does not follow orders
• Express promises can be viewed as a warranty
• Has a duty to report diseases determined to
be “reportable” by the state

5. and/or federal government (i.e. STDs, HIV, seizure
disorder, risk of
harm/death, threatened by patient)
Patient:
• agrees to pay, or have insurance pay, for services
• does not have to agree (legally) to follow
the orders of the doctor [vs.
insurance]
Physician-Patient Relationship: Termination
• When patient is cured or dies
• Physician and patient mutually agree
• Patient dismisses the physician
• Physician withdraws from the contract
Physician abandonment of patient
Abandonment may be express or implied:
• Express: physician notifies patient s/he’s withdrawing
from
the case, but doesn’t give patient enough time to
secure
alternative care.
• Implied: physician’s actions are consistent with
abandonment
If abandoned, the patient may have a claim
against the

6. physician for:
• Breach of contract
• Intentional tort
• Negligence
• If patient does not follow the physician’s orders,
physician
may not be able to be held liable for
abandonment
Physician Liability: Breach of contract
• Physician agrees to provide a service (i.e.
delivery
of a baby) but is not available when the
patient
goes into labor. A resident delivers and injures
the
patient. Patient has a negligence claim
against the
resident and a breach of contract case against
the
physician.
• Physician provides a different service/procedure
than what s/he promised. (i.e. NVD versus C-
Section)
Physician Liability: Breach of Warranty
• Warranty in medicine àphysician promises their

7. treatment will yield a certain result
• Plastic surgeon promises that the procedure would
“enhance [patient’s] beauty and improve her
appearance”.....surgery was not successful and after 2
more procedures, the nose looked worse.
• Guilmet v. Campbell: MDs told patient, “once
you have
an operation it takes care of all your troubles.
We are
specialists. There’s nothing to it at
all....after the
operation, you can throw awayyour pills and doctor
visits...weigh that cost against an operation.”
• Patients esophagus ruptured during the procedure and
her
developed numerous complications. Court found
MDs not
negligent, but guilty of Breach of Warranty
Intentional Torts (tort = wrong)
• Civil wrong, not based on a contract, that
results in
injury** to the plaintiff or harm to their reputation
• Occurs when the defendant acts intentionally and
knows or desires the consequences of his/her
act
• Assault
• Battery
• Defamation
• False Imprisonment
• Invasion of Privacy & Breach of Confidentiality
• Misrepresentation

8. • Other types of torts (negligence and strict
liability) are
addressed next week
**not necessarily physical injury
https://www.youtube.com/watch?v=A4vlk8u12OE
Assault & Battery
• Assault: Conduct that places a person in
apprehension of being touched in a way that is
insulting, provoking, or physically harmful
• Battery: The intentional causation of harmful or
offensive contact with another's person without
that person's consent.
• 3 types in medicine:
• No consent for the touching (Informed consent)
• Physician exceeded the scope of the consent
• Consent was “uninformed”
Health Systems: preventing assault and battery
allegations
• Obtain written consent from a patient before
initiating any procedures.

9. • For basictreatments, simply ask the patient if
you can take his blood
pressure, change his bandage, administer his
medications, etc.
• If a patient refuses treatment and there is no
threat to his life or well-
being, do not force treatment, notify those who
need to be notified, and
document the refusal and the notifications;
• Never threaten a patient or a family member
in any way or act in a
menacing manner toward the patient or family
member;
• Never hold a patient down to force treatment or
administer a
medication;
• Never threaten to hit a patient or family
member or actually do so; and
• Never make sexual advances toward a patient
or a family member.
Defamation
• Wrongful injury to another person’s reputation
via
a statement to a third party
• Libel = written defamation
• Slander = spoken defamation
• Defenses

10. • Statement was true
• Statement was made in good faith to protect
private
interest of the patient, physician or third party
1st Amendment Restrictions to Defamation Claims
• U.S. Supreme Court case of New York Times
Co. v. Sullivan, 376 U.S. 254, (1964) established
the
standard that for a public official to recover
damages for defamation, there must be “actual
malice” on the part of the defendant requiring the
information be false or that the defendant
acted with reckless disregard for the truth.
• Mr. Sullivan, Montgomery Alabama police, sued
the New York Times for a full-page
advertisement they published titled “Heed Their
Rising Voices” that was paid for by the
Committee to Defend Martin Luther King and
Struggle for Freedom in the South.
• The advertisement contained several inaccurate
accusations against the police that were
defamatory.
• While the plaintiff in an Alabama state court,
the Supreme Court in a 9-0 decision, held
that
public officials can not sue news publications for
libel unless the plaintiff could prove actual

11. malice in the false reporting of a news story.
• The Court found that the Alabama court failed
to protect the First Amendment rights of
freedom of speech and of the press.
• The Court ruled that the First Amendment
protects the publication of all statements
about
public officials, even those found to be false,
unless the statements are made with actual
malice.
False Imprisonment
• Unlawful restriction of a person’s freedom
• In medicine à patients held involuntarily in a
mental hospital
Invasion of privacy and breach of confidentiality
• Invasion of privacy: patient is subjected to
unwanted publicity
• Before and After photos of a patient’s
cosmetic surgery
• Breach of confidentiality: unwanted disclosure of
confidential information
• Patient’s health information (Also protected by

12. HIPAA)
Invasion of Privacy Elements:
1. Defendant intruded into the plaintiff's private affairs,
seclusion or solitude.
2. The intrusion would be objectionable to a
reasonable
person
Breach of Confidentiality Elements:
1. Defendant had a duty not to misuse the
confidential
information
2. Defendant breached that duty by misusing confidences
The breach caused the plaintiff to suffer an
injury.
DEFENDANT: “I never sold the information or
told anyone about it.”
ATTORNEY: “They are charging
you with simply accessing identifiable health
information without
a valid reason for doing so. You were not treating
any of those patients.”
Dr. H was sentenced to four months in prison, a

13. year of supervised release, and a $2,000
fine.
Misrepresentation
• Plaintiff must show that a fact was falsely
represented and that he based decisions on the
misrepresentation.
• Misrepresentation to persuade a patient to submit
to
treatment
• Misrepresentation of a prior treatment or its results
• Misrepresentation sometimes allows a patient to
bring suit after the statute of limitations expires
Action/Legal concept Definition
Contract Offer & Acceptance, meeting of the
minds, consideration given &
received, contract is legal
Workers’ Compensation Employee’s exclusive remedy for
workplace injury, bars other claims
unless defendant is employer AND healthcare provider
Breach of Contract MD agrees to provide a
service but does not or provides a different
service
Breach of Warranty MD promised treatment to yield a

14. certain result and it does not
Intentional Tort Defendant must ”intend” to act; no
actual injury is necessary
Assault Plaintiff is intentionally placed in
apprehension of being touched
Battery Defendant intentionally caused harmful contact
with plaintiff
without their consent
Libel Written injury to plaintiff’s reputation. Truth
is a valid defense
Slander Spoken injury to plaintiff’s reputation.
Truth is a valid defense.
False Imprisonment Unlawful restriction of a
person’s freedom
Invasion of Privacy Plaintiff is subjected to unwanted
publicity
Breach of Confidentiality Unwanted disclosure of
confidential information
In class project
• Plaintiff and Defendant?
• Which court heard the case?
• What is the cause of action?
• What was the defense?
• What was the finding?