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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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