If a patient is injured in a hospital, and a lawsuit emerges, it can fall under the category of “ordinary negligence” or “medical malpractice.” For cases that qualify as legal claims, the vast majority of such claims fall under the category “medical malpractice.”


Why does it even matter?


The two categories often have different statutes of limitations, damage caps, need for expert testimony, and so on. The cost to pursue the case and the amount of money which can be recovered may vary dramatically.

An example of “ordinary negligence” is a patient slipping on a puddle of water in a hospital corridor. That’s pretty straightforward. It’s just coincidental the “slipee” is a patient. A person who slipped may not even be a patient receiving care at the hospital. He could be a visitor or staff member. Regardless, the slip has nothing to do with medical care being delivered. It just happens to occur at a hospital. Here, the analysis is simple. Send the claim to your premises liability insurance carrier. It ain’t malpractice.


Some cases are more challenging.


In Pluard v. Patients Comp. Fund, 705 N.E.2d 1035, (Ind. Ct. App. 1999), a lawsuit was based on the allegation a surgical lamp became detached from the wall and fell on a newborn’s head. Although a nurse had positioned the light at the direction of a doctor, it was not the positioning of the light – but its detachment – that caused the injury. Again, ordinary negligence. Not medical malpractice.


A recent case detailed how to parse the even tougher ones. Anonymous Hospital, Inc. v. Doe, 996 N.E. 2d 329 (Ind. Ct. App. 2013)


The appropriate analysis involves first, the nature of the conduct alleged in the complaint – whether or not the alleged negligence involves provision of medical services – and, second, whether the rendering of medical services is to the plaintiff for the plaintiff’s benefit. Ultimately, if the alleged harm would have occurred independent of medical services provided to the plaintiff, it sounds in common law negligence.


Now to the details of Anonymous Hospital, Inc. v. Doe, where the hospital wanted the case treated as medical malpractice, and not ordinary negligence. Word for word from the appellate decision:


On December 31, 2007, Doe was en route to a gathering of friends when she heard voices and became convinced that a “rapture” of Christians was occurring. She then jumped from her boyfriend’s moving vehicle. Doe’s friends contacted her parents, who took her to their South Bend home. Doe jumped out a window and ran down the road in blizzard-like conditions, eventually seeking refuge in a stranger’s home. There, she falsely accused her father of being a child molester.


Doe’s parents took her to the psychiatric ward of Anonymous Hospital. She was evaluated by a staff psychiatrist, who diagnosed her as “psychotic not otherwise specified.” It was noted that Doe was suffering from delusions, suicidal ideation, religious delusions, and auditory hallucinations. She was admitted for in-patient psychiatric care.


At some point, Doe encountered Marcus, a middle-aged patient who had been admitted for alcohol detoxification. Marcus was wrapped in a bed sheet, and Doe formed the belief that he was Jesus Christ.( Doe also expressed beliefs at various times that one of her parents was Satan, one parent was divine, and her psychiatrist was God.)  She expressed a desire to wash Marcus’s feet. Later, Doe threw ice on her psychiatrist because she believed that he was trying to harm Marcus. Doe was placed in five-point restraints and provided with one-on-one monitoring. She was also prescribed several medications.


On January 7, 2008, Doe was placed on less intensive monitoring. Staff members were to make a notation of her whereabouts each fifteen minutes. On the morning of January 9, 2008, Doe’s psychiatrist met with Doe’s parents in a conference room five doors down from Doe’s room. Doe walked down the hallway and into the conference room but was told to go back to her room.


On the way back to her room, Doe passed by Marcus. He motioned to Doe to come into his room; when she approached, he pulled her into the room and they began kissing. Marcus unbuttoned his pants, pulled out his penis, and pushed Doe’s head toward it. After they engaged in oral sex, Marcus told Doe to leave and come back later. Doe returned as requested. Marcus then took Doe into the bathroom and attempted anal sex but could not achieve penetration. He moved Doe to the bed, where they engaged in vaginal intercourse.


Following this incident, Doe’s parents ended the meeting and came to Doe’s room to visit with her. Doe was on her bed, curled into a ball and trembling. She recoiled from her mother’s kiss and told her parents this would be the last time they would see her. Later, she told fellow patients that she wanted to die. Doe found a hospital social worker in the hallway and reported that she had been “lured” into a patient’s room, “fooled around” with him, and “went all the way.”


Doe’s psychiatrist initially informed Doe’s parents of his belief that Doe had experienced another delusion. However, Doe underwent a physical examination and a vaginal swab tested positive for semen. As a result, Marcus was immediately discharged from Anonymous Hospital and Doe was discharged under the full-time supervision of a nurse.


The hospital argued that expert opinion was needed to address the issues surrounding what should be deemed a “medical malpractice” case. The plaintiff argued she was assaulted in the hospital and the hospital had a duty to keep her (and anyone else on its premises) safe in what should be deemed an “ordinary negligence” case.


Drum roll….


Hospital won at the appellate level. The case will be treated as “medical malpractice” and not as “ordinary negligence.”


Here’s the reasoning; again word for word from the ruling.


Doe returned to Marcus’s room of her own volition, in the physical sense. Her participation in sexual acts with Marcus was not accomplished by force or threat of force, and he was not charged with criminal conduct. Rather, the gravamen of Doe’s complaint is that she was rendered incompetent to make an informed decision regarding sexual conduct because of psychotropic drugs prescribed for her by the employee of Anonymous Hospital. In other words, she was allegedly placed in a position of undue vulnerability because of decisions made by her treating physician, that is, which medications and what dosage were appropriate for her care while she was confined in close proximity to other patients….


Ultimately, however, a jury cannot decide whether Doe was indeed “attacked” absent a determination that she was or was not able to give consent given her pharmacological regimen. Her expert witness opined that she was unable to give consent while her treating psychiatrist opined that she was able to do so.


As Doe observes, the question of sufficient mental capacity to consent to sexual activity is a question of fact to be decided by the fact-finder. Hall v. State, 504 N.E.2d 298, 300 (Ind. Ct. App. 1987). However, in the face of an allegation that a mental deficiency was pharmacologically induced, the trier of fact would need expert assistance in reaching its determination. Doe appeared to her parents to be significantly under the influence of drugs but was aware of her surroundings and able to convey her wishes, such as asking to go home. A layman’s typical life experience cannot be expected to provide a basis for assessment of the propriety of a particular pharmacological regimen. In these circumstances, the fact-finder cannot be expected to determine whether there has been a breach of a particular standard of care absent expert medical testimony.


In short, the court concluded that an inpatient had sex in the hospital. Whether or not the patient was attacked (and the hospital is liable) will depend upon whether she consented to have sex. Whether she gave adequate consent or not will depend upon whether the pharmacologic cocktail prescribed by her doctor affected her capacity to give consent.


I’m skeptical the hospital will prevail long-term and expect that a check will be written. I wonder if this case would have been better addressed by mediation / early settlement. The date of the event triggering the suit was 2008. It’s now 2014. This case has lingered for a while. What is no less surprising is the fact the hospital has been able able to maintain anonymity throughout the legal process. A morning headline “Psychiatric Patient Raped in [Fill in the Blank of Your Hospital]” is not the start of a good day.