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2016/01/26 13:39:25
Subject: Is Harm to a Prosthetic Limb Property Damage or Personal Injury?
According to the law, you and your cell phone are two separate entities. No matter how reliant you might feel on the small, glowing rectangle in your pocket, the distinction is clear: you are a person and your phone is your property. In the same way, the law also sees a separation between a person who is using a prosthetic (such as a bionic limb) and the device itself.
But as new types of prosthetics become available, and the integrations between man and machine become more intimate, the traditional distinctions the law makes are being questioned. This occurred most recently at the University of Oxford’s Human Enhancement and the Law: Regulating for the Future Conference, which explored the legal issues that might arise as a result of developments in human enhancement technologies.
“The legal system provides strong protections for a person’s bodily integrity. By comparison, damage to prosthetic limbs and other non-biological components are likely to be dealt with as property damage,” claim Imogen Goold, Cressida Auckland and Hannah Maslen in a new working paper. But this could be set to change. Their work, supported by the Arts Humanities Research Council (AHRC) Funded NeuroLaw Project, is exploring potential lacunas (holes in the law) and if we might ever need to expand our notions of “personal injury” to include damage to prosthetics and other technologies that some humans have become reliant on.
Today’s prostheses are increasingly integrated with the body and can often be activated by electrical signals from muscles, with more radical examples including direct skeletal prosthesis or “osseointegration” (i.e. a prosthetic that is permanently fused to the bone marrow of the amputee.)
The Oxford-based research team points to a new wave of technologies such as those being developed at Johns Hopkins’ Applied Physics Laboratory. These devices are more “deeply integrated” with the physical body, having been developed alongside advances in neurotechnology, and could enable the user to mentally control their bionic limbs and receive sensory feedback from them.
In their paper Goold, Auckland and Maslen state that, “[I]t is difficult to accurately predict the directions of current research, but it seems clear that prosthetics and implants will improve and become even more integral to the persons for whom they remedy lost functions and capacities.”
As such, the law might need to consider classifying interferences with prosthetic devices in a similar way to assault, battery and invasions of bodily integrity. They argue that, “Legal responses to damage [of a prosthetic] that treat it simply as property damage may be inadequate to fully reflect the wrongdoing, or to compensate that harm.” The difference in sentencing, for example, is stark. “Currently criminal damage to a (detached) prosthetic arm worth less than £5000 may attract up to a 3-month custodial sentence. Damage to a biological arm would be classed as assault occasioning actual bodily harm at the least (maximum 3 years custody) and, depending on the extent of the injury […] could attract far lengthier prison terms.”
In the absence of case law related to these specific issues, the courts might struggle in re-categorising prosthetics since these devices, no matter how integrated they are, are not “biologically human.” They are constructed devices that do not contain the person’s DNA. They were not part of that person at birth. They are also replaceable.
Goold and her team highlight a challenge to this: In some cases, integrations could be considered not only physical and technological, but also psychological. In a 2008 report, researchers led by Adam Saradjian shared some of the subjective experiences of amputees living with prostheses. “Over the years you just get used to them. It’s just like a part of your skin,” one said. Another commented, “I’ve never thought of it. I just think that it’s my arm.”
For these individuals, the prosthesis returns a sense of “wholeness” a “profound embodiment” which is expressed when, as one individual in Saradjian’s study shares, “amputees feel that their artificial limb is somehow part of them, a simple example of this is that I wouldn’t like just anyone putting their hand on my artificial knee, even though it is not actually part of my body’s flesh, it is still mine even though it’s a piece of plastic and metal.”
When prostheses are treated in this way, perhaps they should be considered part of the the “living self”—a body that is otherwise protected by assault, battery, rather than by laws protecting against property damage. Goold told me, “It is important to think about what happens when this eventually comes up. There are currently no sufficient rules to compensate people for possible psychiatric harm, but it will be important to recognise and understand these harms so ensure individuals are compensated sufficiently.”
The subjective responses to these sorts of devices has been challenged in the courts before, in the case of full-body prosthetics. In October 2009, Mr. Collins, a veteran quadriplegic, had his powered mobility assistive device (MAD) damaged by an airline. He was dependent on this device for travel and to protect him against hypotensive episodes. The irreparable damage caused to the device left him bedridden for 11 months while he awaited a replacement. His reliance on the MAD meant that he was unable to independently go about his daily routine and had to hire people to run these errands on his behalf.
Despite this, the airline would only offer compensation of up to $1500—which covered the replacement value of the MAD. The attorney of record on the case, Linda MacDonald Glenn noted, “To the airline, the accident was akin to damaging his car.” In a paper on the subject she wrote, “[the airline] was not aware of the difference between a wheelchair and MAD. [They] kept asking why Mr. Collins could not use a manual wheelchair.” Finally, after a video demonstration, Glenn “helped to explain that the MAD was a prosthetic and operated as an extension of Mr. Collins’ body, functioning as his lower limbs and lower torso muscles. […]. The MAD was an extension of Mr. Collins; by harming his MAD, the harm extended to Mr. Collins.”
The case of Mr. Collins highlights the limitations in the law whereby compensation for property damage is focused on replacement value. Eventually, the airline awarded Mr. Collins $20,000 in damages.
Today the law struggles to classify the range of people who might (either through need or choice) add machine functionalities and capabilities to their body and mind. “We will continually incorporate more and more computer technology into our lives, and ourselves, until we become one with it,” Glenn told me. “Our lawmakers and policymakers need to consider the impact of personhood-property boundaries changing.”
“Interactive prosthetics are changing who we are, physically,” she added. “Who would Stephen Hawking be without his assistive devices?”
As the distinction between the living and the prosthetic body is eroded, new questions are going to be faced, and the law will need to be as malleable as our future bodies.
The poor man really has a stake in the country. The rich man hasn't; he can go away to New Guinea in a yacht. The poor have sometimes objected to being governed badly; the rich have always objected to being governed at all
We love our superheroes because they refuse to give up on us. We can analyze them out of existence, kill them, ban them, mock them, and still they return, patiently reminding us of who we are and what we wish we could be.
"the play's the thing wherein I'll catch the conscience of the king,
2016/01/26 13:55:12
Subject: Is Harm to a Prosthetic Limb Property Damage or Personal Injury?
Anyone thinking that damage to their cell phone is personal harm is nuts (unless it came during or just prior to a 911 call).
But a prosthetic limb, which is basically "your" new arm? Yeah. Yeah...that counts as personal harm. I'm on board with that.
As for the cell phone...example time!
Man swats cell out of your hand into a puddle=property damage.
Man swats cell out of your hand as you're trying to dial 911 to get help while you think you're beginning to suffer a heart attack=personal injury.
Just my view. All based on context and environment in regards to cell. But prosthetics are a legit part of the person's body. Otherwise they're being discriminated. And I do not want to live on a planet that discriminates against cyborgs!
Reality is a nice place to visit, but I'd hate to live there.
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2016/01/26 14:55:58
Subject: Is Harm to a Prosthetic Limb Property Damage or Personal Injury?
If the item is paid for or partially covered by your medical coverage for your health, I think there is a strong case for it to be personal injury, not property. Especially items which require prescriptions.
This message was edited 1 time. Last update was at 2016/01/26 14:56:33
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2016/01/26 14:56:01
Subject: Is Harm to a Prosthetic Limb Property Damage or Personal Injury?
Personally.... I think if you're a person actively using a prosthetic, and someone damages it, it's personal damage. If someone damages it while you're not wearing it, it's property damage
So, I guess in that weird comic book sort of way, a bad guy beating up the hero with his own wooden leg would count as both property and personal damage??
2016/01/26 15:10:55
Subject: Is Harm to a Prosthetic Limb Property Damage or Personal Injury?
Ensis Ferrae wrote: Personally.... I think if you're a person actively using a prosthetic, and someone damages it, it's personal damage. If someone damages it while you're not wearing it, it's property damage
I agree.
Jerry dislikes Paul.
Jerry gets a baseball bat.
Jerry wails on Paul.
Jerry breaks Pual's Prosthetic Leg in the process of beating Paul.
Jerry dislikes Bert
Jerry gets a baseball bat
Jerry wails on Bert
Jerry breaks Bert's regular leg in the process of beating Bert.
in both cases jerry is dangerous man who attacks people with baseball bats. That the first guy just happened to already have lost his leg in a wheat thresher accident has no bearing on the severity of Jerry's actions.
Steve dislikes Paul
Steve gets a baseball bat
Steve breaks Paul’s expensive prosthetic leg that was resting on a surface.
Steve dislikes Bert
Steve gets a baseball bat
Steve smashes Bert's expensive electronics that were resting on a surface.
In both cases steve is a violent donkey-cave who likes to smash people's stuff with baseball bats. That the most expensive thing he could find to break for the first guy was his leg doesn't really change any of that.
This message was edited 3 times. Last update was at 2016/01/26 15:13:31
2016/01/26 15:35:39
Subject: Is Harm to a Prosthetic Limb Property Damage or Personal Injury?
Jerry dislikes Paul.
Jerry gets a baseball bat.
Jerry wails on Paul.
Jerry breaks Pual's Prosthetic Leg in the process of beating Paul.
Jerry dislikes Bert
Jerry gets a baseball bat
Jerry wails on Bert
Jerry breaks Bert's regular leg in the process of beating Bert.
Fair enough.
But what happens if -- for example -- Paul's prosthetic leg can be easily and simply replaced -- an off the shelf model or whatever -- ?
Is the crime as serious still ?
FWIW I'm inclined to agree with the earlier sentiments about a limb "counting as" a normal limb in most circumstances.
But one can see how situations could develop where this could be argued.
The poor man really has a stake in the country. The rich man hasn't; he can go away to New Guinea in a yacht. The poor have sometimes objected to being governed badly; the rich have always objected to being governed at all
We love our superheroes because they refuse to give up on us. We can analyze them out of existence, kill them, ban them, mock them, and still they return, patiently reminding us of who we are and what we wish we could be.
"the play's the thing wherein I'll catch the conscience of the king,
2016/01/26 16:10:49
Subject: Is Harm to a Prosthetic Limb Property Damage or Personal Injury?
Interesting debate. I suppose this makes the difference between a misdemeanor and a felony. What we're arguing here is how stiff the penalty should be, no? However, the cost of the item destroyed can make the argument irrelevant.
For example, in IL you can get jail time and a stiff penalty in either case:
Property Damage.
Spoiler:
Criminal Damage to Property – Class A misdemeanor You will face Class A misdemeanor charges of criminal damage to property if the damage done is valued at less than $300. A Class A misdemeanor carries a potential sentence of one year in jail and fines of $2,500.
Criminal Damage to Property – Class 4 Felony The charge you face will be a Class 4 felony if the damage is more than $300 but less than $10,000, or if the damage is committed against a school, place of worship, or to farm equipment and is valued at less than $300. A Class 4 felony can carry up to 1 to 3 years in prison and $25,000 in fines.
Criminal Damage to Property – Class 3 Felony Class 3 felony criminal damage to property is committed when the property damage is valued at between $10,000 and $100,000, or if the property in question was a place of worship, school, or farm equipment and the damage is vaued at between $300 and $10,000.
Class 3 felonies carry a potential penalty of 2 to 5 years in prison and fines reaching $25,000. Criminal Damage to Property – Class 2 Felony
You will face Class 2 felony charges of criminal damage to property if the damage is valued at more than $100,000 or if the damage is done to a school, place of worship, or farm equipment and the damage is valued at $10,000 to $100,000.
A Class 2 felony carries a sentence of 3 to 7 years in prison and fines up to $25,000.
Criminal Damage to Property – Class 1 Felony If the damage is done to a place of worship, a school, or farm equipment and the damage is valued at more than $100,000. If charged with this offense, you face a potential penalty of 4 to 15 years in prison and fines reaching $25,000.
Bodily Harm
Spoiler:
Penalties for Aggravated Assault and Battery in Illinois
An aggravated assault can be a Class A misdemeanor or a Class 3 or Class 4 felony, depending on the circumstances and the identity of the victim.
An aggravated assault involving the use of a firearm against certain victims, or the discharge of a firearm usually is categorized as a Class 3 felony.
An aggravated battery is a Class 3 felony except in certain cases in which it can be a Class X, 1, or 2 felony, depending on the circumstances, the weapon involved, and the identity of the victim. Penalties for a Class 3 felony
two to five years imprisonment (or five to ten years if the court finds aggravating factors) mandatory minimum of ten days imprisonment or 300 hours community service if the aggravated assault is committed against a family or household member in the presence of a child a fine up to $25,000 probation for up to thirty months or more, and restitution.
(730 Ill. Comp. Stat. §§ 5/5-4.5-40, 5/5-4.5-50, 720 Ill. Comp. Stat. § 5/12-3.2.) Penalties for a Class 2 felony
three to seven years imprisonment (or seven to 14 years if the court finds aggravating factors) a fine up to $25,000 probation for up to four years or more, and restitution.
(730 Ill. Comp. Stat. §§ 5/5-4.5-35, 5/5-4.5-50.) Penalties for a Class 1 felony
four to 15 years imprisonment (or 15 to 30 years if the court finds aggravating factors) a fine up to $25,000 probation for up to four years or more, and restitution.
(730 Ill. Comp. Stat. §§ 5/5-4.5-30, 5/5-4.5-50.) Penalties for a Class X felony
Probation is not allowed for Class X felony convictions. The possible penalties are:
Six to 30 years imprisonment (or 30 to 60 years if the court finds aggravating factors, and six to 45 years if the crime involved the use of a caustic, flammable, or poisonous substance or gas, or an explosive and caused great bodily harm or permanent disfigurement or disability) a fine up to $25,000, and restitution.
(730 Ill. Comp. Stat. §§ 5/5-4.5-25, 5/5-4.5-50.)
This message was edited 1 time. Last update was at 2016/01/26 16:11:27
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2016/01/26 16:14:34
Subject: Is Harm to a Prosthetic Limb Property Damage or Personal Injury?
Kilkrazy wrote: I don't think it's a new idea. If you shorted out someone's pacemaker and they died, it would be manslaughter not property damage.
I don't know if that works. By that same measure you could crush someone's helmet while they are wearing it, or blow up a building while they are in it. The destruction of the object leads to death because there is a person depending on it, but that doesn't make the object a part of their body.
timetowaste85 wrote: Anyone thinking that damage to their cell phone is personal harm is nuts.
Maybe in a few years when they start wiring them into our heads, it will be different.
We'd better start arguing about it now, just in case....
This message was edited 2 times. Last update was at 2016/01/26 16:15:44
2016/01/26 16:25:21
Subject: Is Harm to a Prosthetic Limb Property Damage or Personal Injury?
But what happens if -- for example -- Paul's prosthetic leg can be easily and simply replaced -- an off the shelf model or whatever -- ?
Having a friend with a prosthetic leg, I will tell you that there's no such thing as an "off the shelf" model. Basically, when you get one, they have to custom mold everything to the end of your natural body for fit and comfort. Normally, once the first one is made, your body and the prosthetic sort of meld together forming a "better" bond (think of how, if someone breaks their arm and has a cast put on.... when the cast is removed, the arm is perfectly shaped like the interior of the cast because it's been pushing against it for the last 6 weeks).
A lot of these things are made with carbon fiber or fiberglass or other composite type materials, so it's not as simple as printing out part 22.144b and attaching that to "a" leg or whatever.
2016/01/26 16:41:17
Subject: Is Harm to a Prosthetic Limb Property Damage or Personal Injury?
But what happens if -- for example -- Paul's prosthetic leg can be easily and simply replaced -- an off the shelf model or whatever -- ?
Having a friend with a prosthetic leg, I will tell you that there's no such thing as an "off the shelf" model. Basically, when you get one, they have to custom mold everything to the end of your natural body for fit and comfort. Normally, once the first one is made, your body and the prosthetic sort of meld together forming a "better" bond (think of how, if someone breaks their arm and has a cast put on.... when the cast is removed, the arm is perfectly shaped like the interior of the cast because it's been pushing against it for the last 6 weeks).
A lot of these things are made with carbon fiber or fiberglass or other composite type materials, so it's not as simple as printing out part 22.144b and attaching that to "a" leg or whatever.
Exalted.
There's really no such thing as an "off the shelf" prosthetic. Even the simplest ones today are pretty damn customized to the user.
One would suggest it's not totally unrealistic to think that one day soon(ish) people might have more advanced prosthetics -- even by choice perhaps -- and that these might well be far more " off the shelf" than they currently are.
The poor man really has a stake in the country. The rich man hasn't; he can go away to New Guinea in a yacht. The poor have sometimes objected to being governed badly; the rich have always objected to being governed at all
We love our superheroes because they refuse to give up on us. We can analyze them out of existence, kill them, ban them, mock them, and still they return, patiently reminding us of who we are and what we wish we could be.
"the play's the thing wherein I'll catch the conscience of the king,
2016/01/26 17:30:34
Subject: Is Harm to a Prosthetic Limb Property Damage or Personal Injury?
One would suggest it's not totally unrealistic to think that one day soon(ish) people might have more advanced prosthetics -- even by choice perhaps -- and that these might well be far more " off the shelf" than they currently are.
Agreed on that count. I know from this same friend that the prosthetic industry is always evolving and always coming up with new stuff.
2016/01/26 17:33:39
Subject: Is Harm to a Prosthetic Limb Property Damage or Personal Injury?
Surely the distinction has to be about how integrated the device is and what other harm damage to it causes?
Consider for a moment a detachable hand. If said had was at the time of damage, detached, would anyone consider it 'bodily harm'? Especially if the owner had another hand attached (perhaps swaps them to recharge the internal battery or something)?
Even a pacemaker being damaged would still be property damage (to the device itself) but the consequence would be akin to damaging someone's life support equipment- manslaughter or murder since the outcome is fairly obvious.
Could it be both? In the sense that there could be a criminal act if the intent was to harm the person (e.g. assault occasioning, manslaughter, etc.) or damage the prosthetic (criminal damage) AND a civil action for loss (personal injury claim, negligence, battery with associated claims for damages). It's also worth noting the 'eggshell skull rule' in the criminal law in UK and Australia. The rule essentially means that if you have to take the victim as they come - for example, if you punch someone in the head with the intent just to scare them, but they have an extraordinarily weak skull and you kill them, you can't plead that you only intended to scare them or that it's not your fault that they have weak bones. I guess that, by analogy, you could extend this rule to where you damage someone's prosthetic and it causes them more harm. It's also worth noting that there is a form of criminal negligence, which might also be extended to causing harm via prosthetics, if you're so reckless/indifference to the potential for harm. Hence the warnings around x-ray machines and pacemakers.
Thus, in the example you've cited above with the MAD chair, there'd be no criminal act (no intent) - rather, you'd be actioning a claim of negligence to recover the costs of the MAD chair as well as associated damages for pain, suffering and loss of amenity.
This message was edited 2 times. Last update was at 2016/01/27 01:19:00
2016/01/27 01:34:02
Subject: Is Harm to a Prosthetic Limb Property Damage or Personal Injury?
What about prosthetics that if damaged, entirely remove an essential bodily function? Does that change the consideration?
I am not saying loss of an arm or leg is dismissible, there is dignity, freedom and sense of self tied up in them.
But I mean things for senses or maintenance, like ears (total hearing loss if destroyed), partial lower jaws (inability to feed oneself), urinary devices such penile prosthesis, or cases where loss removes the victims remaining arm or leg, leaving them helpless.
I agree with the proposition that if the prosthetic is attached to you then damage to it is personal injury.
It can be property damage too, since it will need to be repaired or replaced. People get compensation for injuries that heal naturally (or don't heal, e.g. lost eye.)
If someone attacks a person, it's an assault whatever part of the target they might hit. For example if someone hits me in the back when I am wearing a rucksack, and they whack the rucksack rather than manage to hit my back, it is still an assault.
If someone attacks a person, it's an assault whatever part of the target they might hit..
It's also still an assault if they miss the person entirely. To that end, if someone attacks you with a deadly weapon, it's an assault with a deadly weapon (or attempted murder) whether they hit your real arm, your prosthetic arm, or nothing at all.
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