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Remember your legal duty to protect against domestic violence
ISMA e-Reports, March 22, 2010
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For a long time, all persons – including doctors - have had a duty to report suspected or known child and endangered adult abuse.

Endangered adults are persons over age 18 who are incapable by reason of mental illness, mental retardation, dementia, or other physical or mental incapacity of managing or directing their property, or providing or directing self-care, and who are harmed or threatened by neglect or battery.

However, the Indiana Supreme Court on Nov. 30, 2009, addressed a duty of health care providers to protect all patients from domestic violence, even if not in the statutorily protected categories for children and endangered adults.

The sad story
A man and woman, divorced but living together, arrived at the hospital seeking treatment for her lacerations. She told the hospital and doctor she was thrown from a horse.

The triage nurse suspected domestic violence but the patient denied it. The nurse reported it to the surgery nurse on duty but it was never reported to the surgeon.

While the patient was in recovery from surgery, her mother arrived and informed a nurse she believed her daughter was assaulted by her ex-husband. The mother called the state police, the local sheriffs and hospital security. Law enforcement did not respond, but hospital security guards searched the ex-husband for weapons and performed a sobriety test. Both were negative.

Report abuse

Report child and endangered adult abuse to your local police or

  • Child Protective Services - (800) 800-5556
  • Adult Protective Services - (800) 992-6978

Failure to report either form of abuse is a Class B misdemeanor and also prompts medical malpractice litigation.

Approximately 90 minutes after surgery under general anesthesia and administration of multiple narcotics, the patient was discharged. The nurse told her she did not have to leave with her ex-husband; her mother also pleaded with her not to leave. But the patient left with him.

After driving a few blocks, he shot and killed the patient – and then himself.

Ensuing court action
The mother filed a medical malpractice complaint against the hospital and surgeon for permitting her daughter to leave the hospital with her ex-husband after gaining knowledge of possible violence. The trial court granted summary judgment for the defendants; the Court of Appeals reversed.

On transfer, the Indiana Supreme Court noted: “[A] hospital’s duty of care to a patient who presents obvious signs of domestic abuse includes some reasonable measures to address the patient’s risk.”

The court found the hospital did take several actions including direct suggestions that abuse may be the cause – providing a chance to so indicate outside earshot of the abuser – security examinations of the suspected abuser, facilitating calls to law enforcement, and informing the patient she need not leave with her ex-husband.

Also, the court commented that physically restraining the patient would interfere with patient autonomy and informed consent. Thus, the hospital did not breach its duty to protect its patient.

The court agreed the patient’s insistence on leaving with her ex-husband was negligence that contributed to her own injury.

Caution from the ISMA
“Although the Supreme Court agreed with the trial court that the health care providers satisfied their duties to protect their patient, the case is a good reminder that such a duty exists,” said Julie Reed, ISMA legal counsel. “Health care providers need to remain vigilant in identifying not only child and endangered adult abuse but also domestic violence, taking steps to prevent it when possible.”

Indiana law sets aside patient confidentiality for reporting child and endangered adult abuse, but no similar exception exists for domestic violence involving other populations. Therefore, it is unclear what and to whom doctors could communicate without violating patient confidentiality in those cases.

“Unfortunately, the court did not address patient privacy issues in this case, which can conflict with reporting abilities,” added Reed.

Call ISMA’s legal department with questions.

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