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2021law486 · 3 years

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Session 2. Privacy Laws and Data Protection

Privacy and Data Protection

The basic principles of Data Protection are relatively new in the timeline of privacy related concepts and the development of privacy laws. It does have some relation to privacy rights in certain cultures and jurisdictions as well as similarities in the ‘personal’ aspects of its operation. However, in the Singapore context, the distinction is much clearer than it is in Europe and other similar jurisdictions where the two are intricately linked. The ‘communitarian’ values that the government espouses over individual rights also have a part to play in limiting the type of actions relating to privacy that are available in Singapore and in demarcating the approach to an individual’s rights to personal data from the balance of competing data interests.

Privacy Rights and Interests

The civil (and criminal) rights of action related to and rooted in privacy rights or principles vary across jurisdictions. In Singapore, the other privacy related laws are more limited compared to the situation in Europe and the United States. The current privacy laws mainly consist of the following rights of action:

The law on Defamation and the Tort of Malicious Falsehood;

The Protection from Harassment Act;

The law on Breach of Confidence; and

The law on Trespass and Nuisance.

The Development of Privacy Laws in Europe and the United Kingdom

In Europe, the right to privacy (or the “right to respect for private and family life”) is enshrined in the European Convention on Human Rights (“ECHR”) under Article 8.1, which states that: “Everyone has the right to respect for his private and family life, his home and his correspondence.” Article 8.2 further states that: “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

In the United Kingdom, the historical laws for the protection of physical or spatial privacy are well established, although new torts (or legislative action in lieu of such including anti-harassment laws and data protection laws) can still emerge. The earliest definition was “the right to be left alone”, which was made by Thomas M. Cooley in his Treatise on the Law of Torts (1st ed. 1879). The legal right to informational privacy, which is the protection of personal information from unauthorised disclosure or misuse, has emerged as the focus of common law developments instead.

Although there is still no ‘universal’ “tort of privacy”, privacy laws have expanded in other ways through common law incrementally. The Douglas v. Hello! case expanded the doctrine of breach of confidence in accordance with section 6 the Human Rights Act, which requires the UK to develop its common law to give effect to the rights under the ECHR, including privacy rights. There is no pre-existing relationship of confidence requirement for private information to be protected and the publication of such information can give rise to an action for damages. See also, Campbell v. Mirror Group Newspapers Ltd.; Mosley v. News Group Newspapers Limited and Max Mosley v. United Kingdom. The misuse of private information has emerged as a distinct tort to an action on breach of confidence in the case of Judith Vidal-Hall & Ors. v. Google Inc.

Concepts of Privacy in the United States

The earliest authority on privacy as a right in the United States was articulated in The Right to Privacy, an article by Samuel D. Warren and Louis D. Brandeis in the Harvard Law Review that was published in 1890. It was the result of social changes made by the introduction of earlier forms of technology such as newspapers (giving rise to greater dissemination of information), photography (for capturing lasting personal images). These had the potential of exposing details of private lives to a larger segment of society, which can embarrass or disturb individuals. Even then, the right to privacy does not extend to where the matter was of legitimate public interest, related to facts or was provided by the person concerned with consent.

The next seminal article emerged in 1960 and was written by William L. Prosser who listed four distinct torts that have developed from the right to privacy as legal recourse for individuals. These torts fall into four branches within which privacy-related torts today are the offshoot. These are:

Intrusion upon seclusion or solitude, or into private affairs;

Public disclosure of embarrassing private facts;

Publicity which places a person in a false light in the public eye; and

Appropriation of name or likeness.

In some cases, the right to privacy is not only protected and enforced by civil rights of action but are reinforced by criminal law provisions.

Today, the changes to the capture, retention and dissemination of information are multiplied manifold with modern infocomm. Together with even denser cities, greater population growth, travel and transnational interaction, this elevates personal privacy concerns to even higher levels than before and necessitate new and updated instruments of protection. In particular, informational privacy has risen to become a concern that requires greater and stronger solutions.

Preparatory Instructions:

What are the types of privacy you can think of and how would you compartmentalise privacy-related laws under them?

What is the relationship between data protection and privacy; false and personal information and privacy; and personal image and privacy?

Is privacy a right or an interest and what is the difference? How does it relate to the development and treatment of data protection laws in different jurisdictions?

Trace the development of the now repealed public order provisions in the Miscellaneous Offences Act to its new privacy-centric formulation in the PHA. What are the recent amendments to the PHA and how does it enhance privacy rights, if at all?

How has privacy as a right impacted on the way data protection laws developed in a region such as the European Union?

Primary Materials: (For Reference in Class Only)

Protection from Harassment Act (Cap. 256A) [PHA] amended as of 1 January 2020

Cases:

I-Admin (Singapore) Pte Ltd v Hong Ying Ting and others [2020] SGCA 32

Malcomson Nicholas Hugh Bertram and Another v Naresh Kumar Mehta [2001] SGHC 308

Lim Siong Khee v Public Prosecutor [2001] 2 SLR 342; [2001] SGHC 69

Required Readings:

Chapter 4 – Data Protection Law and Privacy by Lanx Goh & Jansen Aw in Chesterman ed., Data Protection Law in Singapore – Privacy and Sovereignty in an Interconnected World (2ed Academy Publishing, 2018) [available in Course Reserves]

Chapter 9 – Image Rights and Data Protection by David Tan in Chesterman ed., Data Protection Law in Singapore – Privacy and Sovereignty in an Interconnected World (2ed Academy Publishing, 2018) [available in Course Reserves and on SSRN online for free download - click here]

Gilbert Leong et al., Protecting the Right of Publicity under the Personal Data Protection Act, in the PDP Digest 2017 at 293

References:

Chapter 16 – Protection of Privacy Interests in Tort in Gary Chan, The Law of Torts in Singapore (2ed Academy Publishing, 2015) [available in Course Reserves]

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luisfieldsmcgirk-blog · 3 years

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huberpdflibrary · 3 years

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vixxkits · 4 years

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Trivia Tuesday Take 2 [November 20, 2018]

COMPLETE

Kit makes her way into the bar with Reese and Naf, taking in all the people there, along with the ample snacks provided at each table, her eyes going wide as she sees them. "Damn, this is soooooo cool!" She exclaims, pumping her fist excitedly. "Why didn't you guys invite me sooner? Free popcorn? This is like...the best place ever!"

"Because we had never found the right Trivia Tuesday partner," Naf offers back to Kit, moving to take a seat at his and Reese's favorite table, allowing Kit to sit on the other side, thinking on the hoops his friend had made him jump through in order to get the invite out to Mira, hoping she was someone worthwhile for his friends to meet.

"Your day in the sun, has finally come oh sweet grape." Reese affirms stoically, giving Kit a nod in the same fashion, before sliding into her seat beside Naf, taking a hand full of popcorn, popping a few pieces in her mouth. "Now to see if your partner and you can compete with the snackions you see before you." She winks, moving to order a drink as she awaits for this mysterious gal to make her hopefully fashionable appearance.

Mira finishes headbanging to Disturbed's Indestructable as the motorcycle purrs to a stop, enjoying the beat for one extra moment as the song finishes, before whipping off her helmet and removing her headphones, a strike of amusement twitching on her lips as she reads one of the texts she received, from whatshisface in her law class, asking yet again what her study schedule was, no doubt wanting it as part of his Quixotic quest to become the top student in the quest. Quickly, she types out a message stating that she was rereading the entirety of Prosser's Torts that night, which was obviously a stupid as fuck idea, but she was sure this poor sap was going to do it if he thought it gave him a chance at Victory, the thought amusing her, then momentarily making her feel bad for the wife and kids he was no doubt gunning so hard in law school to try to support, before letting out a laugh again, because this poor dude was honest-to-god funny in his library-induced misery. Grinning, she gives the driver of the motorcycle two taps on her helmet, before winking and giving her a salute. "Ci vediamo dopo, Francisca Morrrrrrrrrretti," she replies, before stepping into the bar, shrugging off her heavy coat to reveal her tight jeans and crop top, feeling much better in the warmth where she didn't have to be a human snowball, before making her way over to the man in question. "Naftali Fucking Greer, it's been a hot minute, hasn't it?" She inquires, sliding into the booth as she takes in the two other girls in questions. "Which one is Naf's partner, the ultimate slayer of TV trivia, or so I have heard through the grapevine?" She asks propping her chin up on her hand, before looking over at the other girl, who had to be her partner. "Mira," she says, introducing herself. "Gotta warn you, one, I'm a total fucking trivia nerd, and two, I came here to kick ass and chew gum, and while I'm not all out of gum, I only have spearmint, which I hate, so won't be doing any gum chewing tonight," she offers, giving Kit a quick wink before offering her hand to shake, sealing the partnership, before turning her attention to Reese. "So, as reigning TV Trivia Queen, any quick tips for the newbies here?"

Reese takes a deep sip of her frozen mudslide as she seems the woman she recognized from the photo Naf had sent her earlier waltz into the place, sliding into the seat beside Kit, making her wave of introduction. "Tropical flavor girl, myself." She offers back, moving her hand out, for the other woman to take. "Reese." She introduces herself, thinking on the question, as she drums her fingers onto her cheeks. "Center yourself - with cocktails, take advantage of the snacks and just ask yourself what your queen would do, can't go wrong. Good luck." She offers, raising her glass before moving to take another sip.

"Damn, you have good taste, then," Mira affirms, taking Reese's hand firmly. "Wouldn't happen to have any on you now, if it wouldn't be high treason, giving it to the Trivia Enemy?" She asks, before nodding her head, taking in Reese's sage advice. "Think we're all lacking in the first department, but let me fix that," she replies, studying the table before snapping her fingers, getting up to make her way over to the bartender, ordering a pitcher of frozen margarita for the whole table, ensuring she got the tiny umbrellas to mark the occasion, pouring the mix into the glasses for everyone, before holding up her glass. "Now you can properly say good luck," she says, giving a playful wink as she dons a Gatsby-esque pose, waiting for the group to all clink their margaritas together.

"Good luck!" Kit exclaims, thrusting her margarita in the air, excited to be part of her first ever Trivia Tuesday with her friends, hoping that this Mira was someone she could stay partnered with for many a Tuesday to come.

#( * rps. )#( * rps: mira di fiore. )#( * rps: reese aguilar. )#( * rps: naftali greer. )#( * completed rps. )

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itunesbooks · 5 years

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High Court Cases Summaries, Torts (Keyed to Prosser) - Publisher's Editorial Staff http://dlvr.it/R6tZ77 http://dlvr.it/R6tZ77

#Law

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juudgeblog · 5 years

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Definitions of Torts and its Characteristics

This article is written by Shubham Choudhary of The West Bengal National University of Juridical Sciences of the Class of 2023, the author had discussed the various definitions of torts and what are its different characteristics.

Definitions by Various Thinkers

According to Salmond “Tort is a civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust, or other merely equitable obligation

Winfield defines torts as “Tortious liability arises from the breach of a duty primarily fixed by law. This duty is towards persons generally and its breach is redressable by an action for unliquidated damages”

Pollock’s contribution to the definition is “tort is an act or omission (not merely the breach of a duty arising out of personal relations, or undertaken by a contract which is related to harm suffered by a determinate person, giving rise to a civil remedy which is not an action of contract”

Faeser defines tort as “Tort is an infringement of a right in rem of a private individual giving of compensation at the suit of the injured party”.

Peter Bricks contribution in defining torts is “The breach of a legal duty which affects the interests of an individual to a degree which the law regards as sufficient to allow that individual to complain on his or her own account rather than as a representative of society as a whole”.

Burdick helps in defining the term as “an act or omission which unlawfully violates a person’s right created by law and for which the appropriate remedy is a common law action for damages by the injured person”

Keeton and Keeton in their book define torts as “Tort law is a body of law concerned with granting or denying claims of individuals or impersonal legal entities against each other for the award of damages or other forms of legal reliefs”.

American Jurist Edward Kionka writes “Tort is an elusive concept (and) has defied attempts to formulate a useful definition. The one common element is that someone has sustained a loss or harm as the result of some act or failure to act by another. Tort is perhaps the least bastion of the common law. Tort law remains uncodified and in large part unaffected by the statute”

One among the Common Law countries, the Supreme Court of Canada took a holistic approach in the case of Hall v Herbert, “It is difficult to define the nature of tort. Indeed, one of the greatest writers in the field, W.L. Prosser has expressed the opinion that it should not be defined.

Perhaps it is the easiest to begin by saying what it is not.

A tort is not a crime. Although criminal law and tort law grew from the same roots, they are today quite distinct and different. Criminal law is designed to provide security for the citizen of the state. It attempts to define that conduct which society finds abhorrent and therefore necessary to control. Those who commit crimes are prosecuted by the state and are subject to the punishment which reflects the state’s or society’s abhorrence for the particular crime.

Nor is the law of torts contractual in its nature. Contract Law seeks to enforce the rights which arise out of an agreement whose parties have voluntarily agreed to be bound by its terms. The law of contract seeks to enforce the terms of the agreement specifically or provide compensation for its breach. Nor can torts fall under the title of quasi-contractual relief. That remedy seeks to prevent unjust enrichment that might, for example, arise out of payment of money under a mistake. The law of tort covers a much wider field than does contract. It provides a means whereby a compensation, usually in the form of damages, may be paid for injuries suffered by a party as a result of the wrongful conduct of others”.

One of the most important and right allocations of words was done by the Lord Denning of The House of Lords as “the province of tort is to allocate responsibility for injurious conduct”

Section 2(m) Limitation Act of 1963 defines torts as “Tort means a civil wrong which is not exclusively a breach of contract or trust”.

In the book Street on Torts by John Murphy and Christian witting, a beautiful attempt was made to define Torts as “Tort is that branch of civil law relating to obligations imposed by operation of law on all natural and artificial persons. These obligations, owned by one person to another, embody norms of conduct that arise outside the contract and unjust enrichment. Tort enables the person to whom the obligation is owed to pursue a remedy on his own behalf where a breach of a relevant norm of conduct infringes his interests to a degree recognized by the law as such an infringement.”

With these definitions from the pioneer in their fields a common notion can be drawn as there should exist a right of a person and that legal right has been breached by an another and person whose right has been breached has a legal remedy in a court of law.it is also been elaborated upon how it is different from other law including law of crime and contracts law.

What put torts law outside the box is the unlimited scope and ability to keep on evolving from time to time according to the needs of the society.

Characteristics of tort

A tort is a civil wrong: One must be aware that there are two types of wrongs: Civil and Criminal wrong. Tort comes under the purview of civil law and its wrong is known as a civil wrong. The distinction becomes important because unlike in criminal law there is no punishment in civil laws and matter is to be sued by a person himself and is not sued by the state further the compensation is granted in for of unliquidated damages which is not the case in criminal law.

A tort is an infringement of a right in rem: There are two types of rights, Right in rem and right in persona. While the right in rem is available against the whole world whereas right in persona is available against any particular individual.

Such as when a person contracts with another person and one of the parties has breached that contract, then the person of whose contract has been breached can only sue the person who has breached the contract. This is known as Right in persona i.e. one can sue to one whom he has contracted.

On the other side, every person has the right to the enjoyment of his own property and any person who has violated or infringed he will be sued and liable to pay the compensation in the form of unliquidated damages. This is known as right in rem which is available against the whole world. This way the tort law in right in rem and is available against the whole world. There is no need for any pre-existing relation, the only requirement is the existence of right and that right has been breached by a person.

Right in rem is not specific to any particular individual, which is the beauty of the Law of Torts, one can sue a person who has breached a right with no relation at all.

Torts deal with cases related to legal rights: It is fair enough that tort deals with an only violation which is in relation to breach of a legal right. Though a person may economic or social loss but if it hadn’t breached any legal person won’t have any recourse in court under tort law. Covered under this characteristic there are two famous cases elaborating the topic. The first of this is Gloucester Grammar School case, in this case the defendant has opened a school in front of already established school which resulted in a decrease in the revenue of already established school, but the already established school have no recourse under Law of torts though there has been economic loss to the established school but there is no violation of any legal right, hence cannot be held liable under torts law, the following case is adequate representation of Maxim Damnum Sine Injuria where there is damage to the party but no legal injury has been done which means no violation of any legal right, hence damage or loss without any legal loss. Thus, the court will not be able to take any action against it.

Click above

The exact opposite of the following Maxim is Injuria Sine Damno where there is a legal injury to the party but no actual or physical harm to the party. This way the party will have recourse to court and seek damages even when they haven’t caused any damages. The most case of the subject is Ashby v. White, in this case, a person was stopped from voting despite his name on the voters list and proof of identity but the person whom he wants to win has won the election hence no loss caused to him but his legal right was violated, hence he was entitled to damages and compensation.

Remedy in the form of Compensation: In torts Law, the remedy is awarded in the form of damages or as unliquidated damages which are calculated by the court on the basis of loss caused. The method is different from what is in the law of contracts where damages are already mentioned in the contract or can be easily calculated according to the agreed terms. Also, from what is in criminal law where punishment is given in the form of imprisonment.

These differences are owing to the nature of law and the objective that they fulfil in the society, such as criminal law wants to create deterrence in the society so it recommends punishment so that it can be set as an example in the society and no one should think of doing it again. Similarly, in contracts law, the purpose is business fulfilment or shape a particular transaction, so they have damages in their requisite forms such as special performance or pre-calculated damages. So is the case in torts law, the case is to restore the parties in their original position owing to this reason the remedy is given in the form of compensation so that the party can be restored to the original position.

Rights are to be fixed by law: To claim a remedy for the violation of rights, the rights should be recognized by the government. These rights can’t be self-declared rights for his own purpose, nor these can be based on the previous consent of the parties. The right should be acceptable by the government and these rights changes according to the needs of the society. The government should recognize there exist duty on the defendant which he has failed to do and caused breached and that breach was proximate for the loss caused otherwise the claim will fail to sustain.

Law of Torts is totally based on precedents: Though precedents play an important role in the development in any law, but in the case, the law of torts is the only source of law. There is a statute or act that specifically deals with the Law of torts. Through this characteristic, the judgements of common law become an important and only source that recognizes these rights as a subject of law.

Torts law is uncodified: Codified laws are laws, which have written statutes and acts on that subject and changes take place by the process of amendment in the parliament , it can be distinguished from uncodified laws which don’t have any written statutes or acts and have to rely on precedents and case laws and change can be possible without the intervention of the government. Thus, the law of torts is totally based on precedent and developed through different case laws, it can be healthily said that law of tort law is uncodified unlike Criminal law and Contract law which are completely codified, and precedents don’t play a major role that it plays in Laws of Torts.

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loyallogic · 5 years

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Definitions of Torts and its Characteristics

Definitions by Various Thinkers

Faeser defines tort as “Tort is an infringement of a right in rem of a private individual giving of compensation at the suit of the injured party”.

Perhaps it is the easiest to begin by saying what it is not.

One of the most important and right allocations of words was done by the Lord Denning of The House of Lords as “the province of tort is to allocate responsibility for injurious conduct”

Section 2(m) Limitation Act of 1963 defines torts as “Tort means a civil wrong which is not exclusively a breach of contract or trust”.

What put torts law outside the box is the unlimited scope and ability to keep on evolving from time to time according to the needs of the society.

Characteristics of tort

Right in rem is not specific to any particular individual, which is the beauty of the Law of Torts, one can sue a person who has breached a right with no relation at all.

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streetphotographycontroversy · 5 years

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Street Shootings: Covert Photography and Public Privacy

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Article: “Street Shootings: Covert Photography and Public Privacy”

Review: Vanderbilt Law Review: Volume 63, Issue 4

Author: Nancy Danforth Zeronda

Published: May 2010

I decided dive into an academic article regarding the privacy aspects of street photography. The article I found was written by Nancy Danforth Zeronda entitled “Street Shootings: Covert Photography and Public Privacy.” My immediate reaction to the title was how I thought there was a bit of humor behind the words public and privacy. To me, public and privacy seems a little contradictory, but I thought that maybe it was a conscious decision by the author to be a little satirical in her selection of words for the title. But, as I read on, I noticed that Zeronda’s stance on the subject was for the privacy of the general public.

Her immediate use of of words describing photographers carried a negative connotation: shootings, hunt, stealth, shooter, prey. She was antagonizing street photographers with the intentional use of those words. “Street photographers, like snipers, pride themselves on stealth. Camouflaged in nondescript clothing, they wander the streets undetectable, armed and on the hunt. When they find their mark, they act quickly… While methods of “trapping prey” vary from shooter to shooter, the mission remains the same- staying as covert as possible and catching an unknowing subject in a candid pose.”

This is what I immediately visualized when reading the academic article:

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Zeronda also details how with modern technology, photographers are granted easier access to more discreet “weapons” that allows them to snap photos of people stealthily. This enables the perversion of many, targeting women and photographing them in a vulnerable state. Within the first three pages of the article, Zeronda discusses the mental suffering, shame and humiliation many women have felt being the subjects of up-skirt photography. (Up-skirt photography is literally a form of photography where people take scandalous photos underneath a woman’s dress or skirt without the consent of the woman.) In fact, there is actually such a demand for up-skirt photography, there are hundreds of websites online dedicated to this genre of photography.

The Right to Privacy has been a long-debated subject in photography. Many jurists have recognized the rights to privacy, yet, “tort law has proved ineffectual at protecting an individual’s public right to privacy in photography cases.” Why? The first amendment protects one’s freedom of speech, religion, assembly, press, and a right to petition. Essentially, the first amendment protects any newsworthy photographs. According to Dean Prosser, these photographs “arises out of the desire and the right of the public to know what is going on in the world, and the freedom of the press and other agencies of information to tell them.” Courts do also often do explain that an individual may lose his or her “reasonable expectation” of privacy the moment that they enter a public space. It is, however very difficult to distinguish public and private spaces, as many street photographers, both contemporary and historical, have taken photos from a public space of private spheres. The line drawn here is a little fuzzy and isn’t plain black and white.

Zeronda discusses a much more serious scenario or street photography: hunter and the prey. Before, whenever I thought about street photography, I thought of it as being more a form of art, I never really saw it as an invitation to perversion. This article shed light onto the fact that street photography can in fact, be both a form of art and an invasion of privacy, depending on the situation. As people know, art has been known to be controversial at times, but where does one draw the line between an artistic statement and just plain deviance?

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myeboooknow · 3 years

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Emanuel Law Outlines for Torts Prosser Wade Schwartz Kelly and Partlett (13th Edition) – eBook PDF

The most favorite name in law school outlines, Emanuel Law Outlines, 13th Edition, (PDF) were developed while Steve Emanuel was a student at Harvard Law and were the first to approach every course from the perspective of the student. Precious for use throughout your course and again at exam time, Emanuel Law Outlines are well-correlated to all key casebooks to help you to make your own outlines.…

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2020law486 · 4 years

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Session 2. Privacy Laws and Data Protection

Privacy and Data Protection

Privacy Rights and Interests

The law on Defamation and the Tort of Malicious Falsehood;

The Protection from Harassment Act;

The law on Breach of Confidence; and

The law on Trespass and Nuisance.

The Development of Privacy Laws in Europe and the United Kingdom

Concepts of Privacy in the United States

Intrusion upon seclusion or solitude, or into private affairs;

Public disclosure of embarrassing private facts;

Publicity which places a person in a false light in the public eye; and

Appropriation of name or likeness.

In some cases, the right to privacy is not only protected and enforced by civil rights of action but are reinforced by criminal law provisions.

Preparatory Instructions:

What are the types of privacy you can think of and how would you compartmentalise privacy-related laws under them?

What is the relationship between data protection and privacy; false and personal information and privacy; and personal image and privacy?

Is privacy a right or an interest and what is the difference? How does it relate to the development and treatment of data protection laws in different jurisdictions?

How has privacy as a right impacted on the way data protection laws developed in a region such as the European Union?

Primary Materials: (For Reference in Class Only)

Protection from Harassment Act (Cap. 256A) [PHA] amended as of 1 January 2020

Cases:

I-Admin (Singapore) Pte Ltd v Hong Ying Ting and others [2020] SGCA 32

Malcomson Nicholas Hugh Bertram and Another v Naresh Kumar Mehta [2001] SGHC 308

Lim Siong Khee v Public Prosecutor [2001] 2 SLR 342; [2001] SGHC 69

Required Readings:

Gilbert Leong et al., Protecting the Right of Publicity under the Personal Data Protection Act, in the PDP Digest 2017 at 293

References:

Chapter 16 – Protection of Privacy Interests in Tort in Gary Chan, The Law of Torts in Singapore (2ed Academy Publishing, 2015) [available in Course Reserves]

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bluewatsons · 4 years

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Nachiket Patel, Learning Lessons: The Libby Zion Case Revisited, 64 J Amer College of Cardiology 2802 (2014)

Resident duty hours have been a point of debate for many years, because fatigue was thought to be the culprit for medical errors.

The Libby Zion case precipitated the movement to restrict and limit work hours for residents. It’s important to ask whether this is truly the only conclusion that should be drawn from the case.

Libby Zion was an 18-year-old college student admitted by a New York City hospital in 1984 with a fever and an earache. Six hours after admission she was dead. The care Libby received included restraints and a narcotic (1). This treatment was administered primarily by an emergency room resident and an intern; an attending physician did not see Libby. Libby’s father, New York Times journalist Sidney Zion, requested an investigation into his daughter’s death, and a grand jury investigation was convened.

The grand jury brought no criminal charges, but instead indicted a medical education system that allowed overtired, unsupervised residents and interns to treat a seriously ill patient with only sedatives and restraints. Among the grand jury’s recommendations were these:

Hospitals should staff emergency departments with physicians who have at least 3 years of training and who are specifically qualified to evaluate patients on an emergent basis.

Junior residents and interns should be supervised by attending physicians at all times.

The New York Department of Health should promulgate regulations limiting the number of hours worked by interns and residents in teaching hospitals (1).

In response to the grand jury recommendations, the New York State Health Department appointed an ad hoc advising committee—the Bell Commission—to make specific proposals to implement the grand jury’s recommendations. The committee received testimony from representatives of several of the most influential organizations responsible for graduate medical education, including the American College of Physicians and American Medical Association (2).

The majority of witnesses who testified before the Bell Commission opposed the imposition of any quantitative restriction on resident hours and proffered several reasons for leaving the existing on-call schedule intact. First, decision-making and execution of complex technical tasks under the duress of extreme fatigue are the “sine qua non” of medical practice. As F. Davidoff, MD, from the American College of Physicians testified, “It would be unrealistic to expect residents to absorb the realities of caring for their equally fragile and needy patients if their working hours were fixed according to an arbitrary schedule, however well intended” (3). Second, continuity of care requires that the same resident who admits or operates on a patient should follow the patient through his or her illness, meaning the resident must not relinquish the case to another physician even after 24 h. According to the testimony of J. Albers, MD, of the American Medical Association: “The care of my patients is enhanced when the physician who initially evaluated them after admission to the hospital cares for them for an extended period of time” (4). Third, the cost of hiring additional nurses, laboratory personnel, and transport personnel would be prohibitive (5).

The Bell Commission issued its recommendations, including the following proposal: “Individual residents who have direct patient care responsibilities in areas other than the ED shall have a scheduled work week which will not exceed an average of 80 h per week over a 4-week period, and should not be scheduled to work as a matter of course more than 24

In 1989, the New York State Health Department incorporated these regulations into its hospital code. The revised regulations recommended that: 1) residents’ work hours must not exceed 80 h/week; 2) residents may not work more than 24 consecutive hours; 3) there may be exceptions to the 24-h shift rule if patient care would be compromised; 4) scheduled rotations must be separated by 8 h off; and 5) residents must be given 1 day off per week (6).

In 1987, the Accreditation Council on Graduate Medical Education (ACGME) appointed a task force on resident hours and supervision to review current educational conditions regarding resident supervision and resident work hours. The imposition of such specific work rules had never before been a part of ACGME’s role. They issued directives to the individual resident review committees, suggesting that the following policies would help to achieve an appropriate educational environment:

Residents should be allowed to spend, on average, at least 1 full day out of 7 out of the hospital.

Residents, on average, should be assigned on-call duty in the hospital with no more frequency than every third night.

There should be adequate backup if sudden, unexpected patient care causes resident fatigue that may jeopardize patient care during or following on-call periods (7).

Review of these recommendations implies that the ACGME task force wanted to allow individual programs significant freedom to determine how they would implement the proposed recommendations. The ACGME, therefore, charged each of the residency review committees to outline specific standards for each specialty, presumably using the limitations. The ultimate impact of the efforts to reduce resident hours nationally remains uncertain. At present, no clear-cut standards exist for the regulation of resident hours. Within an individual residency program, call schedules still vary among various hospital rotations.

As a result, a key question to be addressed for trainees is the potential for expanded liability for the conduct of fatigued residents. Both the discrepancy in standards across the states and among specialties, as well as the possible delay in enforcement or implementation of applicable proposals, may leave resident-physicians exposed to liability.

Negligence is the failure to possess and exercise the requisite degree of skill and knowledge in caring for a patient (8). The standard against which the physician’s performance is measured is established by expert testimony on the accepted principles of diagnosis, management, or therapy for a given med- ical condition. Let us limit the discussion to negligence in terms of resident-physician liability. Assuming a hospital has instituted measures to limit resident hours, can the liability be shifted to the resident if he or she knowingly violates the work duration limit, thereby, absolving the hospital of liability? First, ACGME’s policy to limit resident hours and enforce the policy would be thwarted if the liability were shifted to the resident. Second, the legal doctrine of respondent superior establishes that employers are responsible for the negligent acts of their employees (9). However, the resident might be found negligent for continuing to function in a sleep- deprived state. Such malpractice claims may continue to follow residents through their attempts to become board certified and obtain licensure. The so- bering prospect of bearing liability for mistakes they make when they have exceeded the work time limits should deter residents from ignoring such rules. The personal and professional degradation experienced during malpractice litigation should be another deterrent, even if there is no personal financial responsibility.

The Libby Zion case led to a national crusade to reform the workload of young doctors. Although the exact facts can be difficult to discern long after the event, reports suggest that Libby had a history of depression and cocaine use and that she was admitted to the New York hospital with fever, chills, and agitation (10). Her condition remained undiagnosed, but 2 young doctors gave her a painkiller, sedative, and restraints—a plan that a senior clinician approved over the phone.

Would a senior physician have been able to put the pieces of the Libby Zion puzzle together? The Libby Zion case focused on residents’ sleep deprivation, but missed the white elephant in the room—young, inexperienced doctors should not be expected to make complex diagnoses. That fact is why they are physicians in training in the first place. Sleep deprivation is 1 issue, but the larger issue is the extent of focused oversight and teaching provided in the development of young physicians.

References

Supreme Court of the State of New York, County of New York. Part 50. Report of the Fourth Grand Jury for the April/May Term of 1986 Concerning the Care and Treatment of a Patient and the Supervision of Interns and Junior Residents at a Hospital in New York County. New York, NY: Supreme Court of the State of New York, 1986:50.

Final Report of the Ad Hoc Advisory Committee on Emergency Services. Albany, NY: New York State Department of Health, 1987.

Testimony of F. Davidoff, MD, from the American College of Physicians. New York, NY: Ad Hoc Advisory Committee, 1986.

Testimony of J. Albers, MD, of the American Medical Association. New York, NY: Ad Hoc Advisory Committee, 1986.

Greater New York Hospital Association. Executive summary: manpower and financial considerations. In: Recommendations of the New York State of Health’s Ad Hoc Advisory Committee on Emergency Services, a Preliminary Analysis. New York, NY: Greater New York Hospital Association, 1987.

Official Compilations, Codes, Rules, and Regulations of the State of New York, Title 10. Volume C, & 405.4(b)(6)(ii).

Accreditation Council for Graduate Medical Education. Report of the ACGME Task Force on Duty Hours and Supervision. Summary of actions from: ACGME Meeting; February 8 to 9, 1988; Chicago, IL.

Harvey v Fridley Medical Center, PA, 315 NW2d (Minn 1982).

Prosser WL, Keeton WP, Dobbs DB, Keeton RE, Owen DG. Prosser and Keeton on Torts, 5th edition. St. Paul, MN: West Publishing Co., 1984.

Collins D. A father’s grief, a father’s fight: litigation: in 1984, Libby Zion was hospitalized with an earache and fever—and died. Her dad blames doctors. They blame cocaine. Her death brought new rules—and a lengthy lawsuit. Los Angeles Times. February 1, 1995. Available at: http://articles. latimes.com/1995-02-01/news/ls-26834_1_libby-zion. Accessed November 5, 2014.

#libby zion law #zion v. new york hospital #medical education #litigation #medical malpractice #medical residency #torts

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gravitascivics · 6 years

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TO FAULT OR NOT TO FAULT

Inevitably, from time to time, one does something that causes something else to happen that the person did not intend to happen. Less frequently, when one does such a thing, the unintended effect hurts someone else; the act causes harm. For example, a visitor to a neighbor’s house is carrying an urn of hot sauce, the pet of the house runs across his/her path, and the visitor trips. This results in the hot sauce spilling all over an expensive sofa, staining it. Oh well.

The visitor, who if was on the lookout for the pet, would have avoided the accident. But he/she was not. One can say the pet caused the harm, but surely, the pet did not set out to have that hot sauce all over the couch. One can also argue the visitor caused it. No one, though, would say the visitor was at fault for the harm. Should the visitor be held liable for making the sofa-owner whole? To generalize the question: should a person be held liable for a resultant harm if the person caused the harm, but, as in the example, was not a fault?

This question, one perhaps difficult to answer, was not difficult before the nineteenth century. If a person caused a harm, he/she was held responsible and liable in those earlier days. But, as pointed out in a previous posting, case law – common law – does change. It changes slowly, but it does change and this shift from automatically holding the person who caused a harm liable – called strict liability – to the more commonly held standard today, holding the person who is at fault – called negligence – liable was a profound change.

As alluded to, that shift took hold in the nineteenth century. An historical question is why: why did this nation’s courts begin to prioritize fault over cause? In tort cases – ones that depend on determining fault – there are two types: intentional fault and negligence fault. Here, the focus is on negligence.[1] What is negligence?

To answer that question, a look at one of the establishing cases for this newer standard, is helpful. In Blyth v. Birmingham Waterworks Co., a harmed citizen sued the waterworks company and based the suit on a local statute. The statute incorporated Birmingham Waterworks to supply that city with water. Further, the statute provides language as to how the resulting piping should be maintained.

So, in this case, Blyth is the plaintiff and Birmingham Waterworks is the defendant. The defendant had laid piping near the plaintiff’s house. Due to cold weather, that main leaked and caused damage to the plaintiff’s house. This led to the lawsuit in which the plaintiff accused the defendant of negligence. The court, after hearing the evidence, decided in favor of the plaintiff. In so doing, the court provided what has become the primary definition for negligence:

In Negligence to prove defendant’s fault for liability to be established, the defendant must be in breach of a duty of care … it means that the defendant must do something that a reasonable person would not do, or omit to do something that a reasonable person would do …[2]

Here is another version in more common language:

Negligence is the failure to do something a person of ordinary prudence would do or the taking of an action that a person of ordinary prudence would not take. A mere accident that is not occasioned by the failure to take such an action or the taking of such an action does not qualify as negligence.[3]

This definition brings out certain concepts that will prove to be central in applying the principles of what has become tort law in the years that followed this mid-eighteenth-century case. They include duty and reasonableness.

From a historical perspective, one question becomes central: why do the courts shift in this way, from strict liability to negligence in the mid-1800s? Apparently, chief among the theories explaining the change have to do with the effects of industrialization. Intuitively, this makes sense.

If one thinks about it, industrialization transformed the demographics of the American population. Prior to industrialization, the nation was large and agricultural. Consequently, the population was spread thin throughout the nation’s landscape. Further, such a sparse population finds it rare that people get into what are called joint accidents. It was uncommon for one person to run into another person or to have the situations that lead to accidental and harmful events to occur. When they occurred, accidents most likely happened between or among family members.

Strict liability, when rare accidents took place, satisfied any contention that arose due to any harm. “You did it, you’re responsible” could have summarized how people saw such events. But industrialization changed all that. With the factory system blossoming around the country, the population was drawn into those factories’ locations – denser factory towns sprung up. Also, supporting those developments were the financial centers, like New York or Chicago, and those cities became both industrial centers and supportive service centers. Their populations exploded.

For example, the New York urbanized area experienced the following growth: in 1800, population was 60,000; in 1850, it was 590,000; in 1870, it was 1,443,000; in 1900, it was 3,802,000; in 1930, it was 10,090,000; and in 1970, it was 16,207,000.[4] With those numbers, one can readily visualize the incidence of joint accidents becoming ever more frequent and with that increased frequency, one can also visualize the vast array of factors and conditions leading to those accidents.

Yet strict liability doesn’t much care about such factors in terms of determining fault. Even in the simplest car accident: driver A and driver B run into each other. With strict liability, driver A pays for driver B’s harm and vice versa. One doesn’t ask who was to fault. With industrialization, with the advent of automobiles, for example, strict liability made less sense. If driver A was at fault – perhaps ran a red light – then he/she should pay for all the damages assuming driver B demonstrated no negligence.[5]

So, to answer the question – what to do? – the obvious solution was to introduce the consideration of negligence. And so, one explanation of why strict liability gave way to considering negligence was, as just demonstrated, naturally worked into court decisions over the latter part of the nineteenth-century. But there is another view and Robert J. Kaczorowski reports on this development. He states:

[Morton] Horwitz argues, the original standard of tort liability was not fault but strict liability. He maintains that the fault theory of negligence was not established in tort law until the nineteenth century by judges who sought “to create immunities from legal liability and thereby to provide substantial subsides for those who undertook schemes of economic development.” The modern notion of negligence, then, was incorporated into tort law by economically motivated judges for the benefit of businesses and business enterprises.[6]

One can interpret this view as being a more economic and political explanation. By shifting to a negligence standard, the accusation is that the affecting judges took a pro-business posture and, in effect, began to provide business, especially big business, substantial subsidies. The relevant court decisions allowed and continues to allow large corporation to escape sizable judgements against them.

Today, there is a complex landscape of tort law where there is a mixture of standards. This blog will address some of them. There is a reason why effective lawyers do well in securing high incomes; it is a difficult field in which to practice. That field is composed of a few intentional tort cases – usually treated as criminal matters – a large sector of negligence cases, and a much smaller area of strict liability cases.

This blog will address this tension between strict liability and negligence in, at least, the upcoming posting. It will also look at the tension between malfeasance and nonfeasance, and factual causation and legal causation.

[1] Intentional tort will be addressed in the future.

[2] Following standard citation form for case law: 11 Exch. 781 (1856).

[3] “Blyth v. Birmingham Waterworks Co,” Case Briefs, n. d., accessed September 16, 2018, https://www.casebriefs.com/blog/law/torts/torts-keyed-to-prosser/negligence/blyth-v-birmingham-waterworks-co/ .

[4] “New York Urbanized Area: Population & Density from 1800 (Provisional),” Demographia, n. d., accessed September 16, 2018, http://demographia.com/db-nyuza1800.htm . While the population numbers are estimates, they are based, in part, on Census data.

[5] Or if the accident is no one’s fault, still each driver pays for the other’s damage or harm. With strict liability, fault plays no role in assigning liability.

[6] Robert J. Kaczorowski, “The Common-Law Background of Nineteenth-Century Tort Law,” Fordham Law School, 1990, accessed September 17, 2018, https://pdfs.semanticscholar.org/74ba/0630b8c59bb5fcef22fbffaf96e56b91282f.pdf .

#tort law #civics education

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