Friday, 6 June 2008

US: Release of DV victim from hospital can lead to hospital being sued

In a recent US case of McSwane v Bloomington Hospital and Healthcare System,
Malia and Monty Vandeneede were married for about a year. They divorced, but continued to live together for another two years. In 2005 Monty took Malia to Bloomington Hospital for treatment of lacerations. The hospital treated Malia for injuries she said she sustained when she fell of a horse onto some debris. The triage nurse noted that Monty would not let her get close to Malia and he was answering questions for her. The nurse noted other things that tipped her off that Malia’s injuries were not sustained from horse riding- Malia was not wearing underwear and her clothes were clean.

According to hospital policy, suspicions of spousal abuse after screening must be conveyed to the attending physician. There was no evidence that the triage nurse conveyed any suspicion to the emergency room physician who next saw Malia: Dr. Eelma, a surgeon. The surgical nurse noticed Monty’s defensive stance and suspected that Monty was involved in Malia’s injuries, however, Malia stuck to her story. Dr. Eelma told the surgical nurse that Malia’s mother, Ava McSwane, had reported that the injuries did not occur as Malia had stated. McSwane told a nurse that Monty had beaten Malia with a fireplace poker.

A nurse in the post-anaethesia care unit was told that domestic violence might be involved and that security had been called. The nurse noted that Malia was calm,and wanted to go home. Although Monty was calm, the nurse felt Monty was "creeping me out" and Monty was “really good at throwing off non-verbal intimidation.” The nurse suspected that Monty was the cause of the injuries.

Security took Malia to her car. The offer was made for her to stay in the hospital. She refused. Monty was compliant and not threatening.Malia's mother, McSwane pleaded with Malia not to leave with Monty but Malia told her to “stay out of their business.” 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, and then committed suicide. McSwane, Malia’s mother and personal representative, sued the hospital and Dr. Eelma, who treated Malia, asserting they had a duty to protect her from domestic violence. The trial court granted summary judgment for the hospital and Dr. Eelma on the grounds they had no duty toward Malia, and that Malia was contributorily negligent.

The appellate court affirmed the summary judgment for Dr. Eelma on a procedural technicality, but found that the hospital was not entitled to summary judgment, on the ground that it may have had a duty of care to Malia.

The court said: "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."

"There was evidence before the trial court that Malia was, in the space of a few hours while she was at the Hospital, given a general anesthetic, a relaxant, and numerous doses of various opiates for pain, and was advised by the Hospital not to make any important decisions. As explained below, this gives rise to a genuine issue of material fact as to whether her “mental condition and/or physical incapacities” were properly taken into account in addressing her contributory negligence."

"A hospital['s] ...independent duty to safeguard its patient from dangers that might result from circumstances within the hospital’s control extends to the discharge of a patient into the custody of the person who allegedly inflicted the injuries that necessitated her hospitalization. The Hospital therefore should not have been granted summary judgment on the ground it owed Malia no duty. In light of the conflicting factual inferences as to Malia’s contributory negligence, summary judgment for the Hospital on that ground was also improper."

This case is the latest in a series, starting with Tarasoff, in which doctors have been held in US courts to owe a duty of care to patients who are the subject of domestic violence, and a breach of that duty of care may lead to a damages claim. By virtue of smaller numbers, these claims, as far as I am aware, have not yet been brought in Australia. It is only a question of time.

No comments: