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Court of Appeal:
Nursing-Home Doctor Not ‘Caretaker’ Under Elder-Abuse Law
Opinion Says Act’s Statutory Exception for Medical Malpractice Will Apply Absent Evidence That Physician Assumed Managerial, Custodial Rule
By Kimber Cooley, associate editor
Div. Five of this district’s Court of Appeal held Friday that the enhanced civil liability scheme established by California’s Elder Abuse Act for caretakers who neglect or abuse senior citizens does not apply to physicians accused of providing substandard medical care to residents of skilled nursing homes absent some evidence that the doctors took on a managerial or other custodial role.
Saying that the doctor’s conduct in providing purportedly negligent health services does not constitute “neglect” within the meaning of the statute, the court reasoned that a physician does not take on the vigorous custodial responsibilities required to state a claim under the act and is covered by an explicit exemption for medical malpractice.
At issue is the statutory definition of “neglect” set forth in Welfare and Institutions Code §15610.57(a), which defines the term as “the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.”
Plaintiffs asserting violations of the act may be able to recover attorney fees, costs, punitive damages, and pain and suffering if they prove by clear and convincing evidence that the caretaker is liable under the statutory scheme and engaged in recklessness, oppression, fraud, or malice.
Claim Against Physician
In an opinion by Presiding Justice Brian M. Hoffstadt and joined in by Justices Carl H. Moor and Dorothy C. Kim, the court said:
“Does an elder state a claim under the Act for ‘neglect’….against a physician based solely on that physician’s negligent medical services while the elder resided at a skilled nursing facility? We hold the answer is ‘no.’…[A] physician’s conduct in providing negligent medical services to an elder residing at a skilled nursing facility does not—without more—constitute ‘neglect’ because that physician lacks the requisite ‘robust caretaking or custodial relationship’ with the elder…and is accordingly being sued for no more than his professional negligence….”
Hoffstadt also pointed to an exemption for medical malpractice claims, found at §15657.2, which specifies that “any cause of action…against a health care provider…based on…alleged professional negligence, shall be governed by those laws which specifically apply to those professional negligence causes of action,” and said that the exception covers the purportedly problematic conduct at the heart of the plaintiff’s allegations in the case.
The question arose after James Frankland, who was 75 years old at the time and suffered from cerebral palsy as well as other ailments, was admitted to Casitas Care Center in Granada Hills in July 2021. He was dependent on facility staff for mobility, dressing, feeding, bathing, and other necessities of life.
Dr. Siamak Etehad provided “in-facility resident care” to James Frankland before the resident was transferred to a hospital due to a medical crisis in October 2021. He died on February 8, 2022.
Allegations in Complaint
On April 25, 2023, Steven Frankland, the decedent’s brother, filed a complaint as a successor in interest as well as in his individual capacity, against the medical center, Etehad, and others, asserting claims for negligence and financial abuse under the Elder Abuse Act and other causes of action. He alleged:
“In agreeing to accept JAMES as an in-facility patient, DR. ETEHAD expressly and impliedly agreed to provide for JAMES’ professional and custodial medical needs, and to do so within the relevant standards of care. Obviously, DR. ETEHAD also implicitly agreed to provide its care without abusing JAMES. Unfortunately, DR. ETEHAD failed to meet this obligation.”
Steven Frankland accused Etehad in the pleading of failing to immediately order antibiotics or further testing after he diagnosed James Frankland with sepsis and pneumonia on Oct. 2, 2021, and claims that the physician failed to address the patient’s dehydration and rapid weight loss of 27 pounds.
Etehad filed a demurrer to the two claims under the Elder Abuse Act after the remaining defendants settled with the plaintiff. Los Angeles Superior Court Judge William F. Fahey sustained the objection, without leave to amend, saying that the complaint “[s]tripped to its essence” alleged no more than “medical negligence” by the doctor.
The parties stipulated to the entry of judgment for Etehad on the plaintiff’s remaining claims for negligence and wrongful death in order to facilitate an appeal on the demurrer.
Fails to Describe
The act defines “elder” as “any person aged 65 or older” but fails to describe what qualifies as “care or custody” of such a party. However, Hoffstadt pointed out that the California Supreme Court provided guidance on that issue in the 2016 decision in Winn v. Pioneer Medical Group, Inc.
In that case, the high court held that the term requires “a robust caretaking or custodial relationship…where [the defendant] has assumed a significant measure of responsibility for attending to one or more of [the] elder’s basic needs that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.”
Saying that the act “creates civil liability with heightened remedies as a means of ‘eliminat[ing]…the institutional abuse of the elderly in health care facilities,’ ” Hoffstadt opined:
“This care or custody component is critical in delimiting the reach of the Act….[It] is what distinguishes a caretaker’s or custodian’s ‘failure to provide medical care’ (which is actionable under the Act) from the negligent ‘undertaking of medical services’ by health care providers’ (which is not actionable under the Act).”
Drawing Conclusions
He critiqued the plaintiff’s complaint for drawing legal conclusions…unmoored from any supporting facts” as to whether Etehad—who conducted periodic physicals, examinations, and evaluations of residents’ medical conditions—took on a heightened caretaking role, and said:
“Does a physician automatically assume the requisite caretaking or custodial relationship simply because the elderly patient happens to reside in a skilled nursing facility and the physician provides services to patients in that facility? We conclude the answer is no. Recognizing such a claim for neglect under the Act without allegations substantiating the necessary substance of the relationship would effectively impute the facility’s custodial and caretaking relationship to the physician in contravention of the rule requiring us to evaluate the allegations against each defendant separately.”
In a footnote, he added:
“The calculus may differ if the physician is involved in the management of the facility, but no such allegations were made here.”
Attempt to Distinguish
Rejecting the plaintiff’s attempt to distinguish Winn because the case involved outpatient care, he remarked:
“Although the factual context of Winn and this case are not identical, the holding…reaffirmed the Act’s statutory requirement that a plaintiff show a robust caregiving or custodial relationship has teeth, and this requirement applies regardless of where the elder happens to reside.”
As to plaintiff’s financial abuse claim, Hoffstadt commented:
“Plaintiff’s theory of financial abuse is that Dr. Etehad’s negligently-provided medical services resulted in higher (or unnecessary) charges to Medicare, which may result in higher (or unnecessary) liens by Medicare against any recovery for plaintiff in this case. If accepted, this theory would mean that any and every instance of a ‘health care provider’s alleged professional negligence’ would constitute financial abuse under the Act….We cannot sanction a theory that effects an end-run around a legislatively mandated limitation on the Act.”
Addressing whether Fahey abused his discretion in denying leave to amend, he concluded that “plaintiff does not make any assertion that he could amend his complaint to ‘cure’ the ‘defect’ that renders the claims under the Act barred as a matter of law” and that he “admitted to the trial court that he had already included all the facts he had.”
The case is Frankland v. Etehad, B338370.
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