In a long-awaited decision, the California Supreme Court has firmly rejected a common practice of injecting allegations of elder abuse into disputes over office-based medical care.
In 2004, Elizabeth Cox saw a podiatrist at Pioneer Medical Group for a painful toenail infection. The podiatrist at the group recorded pulses that reflected impaired vascular flow in Ms. Cox’s lower legs and sent a copy of his report to her regular family practitioner at Pioneer, Dr. FP. (As is normal for appellate cases, all facts used in the Supreme Court’s decision derive from the plaintiff’s allegations and are deemed admitted by the defendants only for the purpose of legal analysis.)
From 2007 to 2009, Ms. Cox’s vascular symptoms in her legs worsened. Between numerous visits with her original podiatrist, Dr. FP, and a second podiatrist at Pioneer, her treaters found reduced or no pulse in her extremities, cellulitis, peripheral vascular disease, a chronic non-cubitus ulcer of the toes, and abnormal weight loss. Treatment included drainage, antibiotics, topical cream, foot soaks, and special shoes.
In March of 2009, Ms. Cox was admitted to the hospital with symptoms consistent with ischemia and gangrene and physicians unsuccessfully attempted a revascularization procedure. The next month, Ms. Cox underwent a belowknee right leg amputation and then had an above-knee procedure two months hence. In January 2010, Ms. Cox was hospitalized for blood poisoning and died several days later.
In addition to a lawsuit for medical malpractice against Pioneer and their mother’s physicians, Ms. Cox’s daughters filed a complaint for elder abuse, alleging that the defendants consciously failed to refer Ms. Cox to a vascular specialist. At the trial court level, the medical defendants successfully defeated the elder abuse allegation when the judge ruled that the plaintiffs had failed to allege anything more than “mere negligence,” the “provision of inadequate care,” and “incompetence.”
The Court of Appeal reversed the trial court judge, but in Winn v. Pioneer Medical Group, Inc., the California Supreme Court said the elder abuse allegations cannot apply in the medical setting at issue.
Under California’s Elder Abuse and Dependent Adult Civil Protection Act, a plaintiff family member who can prove by “clear and convincing evidence” that a defendant is liable for physical abuse or neglect through “recklessness, oppression, fraud, or malice” may win attorney fees and additional damages for the pain and suffering experienced by the patient before death – money that is not available in a conventional medical malpractice award. The relevant statutory definition of “neglect” is “[t]he negligent failure of any person having the care and custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.”
In Winn, the Supreme Court focused on whether care provided in an outpatient setting satisfies the Elder Abuse Act’s requirement that the individual be in the “care and custody” of the person accused. The unanimous Court found that it does not.
“[N]othing in the (Elder Abuse Act’s) legislative history suggests that the Legislature intended the Act to apply whenever a doctor treats an elderly patient,” the Court wrote. “Reading the Act in such a manner would radically transform medical malpractice liability relative to the existing scheme. No portion of the legislative history contains any indication that the Legislature’s purpose was to effectuate such a transformation of medical malpractice liability,” the Court found.
“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.”
Gordon Ownby is CAP’s General Counsel. Comments on Case of the Month may be directed to gownby@CAPphysicians.com.gownby@CAPphysicians.com