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Doe v. City and County of Honolulu3/15/2000
v. Thakkar, 552 N.E.2d 507, 508 (Ind. Ct. App. 1990),
Collins alleges in her complaint that after becoming Thakkar's patient in March, 1984, her relationship with him developed into a social relationship involving periodic sexual intercourse. In January, 1988, Collins consulted Thakkar about the possibility that she was pregnant by him and Thakkar agreed to perform an examination of her on January 9, 1988, after ordinary office hours, for purposes of determining whether she was pregnant. Collins alleges further that during the purported examination, Thakkar advised her that she was not pregnant and then, twice, without her consent and over her protest, did some act with the metal instrument inside her as to inflict excruciating pain upon her. Collins alleges that Thakkar intentionally aborted the birthing process of her unborn fetus, of which Thakkar was the father, causing her to miscarry.
The majority of the court concluded that the statutory requirement applied to
ctions undertaken in the interest of or for the benefit of the patient's health, i.e. conduct engaged in by a physician which is curative or salutary in nature or effect. Acts or practices committed with something other than such a remedial purpose would again be excluded by implication. The text of the Act itself thus leads one to conclude that the General Assembly intended to exclude from the legislation's purview conduct of a provider unrelated to the promotion of a patient's health or the provider's exercise of professional expertise, skill or judgment.
. . . The legislature's establishment of a medical review panel, the sole purpose of which is to provide an expert determination on the question of whether a provider complied with the appropriate standard of care, suggests that the scope of the Act is likewise confined to actions premised upon the exercise of professional judgment.
. . . The acts as alleged, although plainly occurring during the rendition of health care, were not designed to promote the patient's health. Neither do they call into question Thakkar's use of the skill or expertise required of members of the medical profession. Id. at 510-11.
The dissent responded that
he malevolent and intentional aspects of the torts do not remove them from the purview of "health care" as contemplated in the Act. It was not the mental state of defendant nor his motivation which proximately caused plaintiff's injuries and damages. It was his conduct. The intentional and malevolent nature of the alleged acts remove those acts from the realm of medical negligence but not from the coverage of the Act. Id. at 512.
We agree with the dissent in Collins.
We disagree with Jane's argument that because the physician's acts of touching and fondling Jane's breasts were intentional, unnecessary, and/or done for an improper purpose, they are not medical torts. An alleged "unnecessary, improper and intrusive examination of [a woman's] breasts" where the doctor allegedly "fondled [the woman's] breasts and squeezed her nipples until they squirted milk in his face" is an alleged "medical tort" because it is an alleged "error . . . in professional practice, by a health care provider." The fact that the alleged action of the doctor is an alleged "intentional medical tort" does not change the fact that it is an alleged "medical tort" as defined in HRS ยง 671-1(2).
In Virginia, the relevant statute stated that " o action may be brought for malpractice against a health care provider unless the claimant notifies the health care provider in writing . . . prior to commencing the action." Hagan v. Antonio, M.D., 397 S.E.2d 810, 811 (Va. 1990).
Page 1 2 3 4 5 6 7 8 9 10 11 12 Hawaii Personal Injury Attorneys
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