 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Doe v. City and County of Honolulu3/15/2000
Hagan alleged that she was required to submit to a pre-employment physical to be conducted by Dr. Antonio. She alleged that her records of examinations conducted by her private physician should have been accepted in lieu of a pap smear, a pelvic examination, and a breast examination. Dr. Antonio required her to submit to a breast examination. When Dr. Antonio examined her breasts, "he ran his fingers over [Hagan's] nipples and asked her if she was excited." He did not conduct "a breast examination of the type that had been conducted by prior obstetricians and gynecologists on [Hagan]." Id. Hagan sued for damages on the counts of assault and battery and intentional infliction of emotional distress. The question was whether the action was for "malpractice" within the meaning of the statute. The majority of the Supreme Court of Virginia concluded in relevant part as follows:
When the statutory definitions are applied to the facts alleged, the conclusion must be that defendant's conduct, legitimate or improper, was "based on" an "act" by a health care provider to "a patient during the patient's medical . . . care." In other words, the defendant's conduct, according to the allegations, stemmed from, arose from, and was "based on" the performance of a physical examination."
. . . he plaintiff posits that an affirmance of the trial court's decision will mean that any time a physician, during examination or treatment of a patient, commits any one of a number of criminal acts which could be classified as torts, such as robbery or rape, such conduct could be classified as "health care" and thus be "malpractice." The answer to such a suggestion should be obvious, . . . It is undisputed that a breast examination, including the touching, is an inseparable part of a typical, complete physical examination of a woman. Rape or robbery during such an examination, or during treatment of a patient, could never arguably be classified as an inseparable part of examination or treatment. Id. at 812.
Although we conclude that the last sentence in the above quote is an overstatement, we otherwise agree with the majority in Hagan.
Hawaii's criminal statutes label "rape" as "sexual assault." The following two examples show that it is possible for a "sexual assault" to be "classified as an inseparable part of examination or treatment." First, the crime of Sexual Assault in the First Degree requires "sexual penetration." HRS § 707-700 (1993) defines "sexual penetration" as including "any intrusion of any part of a person's body." Consider the difference between the following two possible situations: (a) during a physical examination, the doctor's finger penetrates the vagina or anus of the person being examined; or (b) during a physical examination, the doctor's penis penetrates the vagina or anus of the person being examined. Although the latter is a "sexual assault" that can never be "classified as an inseparable part of examination or treatment," the former can be a "sexual assault" that is "classified as an inseparable part of examination or treatment." Second, HRS § 707-730(1)(b) (1993) describes a "sexual assault" that can be "classified as an inseparable part of examination or treatment."
In Dubin, the Hawaii Supreme Court implicitly concluded that Dubin's Count V, unfair and deceptive trade practices, did not allege a "medical tort." It expressly concluded, however, that, as against both the doctor and the hospital, each of the following of Dubin's counts alleged a "medical tort": Count I, breach of contract; Count II, breach of fiduciary duty; Count III, breach of patient-physician relationship; Count IV, defamation and perjury; and Count VI, negligent/intentional infliction o
Page 1 2 3 4 5 6 7 8 9 10 11 12 Hawaii Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|