Daily Blast May 24, 2013

We thought you should be aware of a new elder abuse case issued on May 24, 2013, by the California Court of Appeal, Second Appellate District, Division Eight (Los Angeles) in Winn v. Pioneer Medical Group, Inc. (May 24, 2013, B237712) ___ Cal.App.4th ___. In a case involving allegations that the defendant failed to refer an elderly patient to a vascular specialist for over two years while her condition worsened without treatment, the court held that (1) the elder abuse statute does not limit liability to health care providers with custodial obligations and (2) the question of whether defendants’ conduct was reckless rather than merely negligent is for a jury to decide. (Slip. opn., p. 2.)

Plaintiffs sued defendant physicians for elder abuse after their 83-year-old mother died. (Slip opn., p. 2.) According to the complaint, defendants repeatedly failed to provide needed medical care under circumstances where defendants knew the decedent’s health and well-being depended on such care. (Id. at p. 6.) Defendants claimed they could not be liable for elder abuse because they treated decedent as an outpatient, and liability for elder abuse “requires assumption of custodial obligations.” (Id. at p. 2.) They also contended the conduct plaintiffs alleged constituted only professional negligence and, as a matter of law, did not amount to the “reckless neglect” required for a claim of elder abuse. (Ibid.) The trial court sustained the demurrer without leave to amend concluding that plaintiffs failed to show defendants denied the decedent needed care in a reckless sense. (Id. at p. 6.)

The Court of Appeal reversed. (Slip opn., p. 2.) The court first rejected defendants’ argument that physicians without custodial obligations could not be labile for elder abuse. (Id. at pp. 9-16.) According to the court, “[n]either Delaney nor CovenantCare suggested that the Act does not apply to health care providers without custodial obligations.” (Id. at p. 14.) The court the rejected defendants’ argument that the facts alleged in the complaint showed only professional negligence. (Id. at p. 16.) According to the court, plaintiffs’ complaint sufficiently alleged reckless neglect. (Ibid.) Plaintiffs’ main allegation was that defendants’ repeatedly failed over a two-year period to refer the decedent to a vascular specialist, despite their own diagnoses that demonstrated they knew, or should have known by a review of the decedent’s file that there was a strong probability of harm by failure to provide the critically needed specialized care. (Ibid.) According to the court, the jury was entitled to determine whether this conduct was sufficiently egregious to constitute reckless neglect. (Id. at p. 17.) The court also distinguished Carter. The court stated that the facts in Carter were not comparable to the facts in this case where plaintiffs alleged defendants withheld the only proper medical treatment and utterly disregarded the excessive risk to the decedent for two years. (Id. at pp. 17-18.) 

Finally, the court held that although “professional negligence, on the one hand, and abuse and neglect, on the other, are distinct and mutually exclusive. That does not mean it is anomalous to allege, as plaintiffs have, that the same facts may prove professional negligence and also elder abuse or neglect.” (Slip opn., p. 19.) The court rejected the argument “that professional negligence differs from elder abuse and neglect only in degree, or that there is a continuum of medical care, with professional negligence at one point on the continuum and reckless neglect at another.” (Ibid.) 

Of interest, Presiding Justice Bigelow filed a lengthy dissenting opinion. She believed the majority blurred the line between the Elder Abuse Act and professional negligence. According to Justice Bigelow, the allegations in the complaint fell squarely within the category of professional negligence. She believed that plaintiffs’ complaint concerned defendants’ allegedly negligent undertaking of medical services, rather than a failure of those responsible for attending to the decedent’s basic needs and comforts to carry out their custodial or caregiving obligations. As a result, she would have affirmed the trial court’s order sustaining the demurrer.

This case demonstrates that this continues to be an interesting area of the law and we would not be surprised to see the Supreme Court take up a case addressing the scope of Carter.

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