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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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