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. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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