Elder Abuse:  Outpatient Treatment

Winn v. Pioneer Medical Group, Inc. (2013)  216 Cal. App. 4th 875, 157 Cal.Rptr.3d 124

The heirs of an 83-year old woman who died of blood poisoning several months after two amputation surgeries due to gangrene, filed a complaint for elder abuse against a medical group and physicians who had been caring for her on an outpatient basis for several years prior to her hospitalization. The plaintiffs alleged that the decedent had suffered from impaired vascular flow which the defendants had charted but ignored for years, and that they should have referred her to a specialist in vascular care.

The trial court sustained the defendants’ demurrer without leave to amend, finding that the plaintiffs had failed to provide facts showing that care had been rendered in a reckless sense as is required under the Elder Abuse Act. However, the court of appeal reversed, finding the question of recklessness was for a jury to decide, and rejecting the defendants’ contention that outpatient care does not fall within the scope of the Act:

Defendants contend they cannot be liable for elder abuse because they treated decedent as an outpatient, and liability for elder abuse “requires assumption of custodial obligations.” They also contend the conduct plaintiffs allege constitutes only professional negligence and, as a matter of law, does not amount to the “reckless neglect” required for a claim of elder abuse.

Defendants are mistaken on both points. The elder abuse statute does not limit liability to health care providers with custodial obligations, and the question whether defendants’ conduct was reckless rather than merely negligent is for a jury to decide.

. . .
The statutory language simply does not support defendants’ contention that only “care custodians” are liable for elder abuse. (In any event, we find persuasive plaintiffs’ argument that these defendants are, indeed, care custodians; the definition of “care custodian” in section 15610.17 includes “[c]linics” (§ 15610.17, subd. (b)), and these defendants provided medical care to Mrs. Cox at two of their clinics.)

Defendants insist that language in Delaney and Covenant Care shows that liability under the Act is limited to those with custodial obligations. We are not persuaded. The cases cited do indeed have language referring to custodial obligations. This is not surprising, since the cases involved claims against nursing homes or skilled nursing facilities, that is, defendants that, without question, owed custodial obligations to elders. Delaney found “the legislative history suggests that nursing homes and other health care providers were among the primary targets of the Elder Abuse Act” (Delaney, supra, 20 Cal.4th at p. 41, 82 Cal.Rptr.2d 610, 971 P.2d 986), but Delaney and the other cases defendants cite do not support the broad proposition defendants assert, that the protection of the Elder Abuse Act was intended only for those in nursing homes, skilled nursing facilities, and the like.

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