Friday, May 20, 2016
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S.C. Limits Scope of Elder Abuse Law Claims Against Doctors
Failure to Refer Patient to Specialist Not ‘Neglect’ Absent Prior Relationship, Justices Say
By KENNETH OFGANG, Staff Writer
A doctor’s failure to refer an elderly patient to a specialist will not support a claim for “neglect” under the Elder Abuse and Dependent Adult Civil Protection Act unless the doctor and patient had an ongoing professional relationship, the state Supreme Court ruled yesterday.
“What we conclude is that the Act does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient,” Justice Mariano-Florentino Cuéllar wrote for a unanimous court. “It is the nature of the elder or dependent adult’s relationship with the defendant –– not the defendant’s professional standing –– that makes the defendant potentially liable for neglect.”
The court overturned a ruling by Div. Eight of this district’s Court of Appeal that the plaintiffs’ allegations were sufficient to survive demurrer.
Plaintiffs’ Allegations
Kathleen Winn and Karen Bredahl alleged that their late mother, Elizabeth Cox, was treated at Pioneer, which has several facilities in the southern part of Los Angeles County. They alleged that a podiatrist there treated her as an outpatient on four occasions in February and March 2009 and failed to recognize the seriousness of her foot problems.
In March 2009, the complaint alleged, she was admitted to a hospital with symptoms of ischemia and gangrene, and suffered from sepsis, leading doctors to attempt, unsuccessfully, a revascularization procedure. Her right leg had to be amputated below the knee the following month and above the knee two months later.
She died in January 2010 after being hospitalized for blood poisoning. Her daughters filed a malpractice suit, and later sued under the elder abuse statute, which provides greater remedies for the “physical abuse…or neglect” of an elderly person, if the plaintiff can demonstrate “recklessness, oppression, fraud, or malice” on the part of the defendant.
Trial Court Ruling
Los Angeles Superior Court Judge Joanne O’Donnell, who has since retired, sustained a demurrer, saying the plaintiffs failed to adequately plead recklessness. The Court of Appeal reversed in a 2-1 decision.
Cuéllar, writing for the high court, said the act “was not meant to encompass every course of behavior that fits either legal or colloquial definitions of neglect,” but to grant broader remedies in certain situations that “place elders and dependent adults at heightened risk of harm [so that] heightened remedies relative to conventional tort remedies are appropriate as a consequence.”
The act, he noted, refers to persons “having the care and custody” of elderly and dependent adults. “What the text …conveys about the Legislature’s purpose here ––along with related provisions and similar language in other statutes––supports tethering the concept of neglect to caretaking or custodial situations. But the legislative history of the Act likewise suggests that the Legislature was principally concerned with particular caretaking and custodial relationships, and the abuse and neglect that can occur in that context.”
The legislative history, he added, does not show that the act was intended to apply to all medical treatment of the elderly, but to the type of abuse and neglect shown to have occurred in particular types of facilities. Extending it to a case where the patient was seen a few times on an outpatient basis, he said, was not what lawmakers intended.
Clay Robbins III of Magaña, Cathcart & McCarthy argued for the plaintiffs; Russell S. Balisok for their amicus, California Advocates for Nursing Home Reform, Inc., and Kenneth R. Pedroza of Cole Pedroza for the defendants.
The case is Winn v. Pioneer Medical Center, Inc., 16 S.O.S. 2465.
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