ILNews

Majority: hospital owed duty to patient

Jennifer Nelson
January 1, 2008
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Indiana Court of Appeals judges were split in their decision March 12 regarding whether a hospital that performed a surgery on a woman with suspected domestic violence injuries should have prevented her from leaving with her ex-husband and alleged abuser, who later killed both of them on the way home from the hospital.

At issue in Ava McSwane and Danielle Hays v. Bloomington Hospital and Healthcare System and Jean M. Eelma, M.D., No. 53A04-0705-CV-243, is what duty the hospital owed to McSwane's daughter, Malia Vandeneede, once it suspected she came to the hospital with injuries as a result of domestic abuse.

Malia's ex-husband, Monty Vandeneede, brought Malia to Bloomington Hospital to receive treatment for injuries she claimed were from a fall from a horse, which would require surgery.

A nurse treating Malia suspected the injuries weren't from a fall and noticed Monty answered many questions for Malia. She discreetly asked Malia if she was a victim of domestic abuse, which Malia denied.

McSwane came to the hospital during Malia's surgery and told a nurse the ex-husband had beaten Malia with a fireplace poker; McSwane said she called police, who didn't respond to the call. Security was called to accompany Malia out of the hospital. She declined to remain in the hospital and chose to leave with her ex-husband, causing an argument between her and her mother. On the way home from the hospital, Monty killed Malia and then committed suicide.

McSwane brought a medical malpractice suit against the hospital and Dr. Eelma, Malia's surgeon. Eelma and the hospital were granted summary judgment at the trial court level.

The majority of judges affirmed summary judgment in favor of Eelma because McSwane first raised on appeal that Eelma had a statutory duty under Indiana Code 35-47-7-1 to report Malia's abuse, which required the issue to be waived for appellate review.

The judges were split on whether Bloomington Hospital owed a duty to Malia to protect her from a suspected abuser. Authoring Judge Melissa May and Judge Margret Robb believed the hospital should not have been granted summary judgment because of genuine issues of fact regarding the evidence in the case. There may be occasions when the hospital has a duty to not discharge a patient to the care of a suspected abuser, and that duty may arise from the hospital's general duty of care toward the patient or by virtue of statutory requirements to report abuse of endangered adults, wrote Judge May.

Hospitals owe a duty to protect their patients, even from people who are not employed by or affiliated with the hospital. May cited N.X. v. Cabrini Medical Center, 765 N.E.2d 844 (N.Y. 2002), where nurses observed behavior that had it been reported, may have prevented a sexual assault of a patient by a doctor. As in N.X., there is designated evidence that nurses observed conduct and information that could have alerted the hospital there was a risk of harm to Malia.

The majority also cited Breese v. State, 449 N.E.2d 1098 (Ind. Ct. App. 1983), in which a man committed suicide while admitted to a hospital despite pleas from his family to not leave the man unattended.

"We believe a hospital's duty of reasonable care requires consideration of evidence its patient is a victim of domestic abuse, just as it requires consideration of 'the physical and mental ailments of the patient which may affect his ability to look after his own safety.' Summary judgment for the Hospital in the case before us on the ground it owed Malia no duty was error," wrote Judge May.

In addition, Malia had been given several drugs during her admittance, during her surgery, and to ease her pain, so her state of mind to make the decision to leave with her ex-husband may have been clouded and rendered her an "endangered adult" under Indiana statute.

A hospital has a duty to report suspected abuse of an endangered adult and an independent duty to protect its patients from dangers that may result from circumstances in the hospital's control, she wrote, and that extends to discharging a patient to an alleged abuser. The hospital should not have been granted summary judgment.

In his dissent, Chief Judge John Baker wrote Malia repeatedly denied being abused and testimony from the record shows Malia was coherent, competent and in no way incapacitated when she decided to leave with her ex-husband. Various people in the hospital testified she and her mother had a heated argument about her leaving with the ex-husband, so there is no evidence on the record to show she was incapacitated and qualified as an endangered adult. If her own mother couldn't get her to stay or leave with someone else, and the hospital security guards and police couldn't do anything, what evidence on the record shows the hospital could have prevented Malia from leaving, he wrote. Under these circumstances, it's unfair and unjust to say the hospital faces potential liability for its actions, he wrote.

"To require the Hospital to guarantee the safety of its patients after they walk out of its doors is to raise a host of impossible questions - should the Hospital have forced Malia into a locked room? Placed her in restraints? Drugged her? How far does this duty extend - if Monty had killed Malia a week after her Hospital visit, would that still fall in the scope of the Hospital's duty of care?" wrote Chief Judge Baker.
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  1. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

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  3. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

  4. JLAP and other courtiers ... Those running court systems, have most substance abuse issues. Probably self medicating to cover conscience issues arising out of acts furthering govt corruption

  5. I whole-heartedly agree with Doug Church's comment, above. Indiana lawyers were especially fortunate to benefit from Tom Pyrz' leadership and foresight at a time when there has been unprecedented change in the legal profession. Consider how dramatically computer technology and its role in the practice of law have changed over the last 25 years. The impact of the great recession of 2008 dramatically changed the composition and structure of law firms across the country. Economic pressures altered what had long been a routine, robust annual recruitment process for law students and recent law school graduates. That has, in turn, impacted law school enrollment across the country, placing upward pressure on law school tuition. The internet continues to drive significant changes in the provision of legal services in both public and private sectors. The ISBA has worked to make quality legal representation accessible and affordable for all who need it and to raise general public understanding of Indiana laws and procedures. How difficult it would have been to tackle each of these issues without Tom's leadership. Tom has set the tone for positive change at the ISBA to meet the evolving practice needs of lawyers of all backgrounds and ages. He has led the organization with vision, patience, flexibility, commitment, thoughtfulness & even humor. He will, indeed, be a tough act to follow. Thank you, Tom, for all you've done and all the energy you've invested in making the ISBA an excellent, progressive, highly responsive, all-inclusive, respectful & respected professional association during his tenure there.

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