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ATTORNEYS FOR APPELLANT David W. Stone IV Anderson, Indiana Stephen A. Oliver Martinsville, Indiana ATTORNEYS FOR AMICUS CURIAE, INDIANA HOSPITAL ASSOCIATION Angela M. Smith Kimberly A. Emil Indianapolis, Indiana

ATTORNEYS FOR APPELLEES ATTORNEYS FOR BLOOMINGTON HOSPITAL AND HEALTHCARE SYSTEM James L. Whitlatch Holly M. Harvey Bloomington, Indiana ATTORNEYS FOR JEAN EELMA, M.D. Edward J. Liptak Jeremy M. Dilts Bloomington, Indiana

FILED
Nov 30 2009, 3:49 pm
of the supreme court, court of appeals and tax court

Indiana Supreme Court
______________________________ 53S04-0808-CV-00420 AVA MCSWANE, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF MALIA VANDENEEDE AND DANIELLE HAYS BY AVA MCSWANE,

In the

CLERK

Appellants (Plaintiffs Below),
V.

BLOOMINGTON HOSPITAL AND HEALTHCARE SYSTEM,
AND

JEAN M. EELMA, M.D., Appellees (Defendants Below). ______________________________ Appeal from the Monroe Circuit Court IV, No. 53C04-0602-PL-00337 The Honorable Mary Ellen Diekhoff, Judge
____________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 53A04-0705-CV-00243
____________________________________

November 30, 2009 Shepard, Chief Justice. The estate of a domestic violence victim whose former husband killed her on the way home after she insisted on leaving the hospital with him sued the hospital and the treating physician for her death. The trial court granted summary judgment on the basis of lack of duty and contributory negligence. We affirm.

Facts and Procedural History

Judge Mary Ellen Diekhoff has entered an excellent set of findings with her order that describe the circumstances of a serious tragedy.

On the morning of November 25, 2002, Malia Vandeneede and Monty Vandeneede, divorced but still living together, arrived at the Bloomington Hospital to request treatment for lacerations on Malia's thigh and hand. She told the hospital staff she had been thrown from a horse into a pile of brush. Triage nurse Jennifer Powell examined Malia in Monty's presence. Malia refused to request an examination of the laceration on her thigh, and the larger circumstances (like the fact that Malia's jeans were not torn) led nurse Powell to suspect that she might have been the victim of domestic assault. (App. at 220.) At some point when Monty's attention was diverted, Powell used the opportunity to point Malia's attention toward a domestic violence form taped to the desk. (Id.) Malia shook her head violently, so Powell dropped the issue. (App. at 220, 223.) She did report the incident to the surgery nurse on duty.

After some x-rays and other tests, hospital staff referred Malia to Dr. Jean Eelma, an orthopedic surgeon who was on call that day. Dr. Eelma examined Malia, who told her that the 2

injury was the product of falling off a horse into a pile of brush. (App. at 252.) Monty was present during this examination, but not present when Dr. Eelma and a nurse took Malia to surgery. (App. at 254, 482.)

Malia was in the custody of nurses during the early period of her recovery. Later in the recovery period, staff permitted Monty to join her. Nurse Brian Guzik found Malia "alert and oriented." (App. at 120.) Dr. Eelma had written Malia a prescription for Darvocet, but Malia requested that the prescription be rewritten for Oxycontin, saying that Darvocet would not work. (App. at 119, 257.) Guzik called Dr. Eelma to report Malia's request, as well as Malia's statement that if Eelma would not change the prescription she knew a Dr. Nienevor who would. (App. at 119, 258.) Eelma did in fact decline, so nurse Guzik called Dr. Nienevor, who likewise refused to prescribe Oxycontin, and Malia then accepted the prescription for Darvocet. (App. at 121.)

While Malia was still in recovery, her mother Ava McSwane arrived at the hospital and informed a nurse that she believed her daughter had not been in a horse accident at all but rather that Monty had assaulted her with a fireplace poker. (App. at 604, 607.) After some consultation, Ava McSwane called the State Police, the Monroe County Sheriff's Department, the Owen County Sheriff's Department, and hospital security. None of the law enforcement agencies responded.

In the meantime, Malia was preparing for release from the hospital, telling nurse Guzik that she was ready to go home. (App. at 122.) As Guzik, Monty, and Malia left the surgery area, two security guards asked Monty to join them in a nearby hallway, where they conducted a search for weapons and a sobriety test. These were both negative. (App. at 508

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