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San Diego Law Review

Mark Strasser

Library of Congress Authority File

http://id.loc.gov/authorities/names/n79122466.html http://id.loc.gov/authorities/names/n88640678.html

Document Type

Article

Abstract

The right to bodily integrity is firmly entrenched in the right to privacy jurisprudence. An individual who has that right violated by being subjected to an unwanted touching can sue for damages. For example, an individual who receives medical treatment against her will can bring an action for battery, even if that treatment provides her a net benefit.' Yet, the determination of whether our current system provides either sufficient compensation for the victim of a nonconsensual physical invasion or a sufficient disincentive to possible tortfeasors to prevent such invasions is only possible after the potential damages for such invasions are considered and discussed. Regrettably, the courts have been relatively unwilling to treat cases involving the provision of expressly refused, life-extending medical care in line with the existing jurisprudence in this area, and thus have helped to mute or negate the very protections that are often trumpeted as so important. Until the courts take seriously the protections against the provision of unwanted, life-extending medical care-which are already built into the law-one can only expect studies to continue indicating that medical personnel often provide treatment that has been expressly refused by the patient,2 resulting in patients being forced to endure needless suffering at great cost to themselves and their families. Part II of this Article discusses medical torts, distinguishing between battery and negligence, and the damages that are potentially awarded for each. Part ml discusses claims for wrongful living damages, explaining how some courts have ignored the existing jurisprudence in order to prevent victims from recovering the compensation that they would have received had the long-established jurisprudence been respected. This Article concludes by suggesting that the existing jurisprudence provides the framework for just compensation in many wrongful living cases, but that some modifications may be necessary in certain kinds of cases if victims are to be awarded the compensation that is their due.

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