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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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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