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High court splits in hospital negligence suit

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The Indiana Supreme Court split on whether a hospital was negligent in letting a woman with injuries possibly caused by domestic violence leave with her alleged abuser, who killed her on the way home after being discharged. The majority affirmed summary judgment in favor of the hospital and treating physician, but the dissenting justices believed the issues should be up to a judge or jury to decide.

In Ava McSwane, as Personal Representative of the Estate of Malia Vandeneede, et al., v. Bloomington Hospital and Healthcare System and Jean M. Eelma, M.D., No. 53S04-0808-CV-420, Chief Justice Randall T. Shepard and Justices Frank Sullivan and Theodore Boehm affirmed summary judgment in favor of the hospital and Dr. Jean Eelma in a medical malpractice suit filed by Malia Vandeneede's mother, Ava McSwane.

Malia and Monty Vandeneede, Malia's ex-husband with whom she still lived, went to Bloomington Hospital for treatment of what Malia said were injuries after she fell off a horse. Monty never left Malia alone with staff except for a few occasions. Her injuries caused a nurse to believe Malia may have been abused, but Malia denied any abuse. The nurse reported the incident to the surgery nurse on duty. Eelma examined Malia and performed her surgery.

McSwane came to the hospital and told staff she believed Malia had been abused by Monty. At her discharge, a nurse told Malia she didn't have to leave with Monty, but she said she wanted to. On their way home, Monty killed Malia in their car and then himself.

McSwane filed a medical malpractice suit on behalf of Malia's estate against the hospital and Eelma. The trial court granted summary judgment in favor of the defendants. A split Indiana Court of Appeals reversed, finding the hospital owed a duty to Malia.

"It is straightforward enough to say that a hospital's duty of care to a patient who presents observable signs of domestic abuse includes some reasonable measures to address the patient's risk," wrote Chief Justice Shepard.

He noted the hospital took several such actions, including direct suggestions that abuse may be the cause of Malia's injuries and letting her know she didn't have to leave with Monty.

The hospital staff couldn't have physically restrained Malia from leaving with Monty because that would interfere with patient autonomy and informed consent, two touchstones of medical malpractice law, the chief justice wrote.

The majority also affirmed that Malia's insistence on leaving with her ex-husband despite offers by hospital staff and her mother's pleas to stay was negligence that contributed to her injury. The hospital claimed Malia was alert and oriented and capable of making her own decisions when she was discharged, despite being on pain medication.

But these issues should have been presented to a trier of fact, wrote Justice Robert Rucker in his dissenting opinion, with which Justice Brent Dickson concurred.

The record showed that Eelma was never informed of the alleged abuse and may have been able to talk to Malia about it when they were alone and before she was heavily medicated. Justice Rucker also questioned whether Malia could have made reasonable decisions given the amount of drugs in her system after the surgery.

"Thus, a fact-finder should determine whether having received general anesthetic, a relaxant, numerous doses of various opiates for pain, and being advised by Hospital not to make any important decisions, Malia was exercising that degree of care that a reasonable person under the same or similar condition would have been expected to exercise when she decided to leave the hospital with her former husband," he wrote.

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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