Life's Little Law Lessons...
... brought to you today by Mr Heng:
Ear-piercing gone awry - determining if an operator is negligent
MS FELITA Teo Siew Eng's letter, 'Shop staff nonchalant even after ear-piercing for kid went wrong' (Online forum, Oct 24), raises two issues.
a) Is the ear piercer's gun a suitable instrument for piercing a person's ears?
b) Is he liable for a job done that has subsequently gone awry?
It is well-known that gun piercings can cause excess scar tissue. The reason lies in the method of creating the hole. Unlike a needle piercing, guns puncture the skin by brute force. Instead of a sharp object cutting a slit into your skin, studs are dull and put intense pressure on the outside tissue which forces it inside your ear until a hole is made. This blunt trauma is more painful and can cause excess scar tissue and aids in infection. These so-called piercing guns were originally used to tag the ears of dairy cows. Yet many of these shop assistants use a gun to pierce ear cartilage even though this could cause lots of problems - including deformities and shattered cartilage. Many of these guns are not sterile and can spread diseases like hepatitis and HIV.
You can easily get viruses from a simple piercing. At a high-class piercing studio, where everything is sterilised, you will not get such viruses. Also rubbing alcohol does not completely sterilise things. While rubbing alcohol will kill some bacteria it also leaves behind bacteria as well. The only safe method is the use of an autoclave. Autoclaves are expensive 'ovens' that work by using intense heat and pressure.
In the case of Angela M Williams et al v Inverness Corporation (1995), a customer whose ear became infected as a result of ear piercing brought an action against the supplier of a ear-piercing system, asserting claim for negligence under the theory that the supplier held out as its agent a person to whom the system was supplied and who actually performed the ear piercing. The Supreme Judicial Court of Maine held that evidence supported the finding that the supplier held the person out as its agent such that the supplier could be held liable under the theory of apparent agency.
In this case, Margaret Barrera owned and operated a jewellery cart at a shopping mall. She sold items produced by Inverness, a corporation headquartered in New Jersey. Barrera also offered ear piercing using the Inverness Ear Piercing System.
Angela Williams , a 17-year-old high-school student, had visited Barrera's stand on several occasions. In 1991, Angela asked Barrera to pierce her left ear high in the cartilage area. Barrera produced a release form furnished by Inverness and on the form was stated 'the only completely safe, sterile ear piercing method' and in smaller print, the form states that 'ear piercing should be limited to the earlobe area as piercing in the cartilage can result in swelling and infection'. Angela testified that she signed the release form after Barrera pierced her ear and that Barrera did not tell her ear piercing should be limited to the earlobe area.
Within two weeks, Angela's ear swelled, became hot and discharged green pus. She was admitted to hospital where she received intravenous antibiotics. She was discharged after five days but continued intravenous therapy at home.
In tort law, consent may be an excuse and prevent the defendant from incurring liability for what was done. Where a person does ear piercing, there is always a risk of infection which is why a competent ear piercer would always sterilise the needle. Clearly, a duty of care does arise and this is based on the standard of a reasonable skilled person in ear piercing. Where the shop assistant is negligent, the employer may be vicariously liable for the tort committed by his employee.
The test is an objective test, that is, based on an average person. It does not require perfection but takes into account that an average person does not foresee every possible risk. The average person is not assumed to be flawless. Action or omissions of skilled professionals might lead to a tort of negligence. Due to their special education and certification, a higher standard of care is required. This means that if a car mechanic repairs a car, the standard of care required would not be that of a reasonable person but that of a reasonable car mechanic. You cannot reasonably expect a goldsmith's assistant to be as competent as a surgeon in a simple job like ear piercing.
If a person claims to have special skills of a trade or profession, then the standard is the standard of the ordinary reasonable member of that trade or profession, not the ordinary standard of the man in the street. If the defendant acted in accordance with the common practice of others, this will be strong evidence that he has not been negligent (Gray v Stead 1999). The burden of proof is on the claimant to prove that on the balance of probability the defendant was negligent.
The court will decide if the defendant fell below the standard of the reasonable man. In general, the law imposes a duty on everyone to behave at least as carefully as a reasonable, ordinary, prudent person in a similar situation. If a court determines that a defendant had acted reasonably, even though his actions caused injury to another, the defendant is not negligent and not liable for damages. Doctors and surgeons must meet a higher standard of care based on what is recognised as acceptable and appropriate by reasonably prudent health-care providers in similar circumstances.
Heng Cho Choon
Well, it wasn't about medicine, healthcare, or pseudoscience directly, but Mr Heng addressed several principles in tort and liability laws, a subject we have been looking at this past two weeks.
We know that we can expect a higher standard of care from doctors and car mechanics (well, most of them anyway) because there are scientific bases behind their knowledge and training, and that the result of their intervention/services can be measured objectively.
Can the same really be said for feng shui and exorcism?
How do we know whether feng shui 'experts' are really better than the man in the street in detecting flow of qi, or if priests are really better than the man in the street at recognising and exorcising demonic possession?
Or is it a coincidence that both qi and demons happen to be invisible to people like angry doc and you?