Wednesday, January 29, 2014


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(1) Right to Privacy.  
(2) Battery.
(3) Case Law & Precedents
(4) Punitive Damages
(5) Photographs by physicians
(6) The case of Berthiaume v. Pratt, M.D.,  REQUIRED READING

Privacy is a complex right that can probably be reduced to a 'right to be left alone', but can only be understood by examples.  The Berthiaume case includes a good, brief discussion of the right.

Photographs by physicians can be a normal part of medical record keeping and are consistent with the standards of care so long as they relate to treatment of the patient.  Photographs taken by a physician that bear no relationship to treatment or that are revealed to persons not engaged in patient care may amount to an invasion of privacy for which the physician can be sued and disciplined by his employer and the medical board.  Unauthorized taking or use of photographs are probably the most frequent causes of invasion of privacy suits against physicians.

The following links to news articles about a surgeon in Arizona who took a cellphone photo of a tattoo on his patient's penis may give a sense of how this can bring a physician to grief.

This is not the preferred way to international renown..


Terms and concepts:  Several terms and concepts likely to be unfamiliar to medical students are used in this case.

(1) Appellant and Appellee.  In a civil lawsuit for damages, the party suing is known as the Plaintiff and the party being sued is known as the Defendant.  When the actual trial ends and the losing party files an appeal to a higher court, that party becomes the Appellant, and the other party becomes the Appellee.

(2) Directed Verdict.  If the judge is sufficiently sure of the law and facts of the case he may enter a Directed Verdict, bringing the trial to a close without submitting it to the jury.  In the Berthiaume case, the judge entered a directed verdict in favor of the Defendant physician.  The Plaintiff—the party suing the surgeon—filed an appeal, becoming the appellant in the case.  Much of the court’s discussion in this case relates to what the “jury could have concluded” to support a verdict against the Defendant if  it had been given the case.  Basically, when you read the case you will see the Supreme Court saying that the trial court made a mistake in claiming there were no issues that should have been given to the jury.  For that reason, the Supreme Court threw out the trial court’s directed verdict and ordered that there be a new trial in which the jury would be given the opportunity to enter a verdict.

(3)  Tort of assault and battery.  The Supreme Court identified a possible ‘tort of assault and battery’ in this case.  These three words are among the terms of art that must be learned.  A ‘tort’ is a wrong against someone that can be used as a basis for a lawsuit.  “Battery” is a specific tort, usually described as ‘any unauthorized touching’.  See: Bang v. Charles T. Miller Hosp..  An assault is sometimes confused with battery, but usually means putting someone in fear of an imminent battery without actually touching that person.

(4)  Actionable invasion (of privacy)  is an expression used in the case.  An invasion of privacy may be so insignificant that it would not support a lawsuit.  To be ‘actionable’ means that the act is bad enough that it can be sued upon.

(5)  Punitive damages are discussed in Berthiaume.  Most damages (always money) are awarded to compensate the injured party for what he has lost.  However, punitive damages may also be awarded over and above any measurable loss if the jury decides that the Defendant’s conduct was so outrageous that it should be punished in some manner.  The conduct of the surgeon in this case may rise to that level.

(6)  Right to Privacy new to this court.  This case opinion is useful because it includes a clear discussion of the nature of the right of privacy.  It is also important because it illustrates how courts use case law to change the law.  When this case was accepted by the state supreme court there was no recognized law relating to a ‘right to privacy’ in its jurisdiction.  The state legislature had not addressed the issue, and the court had not had a previous occasion to consider it.  In conducting its analysis, the court looks to a learned article on the nature of the right to privacy, and then looks to how the courts in other states had dealt with the same issue.  The decisions of courts in other states are not binding on the Supreme Court of Maine, but they may serve as persuasive precedents that can guide the Maine court to its decision.  In this case, the Supreme Court of Maine adopted the principles already established in other states and formally recognized a right of privacy in the State of Maine and the right of privacy, by this decision, became a part of the law of the state.  This case becomes a precedent that must be followed by all courts that take up this issue in Maine in the future.  If someone preparing a lawsuit asks whether there is a right to privacy in Maine, the answer is ‘yes, there is a precedent, the right to privacy was recognized in the Berthiaume’ case, and it is the law.’  This is how the law changes and evolves by court decisions or case law.

(7)  Physician-Patient Relationship.  In its opinion, the Court takes note of the fact that the surgeon being sued was not in a therapeutic, physician-patient relationship at the time of the alleged tort (wrong) because the surgery was complete and the patient had been returned to his primary care physician.  This is important.  It was not a malpractice case because the surgeon was no longer treating the patient.  Arguably, the surgeon’s malpractice insurer could say it is not responsible for non-medical torts and is therefore not liable to pay the damages if the surgeon loses the case. The surgeon could have to pay out of his own pocket.   Also, the statute of limitations (the time within which a lawsuit must be filed or lost forever) may be longer for ordinary torts [battery or invasion of privacy] than for the tort of medical malpractice.  Finally, since the surgeon was not in a physician/patient relationship at the time he committed this tort his malpractice insurer may have been reluctant to pay this judgment.  He could be on his own on collection days.

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