ILNews

Sexual misconduct doesn't fall under MedMal act

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The Indiana Court of Appeals today affirmed a trial court determination that an employee's sexual conduct with a patient can't constitute a rendition of health care or professional services, so a negligent hiring complaint against a hospital based on that conduct doesn't fall under the Indiana Medical Malpractice Act.

In Fairbanks Hospital v. Dan Harrold, Eva Harrold, Natalie Harrold, and Indiana Department of Insurance, No. 49A02-0712-CV-1055, the Court of Appeals had to consider whether a complaint alleging negligent hiring, training, and supervision of a hospital employee falls within the act if the underlying tort allegedly committed by the employee was unwanted sexual advances.

Eighteen-year-old Natalie Harrold was admitted to Fairbanks' adolescent unit for inpatient substance abuse treatment. Adolescent guidance counselor Larry Shears participated in Harrold's care in September 1997. Shears later hugged, kissed, and patted Natalie on her buttocks on more than one occasion and urged her to call him. After she was discharged, Natalie reported Shears behavior; he was later fired.

The Harrolds' filed a complaint with the Indiana Department of Insurance and in Marion Superior Court, including an allegation of negligent supervision against Fairbanks. Fairbanks sought a ruling as a matter of law that the Harrolds' claims fall within the scope of the state's Medical Malpractice Act.

Citing Winona Memorial Hospital, Ltd. Partnership v. Kuester, 737 N.E.2d 824 (Ind. Ct. App. 2000), the appellate court wrote that both allegedly tortious acts - that the hospital was negligent and the employee's alleged negligence - that comprise a patient's claim of malpractice must sound in medical malpractice and not merely ordinary negligence, wrote Judge Ezra Friedlander.

In the instant case, Shears sexual misconduct with Natalie doesn't constitute a rendition of health care or professional services, so a claim based on the conduct doesn't fall under the act, wrote the judge. Because Shear's conduct doesn't fall under the act, the negligence claim against Fairbanks also can't fall within the scope of the act.

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  1. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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