ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES

David W. Stone IV ATTORNEYS FOR BLOOMINGTON 

Anderson, Indiana HOSPITAL AND HEALTHCARE 

SYSTEM

Stephen A. Oliver

Martinsville, Indiana James L. Whitlatch

Holly M. Harvey

ATTORNEYS FOR AMICUS CURIAE, Bloomington, Indiana

INDIANA HOSPITAL ASSOCIATION

ATTORNEYS FOR JEAN EELMA, M.D.

Angela M. Smith

Kimberly A. Emil Edward J. Liptak

Indianapolis, Indiana Jeremy M. Dilts

Bloomington, Indiana

In the

Indiana Supreme Court

______________________________

53S04-0808-CV-00420

AVA MCSWANE, AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF

MALIA VANDENEEDE AND

DANIELLE HAYS BY AVA MCSWANE,

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

____________________________________
2

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 
3

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 508–09, 538.)

As Malia was being wheeled out of the hospital, nurse Jennifer Perantoni told her that she 

need not depart with Monty. (App. at 477.) Malia’s mother pleaded with her not to leave with 

Monty. Malia responded in no uncertain terms that she wanted to leave with Monty. (App. at 

614.) “Stay out of our business,” she said. (App. at 378.)
4

Malia and Monty drove away together. They had gone but a few blocks when Monty 

shot Malia twice, killing her, and then killed himself as well.

McSwane filed a complaint for medical malpractice on behalf of Malia’s estate and on 

behalf of her daughter against Bloomington Hospital and Dr. Eelma. The complaint alleges that 

the defendants permitted Malia to leave the hospital in the custody of Monty even though they 

had information suggesting the possibility of further violence. The defendants sought a 

preliminary determination of law in the Monroe Circuit Court, in the nature of summary 

judgment. The estate filed a cross-motion for summary judgment.

The trial court granted judgment for the defendants, and they appealed. A divided 

Indiana Court of Appeals reversed. McSwane v. Bloomington Hosp., 882 N.E.2d 244 (Ind. Ct.

App. 2008). We granted transfer, 898 N.E.2d 1217 (Ind. 2008) (table).

Standard of Review

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. Ind. Trial Rule 56. We construe all 

facts and reasonable inferences drawn therefrom in a light most favorable to the non-moving 

party. Although the non-moving party has the burden on appeal of persuading us that the grant 

of summary judgment was erroneous, we “carefully assess the trial court’s decision to ensure 

that he was not improperly denied his day in court.” Blake v. Calumet Const. Corp., 674 N.E.2d 

167, 169 (Ind. 1996); Wisniewski v. Bennett, 716 N.E.2d 892, 894 (Ind. 1999). 

Medical Providers and Domestic Violence

As counsel for McSwane properly observes, the elements of a claim for medical 

malpractice are the same as for any other claim for negligence. The claimant must show that the 
5

defendant owed her a duty of care at the time the injury occurred, that the defendant’s behavior 

did not conform to that standard of care, and that the claimant’s injuries were proximately caused 

by the breach. 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.

The parties have largely argued this appeal based on the trial court’s finding that there 

was no duty and that the claim is barred by contributory negligence. McSwane argues that a 

duty existed on three grounds: that the hospital had assumed a duty to its patients, that the 

possibility of injury was foreseeable, and that public policy supports legal imposition of a duty.

The hospital has argued that its duty to McSwane did not extend to protecting her from 

harm caused by Monty off its premises. It counters McSwane’s argument about assumption of 

duty, which rests on the hospital’s implementation of an internal domestic violence policy, by

noting that there is no indication McSwane relied upon or knew about its policy. Cf. Ward v. 

First Ind. Plaza Joint Venture, 725 N.E.2d 134, 137 (Ind. Ct. App. 2000). It cites the downside 

of imposing duties based on an actor’s adoption of protocols designed to protect patrons, Lawson 

v. Lafayette Home Hospital, 760 N.E.2d 1126, 1129–30 (Ind. Ct. App. 2002), namely, the risk 

that doing so will discourage adoption of prophylactic measures.

The parties’ debate over assumed duty seems unnecessary. It is straightforward enough 

to say 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 hospital in this instance

took several such actions, including direct suggestions that abuse might be the cause, providing a 

chance to so indicate outside the earshot of the abuser, security examinations of the suspected 

abuser, facilitating telephone calls to law enforcement, and declarations that Malia need not 

leave the hospital with him.

While counsel for McSwane argues that the hospital’s failure to separate its patient from 

her ex-husband so that she could safely report his attack, Appellant’s Reply Br. at 4, the record 

reflects that the hospital did keep them apart on multiple occasions. While counsel does not 

suggest that the hospital should have physically restrained Malia from leaving the building, it 
6

appears plain that little short of that would have kept her from leaving with Monty. Holding that 

the hospital’s duty encompassed such measures obviously bumps right up against patient 

autonomy and informed consent, two touchstones of medical malpractice law. See, e.g., Auler v. 

VanNatta, 686 N.E.2d 172 (Ind. Ct. App. 1997) (treatment without informed consent may be 

negligence); Ind. Code § 16-36-1-3(a)(1) (2008) (adult patients presumed capable of directing 

their own healthcare). 

While the parties and the trial court have analyzed this aspect of the case through debate 

over extent of duty, it might just as well 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. Considered as whether the hospital’s duty 

extended to off-premises activities or as whether it breached its duty by assenting to Malia’s 

insistence on departing, the trial court was correct to grant judgment for the hospital.1

Contributory Negligence

In 1986, the General Assembly altered Indiana’s common law by adopting comparative 

fault as the general rule for negligence actions. The legislature specifically excluded from this 

alteration actions against qualified healthcare providers for medical negligence, Ind. Code § 34-

51-2-1(b)(1) (2008), leaving in place contributory negligence for this and certain other claims. 

A plaintiff’s contributory negligence operates as a complete bar to recovery. Foster v. 

Owens, 844 N.E.2d 216, 221 (Ind. Ct. App. 2006). While a plaintiff whose own negligence may 

have contributed as much as 49 percent to her injury may recover under comparative fault from a 

defendant whose acts provided 51 percent, under contributory negligence a claimant whose own 

negligence was even slightly causal is barred from recovery. A court should find a plaintiff 

contributorily negligent if her conduct falls below the standard to which she is required to 

 

1 McSwane’s central contention about the treating physician was that she failed to report the suspected abuse, 

relying on Ind. Code § 35-47-7-1. As the Court of Appeals’ majority noted, this contention was not made in the trial 

court and thus is not available on appeal. Counsel does not present any other contentions about Dr. Eelma except 

those that are congruent with claims about the hospital. Eelma thus prevails.
7

conform for her own protection. Faulk v. Northwest Radiolgists, 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, 1044–45 (Ind. Ct. App. 1999). The question of contributory negligence is a 

question of law for the court when only one reasonable inference or conclusion can be drawn 

from the evidence. Leppert Bus Lines, Inc. v. Rayborn, 133 Ind. App. 325, 331, 182 N.E.2d 260, 

263.

Counsel for McSwane contends that having received anesthetic and pain medications 

Malia could not be contributorily negligent as a matter of law. (Appellant’s Br. at 9.) The 

materials the hospital tendered on summary judgment describe Malia as “alert and oriented” 

even during her recovery period. (App. at 120.) Nurse Guzik said Malia was “very aware [of] 

what was going on. . . . I mean she followed commands very well. Ask her a question, she’d 

answer appropriately.” (App. at 120.) The surgeon’s conclusion about the debate over pain 

medication was that Malia “was a person in my opinion that probably was very capable of 

making her own decisions.” (App. at 263.) Counsel for McSwane does not point to any facts 

that actually contradict this assessment. 

While negligence is generally a question for the finder of fact, where the evidence 

permits only a single inference, contributory negligence may be a matter of law for the court. 

Funston v. Sch. Town of Muncie, 849 N.E.2d 595, 599 (Ind. 2006). The trial court found that 

Malia’s insistence on leaving with Monty in the face of offers by hospital staff and pleas by her 

own mother was negligence that contributed to her injury. This was not error.

Conclusion

We affirm the judgment of the trial court.

Sullivan, J., concurring in part and concurring in result, agrees with Chief Justice Shepard that 

summary judgment was appropriate on grounds that the defendants did not breach their duty of 
8

care as a matter of law and, therefore, it not being necessary to address the issue of contributory 

negligence, expresses no view on it.

Boehm, J., concurs in result.

Rucker, J., dissents with separate opinion in which Dickson, J., joins.
RUCKER, J., dissenting.

I agree with the majority 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.” Slip op. at 

6. Although the existence of duty is a matter of law for the courts to decide, a breach of duty is 

usually a matter left to the trier of fact. King v. Northeast Security, Inc., 790 N.E.2d 474, 484 (Ind. 

2003). Only where the facts are undisputed and lead to but a single inference or conclusion may the 

court as a matter of law determine whether a breach of duty has occurred. Id. Unlike the majority 

however I do not believe the question of breach in this case can be determined as a matter of law. 

The record establishes a lack of communication about suspected domestic abuse between the 

ER staff and the treating emergency room physician. Although the triage nurse indicated she 

informed a charge nurse of her suspicions, the record is void of any evidence of an emergency room 

charge nurse taking any action or informing the treating physician. Appellant’s App. at 223-28. The 

fact that the attending physician states that he was not informed of the suspected domestic abuse 

indicates that the emergency room support staff did not follow the hospital’s adopted domestic 

violence policies, which requires such communication from staff to the treating physician. Id. at 

914-22. This concern is amplified because the attending physician was able to spend time alone with 

Malia before she was heavily medicated and while the “husband” was out of the exam room. Id. at 

890. Thus the doctor, had he been properly informed, could have asked appropriate questions 

regarding domestic abuse during that period, which could have given the patient a reasonable 

opportunity to seek refuge.

In sum, the facts in this case raise genuine issues as to whether the hospital breached its duty 

of care by, among other things, discharging a patient to the custody of a suspected abuser. This is not 

a matter that can be resolved by summary disposition. 

I also disagree with the majority’s determination that Malia was contributorily negligent as a 

matter of law. It is of course the case that in a contributory negligence regime any negligence on the 

part of the plaintiff, no matter how slight, will bar any action for damages. But contributory 

negligence is generally a question of fact that is not appropriate for summary judgment if there are 

conflicting factual inferences to be drawn from the designated evidence. Jones v. Gleim, 468 N.E.2d 

205, 207 (Ind. 1984). As the majority correctly declares “the question of contributory negligence is a 
2

question of law for the court when only one reasonable inference or conclusion can be drawn from 

the evidence.” Slip op. at 7. In this case the majority apparently is of the view that because there 

was evidence that Malia was “alert and oriented” during her period of recovery, “very aware [of] 

what was going on” and was “capable of making her own decisions,” slip op. at 7, she was negligent 

in some degree and thus the trial court properly granted summary judgment in favor of the Hospital. 

But summary judgment is rarely appropriate in negligence actions. Rhodes v. Wright, 805 N.E.2d 

382, 387 (Ind. 2004). And this is so because “negligence cases are particularly fact sensitive and are 

governed by a standard of the objective reasonable person – one best applied by a jury after hearing 

all of the evidence.” Id.

The medical records indicate that, while Malia was present in the emergency room, she 

received numerous drugs, including Phenergan and the narcotic analgesic Dilaudid to control her 

pain. Appellant’s App. at 285. It was determined that Malia required general surgery to repair her 

injuries, which was done in an operating room under general anesthesia, with full intubation. Id. at 

290, 304. Malia was rendered medically unconscious for over one hour and then given numerous 

medications, one of which was 10 milligrams of morphine (a narcotic analgesic) for post-operative 

pain. Id. at 298, 301. Although the record indicates that Malia was thereafter alert and oriented, it is 

unclear what her true decision-making capabilities and mental state were at the time of discharge. Id.

at 308. Furthermore, from the record before us it appears that Malia was discharged from the 

hospital approximately 90 minutes after the surgery was completed, which leaves open the likelihood 

that the she had not fully recovered from the general anesthesia and was thus mentally and/or 

physically incapable of reasonable decision making, or self-protection, when allowed to leave the 

hospital. Id. 

This Court has held:

The general rule on the issue of the plaintiff’s contributory negligence 

is that the plaintiff must exercise that degree of care that an ordinary 

reasonable [person] would exercise in like or similar circumstances. . 

. . We hold that a departure from the general rule is required where 

the plaintiff is suffering from physical infirmities which impair [her] 

ability to function as an “ordinary reasonable [person].” The proper 

test to be applied in such cases is the test of a reasonable [person] 

under the same disabilities and infirmities in like circumstances. On 

the issue of contributory negligence, mental condition and/or physical 

incapacities are factors to be considered.
3

Mem’l Hosp. of South Bend, Inc. v. Scott, 261 Ind. 27, 300 N.E.2d 50, 56 (1973) (internal citations 

omitted). It is clear to me there are different factual inferences that may be drawn from the evidence 

concerning Malia’s mental, emotional, and physical condition. Thus, a fact-finder should determine 

whether having received general anesthetic, a relaxant, numerous doses of various opiates for pain, 

and being advised by Hospital not to make any important decisions, Malia was exercising that degree 

of care that a reasonable person under the same or similar condition would have been expected to 

exercise when she decided to leave the hospital with her former husband. This is not in my view a 

matter that can be disposed of by summary disposition. For the foregoing reasons I respectfully 

dissent and would reverse the judgment of the trial court.

Dickson, J., joins.