Can the alleged reckless failure of outpatient treating medical professionals to refer elder's case to vascular specialist constitute elder abuse?

June 7, 2013
By Justice Steven Vartabedian (Ret.) on June 7, 2013 6:00 AM |

Outpatient.jpgIn Winn v. Pioneer Medical Group, Inc. (published opinion filed 5/24/13) B23712, the 83-year-old patient of the defendant medical group died in January 2010 from blood poisoning after emergency vascular surgery was unsuccessful in stemming her long-term vascular impairment. She had been treated by defendants for about 10 years, and she was under their sole medical care for about 3 years. In 2007, although she was diagnosed with peripheral vascular disease, defendants failed to refer her to a vascular specialist. Even as her condition worsened while under their care up to several months before her death, according to the amended elder abuse complaint filed by her heirs, defendants recklessly "failed to provide such needed medical care to [decedent] under circumstances where [d]efendants . . . knew the health and well-being of [decedent] depended on such care."

Defendants twice demurred; the demurrer to the amended complaint was sustained without leave to amend. The trial court (Los Angeles Superior Court) concluded plaintiffs "failed to provide facts showing that the defendants denied the decedent needed care in a reckless sense as is required for a violation of the Elder Abuse Act . . . Instead, the allegations describe professional negligence and incompetence. . ." The Court of Appeal, Second Appellate District, Division Eight, in a 2-1 opinion, reversed. The majority found that the elder abuse statute does not limit liability to health care providers with custodial obligations, and the question of recklessness should be left for a jury to decide.

Welfare & Institutions Code section 15657 is the operative provision of the Elder Abuse Act in play here. That section states: "Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse . . . , or neglect . . . , or fiduciary abuse . . .[of an elderly or dependent adult] and the defendant has been guilty of recklessness . . . in commission of this abuse, the following shall apply in addition to all other remedies provided by law: (a) [t]he court shall award to the plaintiff attorney's fees and costs." Additionally, where the elderly person dies, the plaintiff heirs are exempted from the exclusion of pain and suffering damages (allowed up to $250,000 under Civil Code section 3333.2). As to whether outpatient care is covered by this statute, two provisions provide potentially different interpretations: Section 15610.57 makes reference to "any person having the care or custody of the elder;" Section 15610.07 defines "abuse" as concerning "care custodians." Section 15657.2 excludes liability for acts of "professional negligence" brought against a health care provider.

Digesting the above statute along with case law interpreting it, the Winn majority concludes (1) the defendants here were "care custodians" even in providing only outpatient care, and (2) the potential for a jury finding of "recklessness" cannot be considered simply based on "professional negligence."

The dissenting justice disagrees with the majority's application of two Supreme Court cases relied upon by the majority [Delaney v. Baker (1999) 20 Cal.4th 23, and Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771)] ; that these two cases were also based on the differing character of custodial duties versus the performance of medical services in distinguishing "reckless neglect" from professional negligence. The dissent notes these two cases involved medical services provided in nursing homes, and the Supreme Court's analysis focused on the overlapping responsibilities of health care and custodial care in the nursing home setting. Here the plaintiffs also sued separately for professional negligence.

I see the differing interpretations of the majority and dissent here to be critical to future cases dealing with outpatient medical care of a patient who just happens to be over the age of 65. Can a claim of egregiously deficient medical care be alleged to be reckless conduct and allow plaintiffs to sue for enhanced remedies that would include attorney fees not available in professional negligence cases? A strong argument can be made that the intent of elder abuse statute is to focus on the captive status of the elderly person; this may not be case where one receives medical care on an outpatient basis. This dispute certainly seems ripe for Supreme Court review. In the meantime, we may see more claims of elder abuse in these types of cases with reliance on this Winn majority opinion.

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