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. 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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