Law in Radiography
The law that governs the relationships between individuals is known as civil law. The type of law that governs the rights between individuals in non-criminal actions is called torts. Torts are not easy to define, but a basic distinction is that they are violations of civil, as opposed to criminal, law. Tort law is personal injury law. The act may be malicious and intentional, or it may be the result of negligence and disregard for the rights of others. Torts include those conditions whereby the law allows for compensation to be paid to an individual when that individual is damaged or injured by another. There are two types of torts - those resulting from intentional action and those resulting from unintentional action.
Medico-Legal Terms and Principles
Intentional Torts
There are several situations in which a tort action can be taken against the health professional because of some action that was deliberately taken.
Intentional tort includes:
1. Civil Assault
2. Civil Battery
3. False Imprisonment
4. Libel and Slander
5. Invasion of Privacy
ASSAULT
Assault is performing or threatening to perform intentional injury for bodily harm to another by administration of (1) poison, (2) anesthetics, (3) narcotics, or (4) willful blows with weapons or other instruments. Assault is defined as the threat of touching in an injurious way. If the patient feels threatened and is caused to feel that he or she will be touched in a harmful manner, there may be justification for a charge of assault. To avoid this, it is absolutely essential that the radiographer explain what is going to happen and reassure the patient in any situation where the threat of harm may be an issue. Never use threats to gain a patient's cooperation. This applies when working with children as well as adults. A tort of civil assault can be filed if a patient is apprehensive of injury by the imprudent conduct of the radiographer. If found guilty, the radiographer could be held liable or responsible to provide financial compensation to the patient for damages that may have resulted from any apprehension.
BATTERY
Battery consists of touching a person without permission. Again, a clear explanation of what is to be done is essential. If the patient refuses to be touched, that wish must be respected. Actually, battery implies that the touch is a willful act to harm or provoke, but even the most well-intentioned touch may fall into this category if it has been expressly forbidden by the patient. This should not prevent the radiographer from placing a reassuring hand on the patient's shoulder, as long as the patient has not forbidden it, when there is no attempt to harm or invade the patient's privacy. On the other hand, a radiograph taken against a patient's will, or on the wrong patient, could be construed as battery. This emphasizes the need for consistently double checking patient identification. If a patient refuses a particular hypodermic injection, and the nurse approaches the patient and attempts to administer the medication, it would be an assault. If the nurse administers the injection, it would be a battery. The battery is the assault carried out or completed. Therefore, the patient must be conscious for an assault to occur. An unconscious patient may be the victim of battery.
There are certain circumstances when an individual committing battery will not be liable for battery. These are circumstances in which the conduct is said to be privileged, e.g., a radiographer restraining a patient who is obviously about to strike or injure other patients and/or himself/herself. The action of the radiographer to protect other patients and their interests outweighs the damage that may be sustained by restraining the patient and his/her interest. Holding a babies arms and legs to get an image is okay, but you must explain what you are going to do to the parent or guardian in the room.
FALSE IMPRISONMENT
False imprisonment is intentional confinement without authorization by one who physically constricts a person using force, threat of force, or confining clothing or structures. False imprisonment becomes an issue when the patient wishes to leave and is not allowed to do so. Inappropriate use of physical restraints may also constitute false imprisonment. The confinement must be intentional and without legal justification. Freedom from unlawful restraint is a right protected by law. If the patient is improperly restrained, the law allows redress in the form of damages for this tort. The proof of all the elements of false imprisonment must be established in order to support that an illegal act was done. In situations where patients are a danger to themselves or to others, the patient may be restrained. A situation where false imprisonment may arise is when a radiographer uses a brat-board to restrain a child and does not explain to the parents the reason for the restraint.
LIBEL and SLANDER
Libel is written defamation of character. Oral defamation is termed slander. These are torts that affect the reputation and name of another. The basic element of the tort of defamation is that the oral or written communication is made to another person other than the one defamed. The law does recognize certain relationships that require an individual be allowed to speak without fear of being sued for defamation of character, e.g., radiology department supervisors who must evaluate employees or give references regarding an employee's work have a qualified privilege. Radiographers can protect themselves from this civil tort by using caution when conversing within the hearing distance of patients.
INVASION of PRIVACY
Invasion of privacy charges may result when confidentiality of information has not been maintained or when the patient's body has been improperly and unnecessarily exposed or touched. Protection of the patient's modesty is vitally important when performing radiographic procedures.