California tort reform shaken by abuse laws as court creates inpatient loophole

States with proven tort reforms routinely fight lawsuits designed to erode physician protections.

By Tanya Albert amednews correspondent — Posted May 17, 2004

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California physicians are bracing for what they fear could be a whirlwind of lawsuits making claims for punitive damages that will be exempt from the state's nationally recognized tort reform protections.

The California Supreme Court recently decided that the strict rules that plaintiffs in medical malpractice cases have to follow to ask for punitive damages don't apply in cases alleging wrongdoing under the Elder Abuse and Dependent Adult Civil Protection Act.

The court said elder abuse claims go beyond the typical professional negligence claims made in medical malpractice lawsuits and that people who commit egregious acts shouldn't be afforded the same protections they would receive in a case dealing solely with medical malpractice.

The ruling has doctors especially concerned because a state appellate court in 2003 defined a dependent adult to include any person between 18 and 64 years who is admitted as an inpatient to a 24-hour health facility.

"We think it's an unfortunate decision," California Medical Assn. legal counsel Susan L. Penney said. "[This ruling] will draw allegations of elder abuse in every malpractice case, so that plaintiffs have leverage to file for punitive damages."

If elder and dependent adult abuse charges are increasingly tacked on to traditional medical malpractice cases, the CMA expects there will be more meritless claims made for punitive damages.

That could result in more doctors settling claims rather than taking their chances before a jury.

"Physicians by and large feel that the law is inappropriately targeting those who are not prime suspects in elder abuse cases," said Redlands, Calif., family physician and geriatrician Frank Randolph, MD. "We don't believe the California Legislature wanted to target the rank-and-file physicians with the law."

But the concern doesn't stop there.

The CMA, California Dental Assn. and California Healthcare Assn also worry that the ruling could open the door to further attacks on the Medical Injury Compensation Reform Act, the state's nearly 3-decades-old tort reform that doctors across the country hold up as the gold standard for keeping the medical liability insurance market stable.

"If one procedural restriction is overcome by the pleading of an elder abuse claim, why should a trial court uphold other procedural and, more importantly, substantive restrictions of MICRA?" the CMA, CDA and CHA wrote in an amicus brief they jointly filed with the court before it ruled in Covenant Care v. Superior Court.

California is one of only six states that the American Medical Association reports is not showing signs of a medical liability insurance crisis. The AMA says the 19 crisis states are in that predicament because they don't have the tort reform California does.

"We have MICRA," Penney said, "but if the courts erode those protections, we will end up in a crisis situation similar to other states."

Glimmer of hope?

Although the state Supreme Court's decision might open the door for MICRA challenges, it also could provide some definitions that will help physicians defend themselves against meritless elder and adult abuse claims. "The court tried to soften the blow by tightening up the definitions," said Los Angeles attorney Curtis A. Cole, who helped write the CMA, CDA and CHA brief and argued before the court.

In elder and adult abuse cases, plaintiffs have had to prove malice, fraud, oppression or recklessness to make a claim. The first three required extreme or "despicable" behavior. But recklessness was not as strictly defined, Cole said. In the Covenant Careopinion, though, the court said recklessness should be defined like the other three triggers, requiring that the act be despicable behavior.

The definition of neglect was tightened, Cole said. "Neglect is more than negligence. It is egregious conduct."

And the court strengthened the idea that elder and dependent adult abuse applies to "custodial" care rather than "medical care."

"Doctors rarely, or if ever, give custodial care," he said. "Nursing homes or hospitals give custodial care."

The best possible outcome for doctors would have been for the court to rule that plaintiffs alleging elder abuse would be subject to the same time limits to amend their complaints to include punitive damages as they would in medical malpractice cases. However, the opinion appears to give doctors "some leverage."

"When doctors are sued for elder abuse, especially when it's added on to a medical malpractice case, they need to be active in directing their attorneys to remove the claims as early as possible," Cole said.

Tort reform challenges common

Defending tort reform is a constant battle for physicians and their attorneys.

Other states have seen an increase in the number of doctors named in elder and dependent adult abuse statutes, but the law has not been used to erode tort reform protections as it now has in California. Nonetheless, states such as Wisconsin, Indiana and Louisiana have encountered numerous other challenges to their established damages caps.

In Louisiana, the courts have determined that a number of scenarios don't fall under the state's cap. For example, equipment failures are exempt, as are claims from someone injured by a patient when that patient's doctor should have acted to prevent it.

Wisconsin has been fortunate.

"There are always challenges," said Mark L. Adams, Wisconsin Medical Society general counsel.

But, he said, tort reform advocates have held back attempts to significantly change the protections.

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Case at a glance

Venue: California Supreme Court
At issue: The court ruled that laws in place to curb meritless and late demands for punitive damages do not apply when physicians or other caregivers are sued under the elder abuse statute.
Potential impact: Physicians and other practitioners worry that plaintiffs will routinely add elder abuse claims to lawsuits, resulting in the need to defend meritless punitive damages claims. Doctors say the threat of punitive damages also increases the odds of them settling claims they otherwise would take to juries.

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