EXECUTIVE SUMMARY

A jury found in favor of a hospital accused of malpractice after one patient raped another presenting with mental health issues. Hospital attorneys were successful in having the case tried as malpractice rather than a simple civil lawsuit.

  • Indiana malpractice law is particularly challenging to the plaintiff.
  • The complaint focused on physicians’ alleged failure to warn of drug reactions.
  • Staff initially dismissed the mental health patient’s rape complaint.

A hospital prevailed recently in a lawsuit alleging malpractice related to one patient raping another, and legal analysts attribute the verdict to the hospital successfully arguing that it should be tried as a malpractice case rather than a simple civil lawsuit alleging negligence.

The case involved a patient who was sexually assaulted twice while admitted to the psychiatric wing of Elkhart (IN) General Hospital in 2008. The woman had been admitted for psychosis and suicide risk, having been convinced that she had been left behind after Christians were taken to heaven in the rapture, according to a report in the South Bend Tribune. (The full report is available online at http://bit.ly/2ig9VPX.)

When the woman saw a middle-aged man who had been admitted for detox services and who was wrapped in a bedsheet, she believed he was Jesus, according to court documents. She said she wanted to wash the man’s feet, and threw water on a doctor treating the man. The man was admitted and — despite having behaved inappropriately and saying he had trouble with women — he was placed in a room next to the woman’s. The plaintiff’s attorneys claimed many other rooms were available on the unit.

Negligence Alleged After Rapes

Court documents say the man twice lured the young woman into his room and she submitted to sexual acts because she believed he was Jesus and she had to obey him. Hospital officials did not believe her report of the assaults at first, but a physical exam confirmed her story.

The plaintiff sued the hospital in 2009 for negligence, but the hospital argued it should be a malpractice case because it involved her treatment. The trial judge allowed a simple civil lawsuit, but an appeals court ordered that it should continue as a malpractice trial.

This was a win for the hospital, but not so surprising because Indiana makes it especially difficult for plaintiffs to win malpractice cases, explains Gregg Bertram of Pacific ADR Consulting in Seattle, who has mediated or arbitrated more than 600 claims, including allegations of hospital negligence. State law requires a review by three other doctors in the same field, and the panel’s findings can greatly influence the jury.

Changing the case to malpractice didn’t really make sense, Bertram says.

“That opinion seems to me somewhat strained to reach that conclusion. It didn’t make a lot of sense in light of earlier cases that the court cited in the opinion itself,” he says.

However, Bertram says the plaintiff holds some responsibility for choosing the wrong negligence charge for the complaint. His review of the records suggest that the plaintiff’s case was not presented effectively.

“The complaint was not plead as well as it should have been to make the question of ordinary negligence vs. malpractice a closer one,” he says. “The plaintiff’s complaint focused on whether her own doctors were negligent in failing to inform her or the hospital of the possible consequences of the psychotropic medicines she was prescribed, because clearly she was delusional when she was admitted. Instead, they should have alleged that the negligence in the case was the hospital’s failure to restrain or protect her from the other patient that she had sex with.”

Focusing on what the doctors did or didn’t do made it easier for the defendant to argue for the case involving malpractice, Bertram says.

Law Favors Defendants

The case also should be a reminder to healthcare professionals not to dismiss a psychiatric patient’s complaints or concerns too readily, Bertram says. The patient in this case was clearly delusional, but her complaint about the rapes were valid and the staff did not take them seriously until they performed a physical exam.

Medical malpractice is difficult for plaintiffs to prove in any jurisdiction, and Indiana especially so, he notes. The hospital understandably took advantage of state law to have the case tried as malpractice, even though that wasn’t justified by the facts, Bertram says. The state’s requirement for a physician panel to render judgment on the case, even though it is not binding, also greatly skews the odds in favor of the defendant, he says.

“Over the years, the number of times the percentage of cases in which these panels found negligence probably is incredibly minute,” Bertram says. “Although the panel’s decision is not binding on the jury, the jury hears it. How many times is a lay jury going to disregard a panel recommendation of physician members? Almost never.”

Bertram notes that the plaintiff was diligent in pursuing the case despite the odds stacked against her, and she continued for eight years, long after many people would have given up.

“It’s not an evenhanded prospect in any respect,” he says. “In addition to everything else, Indiana state law says that if there is even 1% comparative negligence assessed against the plaintiff, they lose. That is incredibly draconian.”

Juries Can Be Wary

Bertram says the case illustrates other factors that work in favor of hospitals fighting medical malpractice charges. Long delays generally work in favor of the plaintiff because litigation is so expensive, he notes, and plaintiffs also can find it difficult to locate adequate expert witnesses to testify against other medical professionals.

“Defendants also have an easier time finding local experts,” Bertram says. “In many times, the local experts carry more weight simply because they’re local, from the same community and possibly a respected hospital or university. Plaintiffs often have to range very far afield to find someone who will testify for them, and the jury can see that person as an outsider flown in to say what the plaintiff wants.”

In addition, Bertram notes that psychiatric claims are especially hard to pursue.

“Some members of the lay public view psychiatry as something akin to witchcraft,” he says. “It’s different from something like orthopedic surgery that a lay person can wrap their head around. It’s amorphous.”

Assaults and other criminal activity in healthcare facilities also can be seen by juries as beyond the provider’s responsibility, he says. Similar to how juries may see falls as something that inevitably happen in a hospital or nursing home despite adequate precautions, a jury may also be reluctant to hold a defendant responsible for criminal activity that has nothing to do with medical care, Bertram says.

“There is a not unreasonable general belief that no matter how vigilant an institution’s staff, you can’t watch everybody all the time,” he says.

Fair Trial Questioned

The particulars of Indiana state law prevented the plaintiff from getting a fair hearing, says Carole Lieberman, MD, MPH, a forensic psychiatrist and expert witness in Los Angeles.

“Justice was not served here. First, the case was derailed by being forced to be a malpractice case instead of a negligence or intentional infliction of emotional distress or another type of case,” she says. “Then, as a malpractice case, not only was the potential recovery award limited, but the panel clearly did not consider it in a professional and unbiased manner.”

A patient in a hospital is entitled to be kept safe, she says. That is a major purpose and expectation of hospitalizing a patient, she says.

“At a most basic level, they are to be kept safe from themselves and from others,” Lieberman says. “As a psychiatric expert witness, I have to wonder how good the plaintiff’s expert was. They should have been able to make the liability and damages clear to the panel and the jury.” n

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