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Elder abuse claim adds new liability risk for doctors

Legal experts say an appeals court ruling exposes physicians to greater exposure of lawsuits when treating seniors.

By Alicia Gallegos covered legal, antitrust, fraud and liability issues during 2010-13. Connect with the columnist: @legal_med  —  Posted July 22, 2013.

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A physician who allegedly failed to refer a patient to a specialist can be liable for elder abuse, a California appeals court has ruled. The decision by the Court of Appeal for the State of California, 2nd Appellate District, said doctors can be sued for elder abuse for their outpatient treatment of seniors, regardless of whether they had “custodial obligations” to the patient.

Legal experts say the ruling broadens liability for doctors who treat older patients and exposes them to additional legal penalties when negligence claims arise. Plaintiff attorneys in states with similar elder abuse laws probably will use the California ruling as fuel to expand physician liability in their jurisdictions, legal analysts said.

“This is going to open the door for medical malpractice plaintiffs over the age of 65 to start pleading elder abuse in addition to medical malpractice,” said attorney Cassidy C. Davenport, who represents Pioneer Medical Group, the defendant in the case. “This is going to allow them to circumvent tort reform statutes” since elder abuse is not included in such medical liability reforms.

In the California case, Elizabeth Cox, 83, began receiving care at Pioneer Medical Group in Cerritos in about 2000, according to court documents. Several health professionals treated her for onychomycosis, which limits mobility and indirectly impairs peripheral circulation.

In 2007, Cox’s vascular issues worsened, and a Pioneer family physician diagnosed her with peripheral vascular disease, according to court documents. The patient’s condition continued to deteriorate, and she visited Pioneer Medical Group at least seven more times during the next two years complaining of various aliments associated with peripheral vascular disease. She was admitted to a hospital with gangrene in 2009, and her right leg was amputated. She died from blood poisoning in 2010, court documents say.

In 2011, Cox’s daughters sued Pioneer Medical Group and several staff members for elder abuse. The plaintiffs said the medical group’s continued failure not to refer Cox to a vascular specialist constituted abuse and neglect.

The medical group contended it was not liable for elder abuse because doctors treated Cox as an outpatient, and liability for elder abuse “requires assumption of custodial obligations.” The group argued the alleged conduct constituted only professional negligence and not the “reckless neglect” required for an elder abuse claim. A lower court ruled in favor of Pioneer, throwing out the case.

Appeals judges reversed. They sent the case back to the lower court, allowing the elder abuse claim to move forward against Pioneer Medical Group. Whether the defendants’ conduct was reckless is for a jury to decide, the judges said.

“The jury may view defendants failure to refer Mrs. Cox to a vascular specialist as deliberate indifference to her increasingly urgent medical needs without regard for the excessive risk to which they exposed her by their failure to seek appropriate specialized care,” the May 24 opinion said.

Pioneer Medical Group in July asked the California Supreme Court to review the decision. At this article’s deadline, the court had not said whether it would accept the case.

Investigations stem from adult protective laws

The California Medical Assn. was disappointed with the decision, saying it blurs the lines between conduct that falls under the state’s Medical Injury Compensation Reform Act and the Elder Abuse Act. The CMA issued a friend-of-the-court brief in support of Pioneer Medical Group.

“The opinion really will hurt the goals of both MICRA and the Elder Abuse Act,” said Alicia Wagnon, CMA legal counsel. “The facts of this case are so clearly professional negligence. That [these actions] can also be deemed elder abuse is simply wrong, and it really eviscerates MICRA’s definition and the purposes of MICRA.”

All states have some form of adult protective services statutes that authorize and regulate investigation of elder abuse cases. Generally, APS laws establish a system for the reporting and review of elder abuse claims and for the provision of social services to help victims, according to the American Bar Assn.’s Commission on Law and Aging. Most jurisdictions also have separate elder abuse laws that provide for civil or criminal damages in cases of elder abuse and neglect, either by individuals or institutions.

The intent of such laws is to prevent custodians from abusing and taking advantage of elderly patients, Davenport said. She notes the majority of elder abuse claims arise in the nursing home context and involve repeated acts of ignoring an elderly patient’s basic needs such as adequate food and water.

“We have an aging population in nursing homes [who are at risk] for being abused physically and financially,” she said. Elder abuse laws are intended “as an incentive to go after those who are abusing these elders. It wasn’t to say elders get extra incentive to sue the physician for medical malpractice.”

The California ruling confirms that physicians should be held responsible for recklessly failing to provide necessary medical care, said Clay Robbins III, the plaintiffs’ attorney.

“Merely because a person withholding [medical care] also happens to be a physician should not have bearing as to whether that individual should be responsible for the enhanced remedies under the act,” he said.

Jury awards not covered by insurers

The ruling is concerning for physicians who treat elderly patients, said William E. Hopkins, a health law attorney and partner at Brown McCarroll in Texas.

“Physicians are now on notice that they’re not just being judged on a negligence standard; they’re now being judged on negligence and this other standard,” he said. “I would not be surprised if [elder abuse] is pled in most cases where there’s some level of medical negligence with elderly people.”

Hopkins said Texas has an elder abuse law similar to California’s, and that he can foresee a similar case playing out in his state.

“This is the kind of case that certainly will have plaintiffs lawyers’ minds working with regard to, “Is this something I should be pleading?’ ” he said. “They’re going to pull the elder abuse act in their state and see if this kind of argument applies.”

If the decision stands, physicians found liable of elder abuse would be forced to pay jury awards out of pocket, Davenport said. Insurance policies generally do not cover elder abuse claims. Fear of such payments probably would lead to more settlements, she said.

The decision jeopardizes doctors’ professional medical judgment and could negatively affect patient care, said Bret C. Perry, an Ohio medical liability defense attorney who defends physicians, assisted-living facilities and nursing homes.

“The practice of medicine and decisions made on a daily basis by physicians and health care professionals cannot be legislated, and those decisions clearly fall within the purview of professional judgment,” he said in an email. “If this ruling is permitted to stand, I can foresee a chilling effect and negative impact on the future of medical care for the elderly and potentially an exodus of professionals leaving the state due to this type of potential liability.”

Alicia Gallegos covered legal, antitrust, fraud and liability issues during 2010-13. Connect with the columnist: @legal_med  — 

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External links

Kathleen A. Winn et al. v. Pioneer Medical Group et al., Court of Appeal of the State of California, Second Appellate District, May 24 (link)

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