McSwane v. Bloomington Hosp.

• Court: Indiana Appellate Court
• Writing for the Court: May
• Citation: McSwane v. Bloomington Hosp., 882 N.E.2d 244 (Ind. App. 2008)
• Decision Date: 12 March 2008
• Docket Number: No. 53A04-0705-CV-243.,53A04-0705-CV-243.
• Parties: Ava McSWANE, as Personal Representative of the Estate of Malia Vandeneede, and Danielle Hays by Ava McSwane, Appellants-Plaintiffs, v. BLOOMINGTON HOSPITAL AND HEALTHCARE SYSTEM, Appellee-Defendant, Jean M. Eelma, M.D., Appellee-Defendant.

882 N.E.2d 244

Ava McSWANE, as Personal Representative of the Estate of Malia Vandeneede, and Danielle Hays by Ava McSwane, Appellants-Plaintiffs, v. BLOOMINGTON HOSPITAL AND HEALTHCARE SYSTEM, Appellee-Defendant Jean M. Eelma, M.D., Appellee-Defendant.

No. 53A04-0705-CV-243.

Court of Appeals of Indiana.

March 12, 2008.

David W. Stone IV, Stone Law Office & Legal Research, Anderson, IN, Stephen A. Oliver, Boren, Oliver & Coffey, Martinsville, IN, Attorneys for Appellants.

James L. Whitlatch, Holly M. Harvey, Bunger & Robertson, Bloomington, IN, Attorneys for Bloomington Hospital.

Edward J. Liptak, Jeremy M. Dilts, Carson Boxberger LLP, Bloomington, IN, Attorneys for Jean Eelma, M.D.

OPINION

MAY, Judge.

Bloomington Hospital treated Malia Vandeneede for injuries she said she sustained when she fell off a horse onto some debris. After treatment, she was discharged into her former husband's custody. He killed her on their way home, then killed himself. Ava McSwane, Malia's mother and personal representative, sued the Hospital and Dr. Jean Eelma, who treated Malia, asserting they had a duty to protect her from the domestic violence. The trial court granted summary judgment for the Hospital and Doctor on the grounds they had no duty toward Malia and Malia was contributorily negligent. We affirm the summary judgment for the Doctor but reverse the summary judgment for the Hospital.

FACTS AND PROCEDURAL HISTORY¹

Malia and Monty Vandeneede were married for about a year. They divorced, but continued to live together for another two years. Monty took Malia to Bloomington Hospital for treatment of lacerations on November 25, 2002. Malia told the triage nurse she had fallen off a horse and landed on debris. She had a deep laceration to her palm that "went well into the muscle," (App. at 252), and a deep laceration and puncture to her thigh. She reported arm and wrist pain.

The nurse noted Monty would not let her get close to Malia and he was answering questions for Malia. The nurse noted other "things that started tipping me off maybe that she ... wasn't wearing any underwear, riding a horse, and then the clothing that she was wearing wasn't dirty[.]" (Id. at 220) (ellipses in original). This suggested to the nurse "[j]ust that something was wrong. She probably didn't fall off a horse." (Id. at 221.) At one point when Monty was looking away, the nurse pointed to a "domestic violence piece of paper," (id. at 222), in the triage room so Malia could "see that it was there, and she shook her head violently." (Id. at 223.)

According to McSwane, a Hospital policy "required that suspicions of spousal abuse, after screening, be conveyed to the attending physician."² (Br. of Appellants at 5.) The triage nurse testified that after Malia was taken to see the doctor, the nurse called to "try to alert somebody that I thought something was happening here. And maybe we should get security back there." (App. at 223.) She did not recall to whom she spoke and the Hospital could not identify anyone who received such a call. McSwane directs us to no evidence the triage nurse conveyed any such suspicion to the emergency room physician who next saw Malia.

Malia was in the triage and emergency rooms for about five hours before she was transferred to Dr. Eelma, a surgeon. The emergency room doctor had called Dr. Eelma and told her his patient had some puncture wounds that would need to be sutured in surgery. A surgical nurse felt uncomfortable in the same room with Malia and Monty, because Monty "had a defensive stance, and ... like he was looking right through you." (Id. at 846) (ellipses in original). Malia "seemed to be somewhat guarded. Careful of what she would say ... always aware of exactly where he was ... before she answered anything." (Id.) This caused the nurse to suspect Monty might have been involved in Malia's injury. After Monty went to the waiting room, Malia "stuck to her story" that she had been thrown from a horse, (id. at 847), and that allayed the nurse's concerns.

Dr. Eelma told the surgical nurse Malia's mother had said the injuries did not occur as Malia said they had. The nurse opined to the Doctor it was "not unreasonable to believe what [Malia] was telling us." (Id. at 854.)³ The nurse testified Malia was asleep at the time of that conversation but other hospital employees in the room would have overheard it.

McSwane arrived at the hospital while Malia was being treated and told a nurse Monty had beaten Malia with a fireplace poker. Security was contacted, and McSwane called Monroe and Owen County police, who apparently did not respond. A nurse in the Post Anesthesia Care Unit who attended Malia after surgery was told domestic violence might be involved and security had been called. He found Malia calm and oriented, and Malia told the nurse she wanted to go home. Monty was cooperative and was not coaching Malia. However, that nurse told some co-workers Monty "is actually creeping the hell out of me," (id. at 122), and he suspected Monty might have inflicted the injuries. The nurse noted Monty was "really good at throwing off non-verbal intimidation." (Id. at 124.) Eventually Malia signed the instructions for discharge and said she understood them.

Security accompanied Malia out of the Hospital. The charge nurse told Malia she did not have to leave and could stay at the Hospital. Malia declined. Security officers described Monty as compliant and not threatening. Malia was described as having "her right mind." (Id. at 511.) McSwane pleaded with Malia not to leave with Monty but Malia told her to "stay out of their business." (Id. at 378.) Malia was asked if she wanted to press charges against Monty or leave with him, and she said she wanted to go home.

Soon after Malia was discharged Monty killed her, then committed suicide. McSwane brought a medical malpractice complaint, and McSwane, the Hospital, and Dr. Eelma all moved for a preliminary determination of law.⁴ The Doctor and Hospital moved for and were granted summary judgment.

DISCUSSION AND DECISION

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rhoades v. Heritage Invs., LLC, 839 N.E.2d 788, 791 (Ind.Ct.App.2005), trans. denied 860 N.E.2d 584 (Ind.2006). When reviewing a decision on a summary judgment motion, we stand in the shoes of the trial court. Id. A grant of summary judgment is clothed with a presumption of validity. Id.

A medical malpractice case based on negligence is rarely appropriate for disposal by summary judgment, Mills v. Berrios, 851 N.E.2d 1066, 1070 (Ind.Ct. App.2006), but whether a duty exists on the part of a particular defendant to conform his conduct to a certain standard for the benefit of the plaintiff generally is a question of law. Harris v. Raymond, 715 N.E.2d 388, 393 (Ind.1999), reh'g denied.

1. Dr. Eelma's Duty

McSwane asserts Dr. Eelma had a statutory duty to Malia to report her abuse based on Ind.Code § 35-47-7-1, which provides in pertinent part "every case of a wound which is likely to or may result in death and is actually or apparently inflicted by a knife, ice pick, or other sharp or pointed instrument, shall be reported at once to the law enforcement authorities ... [by] the physician attending or treating the case." (Emphasis supplied.) She quotes James T.R. Jones, Battered Spouses' Damage Actions Against Non-reporting Physicians, 45 DePaul L.R. 191, 247 (1996), for the premise the "statutory negligence doctrine ... generates a special relationship, and hence a duty, where there otherwise might not be one."

McSwane's argument premised on Ind. Code § 35-47-7-1 is waived because it was not raised below and was instead raised for the first time in McSwane's appellate brief.⁵ See Carr v. Pearman, 860 N.E.2d 863, 871 n. 3 (Ind.Ct.App.2007) (appellant who presents an issue for the first time on appeal waives the issue for purposes of appellate review), trans. denied 869 N.E.2d 462 (Ind.2007). We accordingly affirm summary judgment for Dr. Eelma.

2. The Hospital's Duty

The Hospital was not entitled to summary judgment on the ground it had no duty to Malia. Whether there is a specific duty not to discharge a patient to the care of a suspected abuser is a question of first impression. We hold such a duty might sometimes be included in a hospital's general duty of care toward a patient, or in the alternative might arise by virtue of statutory requirements to report abuse of certain endangered adults. Therefore, under the facts before us summary judgment for the Hospital on the ground it had no such duty was error.

Hospitals owe their patients a duty to exercise reasonable care in rendering hospital services; this includes a duty to safeguard the welfare of its patients from harm inflicted by third persons. See generally 41 C.J.S. Hospitals § 35 (2006). A hospital has a duty to protect a patient from dangers that might result from external circumstances peculiarly within the hospital's control. Id. The extent and character of the care a hospital owes its patients depends on the circumstances of each particular case, but is circumscribed by those risks that are reasonably foreseeable. Id.

On the question of a hospital's duty to protect patients from third persons, we find instructive N.X. v. Cabrini Medical Center, 97 N.Y.2d 247, 739 N.Y.S.2d 348, 765 N.E.2d 844 (2002). There N.X., a patient, sued the hospital for injuries she sustained when a surgical resident sexually assaulted her. The Court of Appeals held the patient could not recover under the doctrine of respondeat superior, but found summary judgment precluded by fact issues as to whether nurses who were present at the time of the assault failed to adequately protect N.X. The Court explained the scope of a hospital's duty:

A hospital has a duty to safeguard the welfare of its patients, even from harm inflicted by third persons, measured by the capacity...