Common Torts And How to Avoid Them

Some specific examples of common torts that can occur in the office or clinic are battery, defamation of character, and invasion of privacy.    

1) Battery:
The basis of the tort of battery is unprivileged touching of one person by another. A patient must consent to being touched. When a procedure is to be performed on a patient, the patient must give consent in full knowledge of all the facts. It does not matter whether the procedure that constitutes the battery improves the patient's health. Patients have the right to withdraw consent at any time.
One example of battery is when a medical assistant insists on giving the patient an injection the physician ordered for the patient even though the patient refuses the injection. Another example can be seen when a physician performs additional surgery beyond the original procedure (the surgeon performed a hysterectomy for which consent was given, but is liable for battery for removing an abdominal nevus from the patient's abdomen without consent). It does not matter that the physician does not charge for the additional procedure. It also does not matter if the patient would have given consent if asked in advance.    

2) Defamation of Character:
The tort of defamation of character consists of injury to another person's reputation, name, or character through spoken or written words for which damages can be recovered. Two kinds of defamation are libel and slander. Libel is false and malicious writing about another such as in published materials, pictures, and media. An example can be seen when the medical assistant writes in the patient's record, "Mr. O'Keefe's wife appears to be the cause of his ulcer." A copy of Mr. O'Keefe's records were later sent to a new physician who reviewed the record and saw the remarks quoted by the medical assistant.
Slander is false and malicious spoken words. Slander can be seen in the following comment directed by a patient toward the physician, "Dr. Woo is incompetent. He should have his license revoked." The statement is overheard by the office receptionist and other patients waiting in the reception area. In order for a tort of defamation of character (either libel or slander) to exist, a third party must see or hear the words and understand their meaning.    

3)Invasion of Privacy:

Invasion of privacy is another kind of tort. It includes unauthorized publicity of patient information, medical records being released without the patient's knowledge and permission, and patients receiving unwanted publicity and exposure to public view. For example, if a minor unmarried girl has been examined for possible pregnancy, and the medical assistant telephones the laboratory report to the girl's home and inadvertently gives the results to someone other than the patient, her privacy has been invaded. A second situation exists when persons other than those providing care and performing examinations and procedures (essential or nonessential personnel) are allowed to be present without the patient's consent. Yet another example is that the patient's right to privacy has been violated when asked to walk from the examination room across the hall to a treatment room while wearing only a patient gown in full view of other patients and personnel.    

Medical assistants and other health care professionals should:    

a)  close a door, pull a curtain, or provide a screen when looking at, handling, or examining the patient's body
b) expose only body parts necessary for treatment (drape the patient's body, exposing only that part which is being treated)    
c)discuss patients with no one except those individuals involved in the patient's care and then discuss only those aspects that relate to the needs of the patient for care
It is not an invasion of privacy to disclose information required by a court order (subpoena) or by statute to protect the public health and welfare as in the reporting of violent crime.