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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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