Berge & Berge, LLP Blog

Thursday, July 14, 2016

California High Court Limits Applicability of Elder Abuse Statute in Neglect Lawsuit

When does California's Elder Abuse and Dependent Adult Civil Protection Act apply to a healthcare provider's neglect of an elderly patient?

When the California legislature enacted the Elder Abuse and Dependent Adult Civil Protection Act, it aimed to protect the elderly from a wide range of problems, from physical neglect and mistreatment to financial abuse. But, according to a recent case, the law may not apply to those who do not have a "custodial" relationship with the elderly victim.

Children Sue Outpatient Medical Group for Negligent Treatment of Their Mother

The plaintiffs in the California litigation sued an outpatient medical group and several of its doctors for negligence and incompetence when their elderly mother died after the amputation of one of her legs.

Several years before her death, the patient had been diagnosed with peripheral vascular disease, with poor blood flow in her legs. She saw doctors at the medical group repeatedly for problems that included tissue damage, infections, and wounds that would not heal. While they prescribed foot soaks, topical creams, special shoes and other treatments, they never sent her to a vascular specialist. By the time she was hospitalized, she had sepsis and gangrene. She required two amputations but passed away from blood poisoning not long after.

In their lawsuit, the plaintiffs claimed the outpatient clinic's failure to recommend a vascular specialist as their mother's leg deteriorated constituted neglect, in violation of California's  Elder Abuse and Dependent Adult Civil Protection Act.

Court Rules that Law Only Applies to Elders Who Are In a Caretaking or Custodial Relationship

After a seesaw battle in the lower courts, the California Supreme court sided with the defendants, ruling that the Act requires that there be a "custodial or caretaking relationship" before its protections apply. Its intent, they said, was to protect elders who depend on others for basic needs and who are most vulnerable to abuse or abandonment.

The defendant in this case was not sufficiently disabled or incompetent and was not in a custodial relationship with the defendant, an outpatient clinic. The plaintiffs criticized the outcome, noting that abuse and neglect can occur even outside of custodial setting, and they called for a change in the law

Elder abuse takes many forms, from physical mistreatment and neglect to financial fraud and abuse. As this case shows, the Elder Abuse and Dependent Adult Civil Protection Act is not always available. There may still be alternative legal remedies to pursue if your loved ones have been victimized, whether by an eldercare professional or by others. The first step is to consult an experienced elder law attorney who can evaluate your case and help you weigh your options.

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