Woman’s suit against hospital for disparaging comments revived by COA

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A trial court erred when it dismissed a woman’s intentional infliction of emotional distress claim filed against Community Hospital after she says staff made derogatory comments regarding her situation after she was brought in unconscious and under the influence of a date rape drug.

On Shacare Terry’s 21st birthday, she consumed a drug associated with date rape at a club. She blacked out and was taken to Community Hospital, where she was treated in the emergency department. An exam noted possible vaginal trauma, but a rape kit was not completed, no evidence was preserved, and staff did not contact police. She was also not told by staff she may have been raped.

While being treated, staff members called her an “addict” and told her they did not like treating addicts. One staff member also wrote “Happy Birthday” next to the doctor’s notation regarding her possible vaginal trauma.

She sued the hospital, alleging breach of duty and intentional infliction of emotional distress. The trial court granted Community’s motion to dismiss, concluding that Terry’s claims sounded in medical malpractice and were subject to requirements of the Act. Since she had not filed them first for review before a medical review panel, the trial court did not have jurisdiction.

This was correct related to her breach of duty care, the Court of Appeals affirmed in Shacare Terry v. Community Health Network, Inc., 49A04-1312-PL-630, because issues about treatment and preserving evidence were made by the physician while acting in his professional capacity as a provider of medical services. Thus her breach of duty claim is, in substance, a medical malpractice claim.

But the Medical Malpractice Act is inapplicable to the facts involving her IIED claim. The comments made to Terry raise a factual issue capable of resolution by a jury without application of the prevalent standard of care in the local medical community. And these statements were not made while acting in a professional capacity as the provider of medical services, Judge Margret Robb wrote.

The case is remanded for further proceedings.


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