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Court upholds dismissal of battery claim against medical student

Michael W. Hoskins
January 1, 2007
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An emergency medical technician student sued for battery after incorrectly performing a procedure on a patient did not commit battery, the Indiana Supreme Court has decided.

The 5-0 decision came in W. Ruth Mullins and Johnce Mullins, Jr. v. Parkview Hospital, Inc., et al., http://www.in.gov/judiciary/opinions/pdf/05020701fsj.pdf, No. 02S04-0608-CV-292, reversing a Court of Appeals decision that the student had battered patient Ruth Mullins, who was undergoing a hysterectomy in 2000 at Parkview Hospital in Fort Wayne. During the procedure, the student, LaRea VanHoey, performed an intubation and lacerated her esophagus, despite Mullins' lack of consent to have a student in the operating room. She had a second surgery to correct the procedure.

A medical review panel dismissed a subsequent malpractice action against the hospital and surgeons and, because the Indiana Malpractice Act doesn't apply to students, the Mullins initiated this battery claim against VanHoey and the other parties.

The trial court granted summary judgment to all defendants because of no evidence the student intended harmful contact with the patient, but the Court of Appeals reversed that decision in June 2005 to all defendants except Parkview Hospital. The court held that the couple had sufficiently stated a battery claim against the student and physicians.

"We disagree," Justice Frank Sullivan wrote in Wednesday's decision, relying on the Restatement (Second) of Torts §13 (1965), which provides in part that an actor is "subject to liability to another for batter if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact."

Justice Sullivan wrote, "Because there is no genuine issue of material fact as to VanHoey's intent to cause a harmful contact with Ruth (Mullins), VanHoey was entitled to summary judgment on the Mullinses' battery claim."
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