Elder Abuse Defined/Constrained

In the recent case, Winn v. Pioneer Medical Group, Inc. (May 19, 2016, No. S211793) 2016 Cal. LEXIS 3432, the Supreme Court of California has defined boundaries for Elder Abuse claims.

Ms. Cox, an elderly patient, sought treatment for painful vascular symptoms in her feet and legs.

In January and February 2007, Mrs. Cox’s lower extremity vascular symptoms worsened, and in February 2007, she was diagnosed Mrs. Cox with peripheral vascular disease.

In December 2007, the defendant evaluated Mrs. Cox and found a reduced pulse in her extremities. He advised her to return for a follow-up visit in two months, but did not refer her to a vascular specialist.

In February 2008, one of the defendant doctors found an abscess and cellulitic changes, both of which are consistent with tissue damage resulting from vascular insufficiency. He drained the infection, prescribed medication, and recommended another follow-up appointment, but again did not refer Mrs. Cox to a specialist.

When another of Mrs. Cox’s doctors examined her in July 2008, he found that she still suffered from peripheral vascular disease. He saw her a month later but did not perform a vascular examination.

After suffering a laceration on her right foot in December 2008, Mrs. Cox sought treatment from a doctor who prescribed antibiotics and instructed Mrs. Cox to return for follow-up treatment in January 2009. Mrs. Cox returned to him in January 2009, but the wound had not healed and Mrs. Cox returned to one of the defendant doctors later that month. She noted the wound was painful and the doctor recommended medication and foot soaks. The following month, he diagnosed cellulitis of the toes, cyanosis, and a toe abscess, all of which point to cellular deterioration and tissue destruction from peripheral vascular ischemia.

Mrs. Cox saw one of the defendant doctors four times in February and March 2009. He noted that Mrs. Cox suffered from chronic nondecubitus ulcer of the toes, caused by vascular compromise. He recommended topical cream and a special shoe, but did not refer Mrs. Cox to a specialist. During two visits, he reported that he could not feel a pulse in Mrs. Cox’s feet.

On March 18, 2009, Mrs. Cox saw one of the defendant doctors whom noted that Mrs. Cox had suffered abnormal weight loss, but also failed to refer Mrs. Cox to a specialist.

The following day, Mrs. Cox was admitted to a hospital with symptoms consistent with ischemia and gangrene. She suffered from sepsis, or blood poisoning, which caused her foot to appear black, and doctors unsuccessfully attempted a revascularization procedure.

In April of that year doctors amputated Mrs. Cox’s right leg below the knee and in June doctors performed an above-the-knee amputation.

In January 2010 Mrs. Cox was hospitalized for blood poisoning. She died several days later.

Plaintiffs, the children of Ms. Cox, filed a complaint alleging medical malpractice against defendants. Later, plaintiffs filed a complaint for elder abuse, alleging that defendants consciously failed “to make a vascular referral.”

The trial court sustained defendants’ demurrer, which argued that this was not a proper case of “Elder Abuse.”

By means of background, the Elder Abuse and Dependent Adult Civil Protection Act affords certain protections to elders and dependent adults. Section 15657 of the Welfare and Institutions Code provides heightened remedies to a plaintiff who can prove “by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57,” and who can demonstrate that the defendant acted with “recklessness, oppression, fraud, or malice in the commission of [this] abuse.” Section 15610.57, in turn, defines “neglect” in relevant part as “[t]he 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.” (Welf. & Inst. Code § 15610.57, subd. (a)(1).)

The Supreme Court of California reviewed this case to determine whether the definition of neglect under the Elder Abuse and Dependent Adult Civil Protection Act applies when a health care provider—delivering care on an outpatient basis—fails to refer an elder patient to a specialist.

Ultimately, the Supreme Court concluded that the Elder Abuse 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. Because Ms. Cox was not under the “custodial” care of the defendant doctors in this matter, the Elder Abuse Act did not apply. The plaintiffs could maintain their action against the defendants for medical malpractice but, their repeated failures to refer Ms. Cox to a vascular specialist was not “neglect” within the definition of the Elder Abuse Act and the plaintiffs could not seek the remedies provided by the Act.

What do you think of the Supreme Court’s ruling? Was the repeated failure of Ms. Cox’s doctors to refer her to a vascular specialist “elder abuse” or “neglect”? Do you think there should be a separate, additional remedy for her loved ones above and beyond mere medical malpractice (which is capped at $250,000 maximum recovery)?