Tort law in medicine mainly focuses on medical malpractice, which falls under the category of negligence.¹ Medical malpractice is the failure of a health professional to exercise the degree of care and skill required to properly treat a patient, resulting in injury or death to the patient. There are standards and regulations in place by country and jurisdiction outlining an acceptable standard of care for health professionals in order to protect physicians from fraudulent law suits and also to hold them accountable to certain standards.¹ Health professionals may obtain professional liability insurance to help cover the risks and costs of any medical tort case brought against them.
In order to file a medical malpractice law suit, the plaintiff (or executor in the case of a wrongful-death suit) must establish four elements of a tort of negligence case²:
- A service was owed to the patient by the practitioner
- The duty was breached: the provider did not meet the relevant standard of care
- The breach of duty caused an injury
- There is damage from the breach
Another area of tort in medicine is battery. Medical battery is an intentional tort. This requires the practitioner to intentionally act (touch) the patient without consent, but which does not result in any damage.¹ An example provided by Johnson (2011) is of a patient requiring surgery on his left ear. While the patient is under anaesthetic, the surgeon operates on the right ear, improving the ear.² While there is no resulting damage, and actually an improvement, this is considered battery because it is an intentional act without the patient’s permission.
1. Johnson, E. E. (2011). Medical Malpractice and Health Care Torts. Retrieved from http://eejlaw.com/m/Medical_Malpractice_Part_1.pdf© BrainMass Inc. brainmass.com January 15, 2021, 6:45 pm ad1c9bdddf