Document Category:
State: Indiana
Subject Matter: McSwane v. Bloomington Hospital and Health-Care System 916 N.E.2d 906 Ind. 2009.
Document Title:
Good Afternoon ~
I just received notice of a new Indiana medical malpractice case which was decided on November 30, 2009, by the Supreme Court of Indiana and thought it might be of some interest to you.  I have attached the case for your review, and offer the following summary:
McSwane v. Bloomington Hospital and Health-Care System, 916 N.E.2d 906 (Ind. 2009).
In late 2002, Malia Vandeneede and Monty Vandeneede, divorced but still living together, arrived at Bloomington Hospital to seek treatment for lacerations on Malia’s thigh and hand.  Malia reported to the nursing staff that she had been thrown from a horse into a pile of brush.  The triage nurse examined Malia in the presence of Monty and suspected that Malia may have been the victim of domestic abuse.  At one point when Monty’s attention was diverted elsewhere, the triage nurse was able to point Malia toward a domestic violence form taped to the desk.  Malia shook her head violently, so the nurse dropped the issue.  The triage nurse reported the situation to the surgery nurse on duty.
An orthopedic surgeon examined Malia, who recounted that her injuries were the result of being thrown off a horse into a brush pile.  Monty was present during the examination, but Malia was alone with the surgeon and nurse on the way to surgery.  While Malia was still in surgery, her mother arrived at the hospital and informed a nurse she believed her daughter had not been in a horse accident, but rather that Monty had assaulted her with a fireplace poker.  Malia’s mother called several law enforcement agencies, but none responded.
In the meantime, as Malia was preparing for release two security guards approached Monty and searched him for weapons and conducted a sobriety test, both of which were negative.  As Malia was being wheeled out of the hospital, a nurse told her that she did not have to leave with Monty.  Malia’s mother pleaded with her not to leave with Monty, but Malia responded in no uncertain terms that she wanted to leave with Monty.  Malia and Monty drove away together.  After driving a few blocks, Monty shot Malia twice killing her, and then he fatally shot himself.  Malia’s mother filed a complaint against Bloomington Hospital alleging that the hospital permitted Malia to leave in Monty’s custody even though they had information suggesting the possibility of further violence.
Medical Providers and Domestic Violence
The Court held that a hospital’s duty of care to a patient who presents observable signs of domestic abuse includes some reasonable measures to address the patient’s risk.  In this instance, the hospital took several actions, including (1) direct suggestions that abuse might be the cause; (2) providing a chance to so indicate outside the earshot of the abuser; (3) security examinations of the suspected abuser; (4) facilitating telephone calls to law enforcement; and (4) declarations that Malia need not leave the hospital with Monty.  While Plaintiff’s counsel did not suggest that the hospital should have physically restrained Malia from leaving the building, it appears plain that there was little else that could have been done to keep her from leaving with Monty.  The Court noted that holding the hospital’s duty encompassed such measures obviously bumps up against patient autonomy and informed consent — two touchstones of medical malpractice law.  Without addressing the issue of whether a hospital’s duty extends to off-premise activities, the Court held that the hospital did not breach any duty and judgment in favor of the hospital was correct.
Contributory Negligence
Indiana medical malpractice cases are specifically excluded from the comparative fault rule in negligence cases, leaving in place contributory negligence which operates as a complete bar to recovery.  Under contributory negligence, a claimant whose own negligence was even slightly causal is barred from recovery.  As such, a court should find a plaintiff contributorily negligent if her conduct falls below the standard to which she is required to conform for her own protection.  See Faulk v. Northwest Radiologists, P.C., 751 N.E.2d 233, 239 (Ind. Ct. App. 2001).  A patient’s failure to provide accurate diagnosing information or failure to seek recommended treatment are examples of such contributory negligence.  See King v. Clark, 709 N.E.2d 1043, 1044045 (Ind. Ct. App. 1999).  In this case, the Court found that Malia’s insistence on leaving with Monty in the face of offers by the hospital staff and pleas by her own mother was negligence that contributed to her injury.
Practical Application/Risk Management
This case sets forth what is considered "reasonable" conduct by a hospital or medical staff in the face of a case of suspected domestic violence or abuse.  Given the findings of this case, and the Court’s close examination of the actions taken by Bloomington Hospital, it would be a good time to review hospital/medical practice policy and protocol to be sure staff members know what steps to take in order to avoid potential liability for off-premises domestic abuse.  It is also important to remember the potential strength of a contributory fault defense in Indiana medical malpractice actions.
If you have any questions or wish to discuss how this case may impact your hospital or medical practice policies, please do not hesitate to give me a call. 

Stephanie F. Holtzlander
2400 Market Tower  |  10 W. Market Street
Indianapolis, IN 46204
T:  317.352.3519  |  F:  317.352.3501

Document Author: Stephanie Holtzlander Esq.
Document Date: December 14, 2009
Search Tags: IN med mal contrbutory negligence
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