Tort

Issues of Concern

Tort Liability Pathway:

Duty -> Breach of Duty -> Proximate Cause -> Damages

The analysis of tort liability starts with “duty.” The breach of that legal duty leads to an injury and thus damages. The concept of “proximate cause” is a legal fiction that acts as a check on imposing damages that are too speculative or remote. An injury may have multiple causes, but proximate cause is the legal cause of an injury and the cause that produces the foreseeable consequences of the injury. The concept of foreseeability is key to the liability analysis in tort law. Consider the case of a sponge left in a patient's abdomen after surgery. Analysis might show several “causes” including miscounting by the nurse, the initial placement of the sponge in the abdomen by the surgeon, not performing an x-ray when the “count” was off, failure by a radiologist to “see” the sponge on an x-tray, and so on. Proximate cause is a legal hedge that permits the assignment of a “main” cause where several downstream or upstream causes may have intervened. In the end, proximate cause is the legal, foreseeable cause of the injury. Generally, no foreseeability means no liability. Foreseeability is defined by what a “reasonable person” would expect to happen.[4][5][6]

The boundaries of tort law are defined by common law (case by case analysis of appealed cases on a specific point of law) and by state or federal statutory law (so-called “black letter law”). Judges, in interpreting the language of statutes, have wide latitude in determining which actions qualify as legally cognizable for the purpose of measuring damages. Tort law varies by State. [1][4][7]

The type of liability determines the compensation for an injury. Liability can be "joint and several," vicarious, proportional, or “strict.” Joint and several liabilities are usually apportioned by the degree of fault. Liability is classified as "joint and several" when more than one tortfeasor is involved, with each individual potentially liable for the whole amount of the damages if one cannot pay. Vicarious liability is usually imposed as a matter of public policy, such as holding an employer liable for the torts of his employees while operating within the scope of their employment. The analysis is that the employer is in a better position than the employee to absorb the financial loss. Proportional liability is usually apportioned by the degree of fault and is common when the injured party was partially at fault for the injury. In this situation, an award is typically reduced by the proportion of liability attributed to the claimant (if a party is 50% responsible for his/her own injury, then the amount of the award is reduced by half).

Strict liability is also a policy decision made by the law that penalizes an individual, with or without the individual determined at fault, when an injury occurs in the course of known dangerous activity. Strict liability can also be applied to drugs.  The pharmaceutical company Merck recalled the non-steroidal anti-inflammatory drug Vioxx due to severe cardiovascular damage and stroke effects.[8]

Damages may consist of compensatory and punitive damages. Compensatory damages may be sought for disfigurement, future medical expenses, future lost wages, long-term physical pain, and suffering or loss of consortium, among other grounds.  Punitive damages are additional damages imposed on the defendant as a punishment for outrageous or bad faith conduct. Aggravating circumstances include the malicious and intentional action of the defendant with utter disregard for the rights of the plaintiff.  For example, a physician injected silicone into a patient for breast augmentation but used a type that was “not for human use”.  The patient experienced pain and cyst formation in the breasts. The patient can sue for both compensatory and punitive damages since the defendant was grossly negligent and exhibited reckless disregard of the risks.  

Damages must be proved to a certainty; estimates are not sufficient. Damages may be limited by statute. Common statutory limitations on the value of pain and suffering in medical malpractice cases are one example. Governmental entities also may limit damage awards against them (so-called “sovereign immunity”).

Other remedies for a tort are injunction and restitution. An injunction is a  court order that requires a party to perform or refrain from performing a  specified act.  A person who has a license in another country but practices medicine in one of the United States territories may be ordered by the court to stop the practice until he gets a valid state medical license.

Restitution describes the act of restoration. The basic purpose of restitution is for fairness and to prevent the unjust enrichment of a party.  The plaintiff is to be restored to the position that he or she held prior to the tort.  Medical expenses and lost wages may be considered restitution damages. 

Clinical Significance

Torts fall into three general categories: intentional torts (e.g., performing surgery without a valid consent); negligent torts (e.g., failure to diagnose a ruptured ectopic pregnancy); and strict liability torts (e.g., implanting defective prosthetic hip components or using defective drugs). Intentional torts are wrongs that the defendant knew or should have known would have resulted in his/her actions or omissions. Negligent torts occurred when the tortfeasor’s actions were unreasonably unsafe. There are a variety of specific torts including assault, battery, trespassing, negligence, product liability, and intentional infliction of emotional distress. In the healthcare setting, “wrongful death” is the name of the tort where the loss of life is due to medical negligence. There is also a tort called “wrongful life,” which is a claim that a person should not have been born (e.g., when a tubal ligation fails, and a single mother is “burdened” with the cost of raising an unintended child).

The elements of various torts sometimes seem convoluted and difficult to understand to the non-legal mind. For instance, common law defines assault as an intentional act that creates an apprehension in another person of an imminent harmful or offensive contact. For example, a patient threatens a front desk staff and raises his fist in an attempt to strike. If the strike proceeds, then there is battery and assault. If the strike does not proceed, there may be an assault. The point is, assault may be different for different people, depending on their sensitivity. Thus, highly sensitive individuals may have a lower threshold for s assault than others. The analysis is individualized. However, there is also an element of reasonableness that operates in the evaluation. If the patient is several meters from the front desk staff, then a reasonable person might not become apprehensive until the patient is within striking distance. It is an assault when the person reasonably begins to fear being hit. A jury decides what a reasonable person would think.

The burden of proof in tort cases is different from that in criminal law, where the standard is beyond a reasonable doubt. For tort cases, the burden is “by a preponderance of the evidence” which translates to more likely than not, or greater than 50% likely.  While jury votes in criminal cases must be unanimous, in tort cases, depending on the state, a verdict against a tortfeasor may require less than the full jury compliment to agree. [9][10]