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There have been medical  malpractice cases litigated as intentional torts, but the evidentiary bar for such actions is set fairly high.  Intentional torts, like negligence, is fault-based.  However, intentional torts require the proof of specific conduct that demonstrates a greater responsibility for knowledge of the near certainty of injury.  The question then becomes not what was known, but what should have been known under the circumstances.

Therefore, in the case of medical malpractice based on the allegation of intentional tort, the issue is whether the defendant had constructive knowledge that the act or omission was substantially certain to cause injury to the plaintiff. This is different from “intent to injure”, which can be a criminal matter.  The distinction here is the “intent to act without regard” as opposed to the “intent to injure”. This is also different from gross negligence.  Here, the distinction is that the knowledge and appreciation of danger are not enough for an intentional tort.  There must be evidence of voluntary action taken in light of the knowledge and appreciation of danger, plus the added feature that the risk of harm be a near certainty rather than a mere probability.

Theory is best demonstrated by example. One example might be when a physician does not follow accepted procedures and fails to account for surgical instruments used during a procedure. As a result, he leaves a metal clamp behind in the patient’s body and predictably, complications ensue that require additional surgical procedure(s).  An attorney could bring action here as an intentional tort of battery, arguing that the medical services provided differed substantially from that to which the patient consented.

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