By Curtis Jones
In McSwane v. Bloomington Hospital and Healthcare System, No. 53S04-0808-CV-420, (Ind. Nov. 30, 2009), the Indiana Supreme Court in a 3-2 decision affirmed summary judgment for a hospital against charges alleging breach of duty when it permitted an individual to leave the hospital with a suspected domestic abuser. Shortly after leaving the hospital the suspected abuser murdered the former hospital patient, and then took his own life. The victim’s estate sued the hospital.
The Court initially noted: “While the existence of a duty is regarded as a matter of law, summary judgment based on application of law to particular facts is rarely suitable.” In McSwane, the Court found the facts to be “suitable.” The Court noted 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.” The measures in this case included: direct suggestions to the patient that abuse might be the cause of her injuries, providing a chance to indicate abuse outside the earshot of the abuser, security examinations of the suspected abuser, calling and notifying law enforcement and advising the patient that she need not leave the hospital with the suspected abuser.
In Dissent, two Justices opined that this issue of duty should have been decided by a jury – not on summary judgment. Interestingly, the Court’s majority opinion stated that this case could be “analyzed by asking whether the hospital, construing the facts favorably to McSwane, has succeeded in demonstrating that it did not breach its duty, a burden rarely but occasionally met as a matter of law.” (emphasis added). In sum, this case was “factually” close and only in time will we learn whether it will become controlling precedent or factually distinguished.