Caretaking Relationship Required for Elder Abuse Action Against Physicians – Winn v. Pioneer Medical Group, 63 Cal. 4th 148 (2016), by Rae Y. Chung.
This is a guest Trial Call post by Rae Y. Chung on Winn v. Pioneer Medical Group, the recent California Supreme Court case addressing Elder Abuse actions against physicians. Rae is an incoming 3L at UCLA School of Law and a summer clerk at Henderson, Caverly, Pum & Charney LLP.
In Winn v. Pioneer Medical Group, Inc., 63 Cal. 4th 148 (2016), the California Supreme Court addressed the requirements and limitations of the Elder Abuse Act under California Welfare & Institution Code Section 15657 as applied to actions against physicians. The Court in Winn interpreted Welf. & Inst. Code Section 15657 to require as a precondition to any action for neglect against a physician the existence of a certain caretaking relationship between the decedent elder and the defendant physician. This decision will make it substantially more difficult for personal representatives of decedents to successfully bring elder abuse actions against defendant physicians.
This case arose when the daughters of the decedent sued the defendant physicians for elder abuse along with their medical malpractice action. The decedent elder had sought medical care from the defendant physician from 2000 to 2009 on an outpatient basis. Throughout the years, the physicians noticed various symptoms of peripheral vascular disease and gangrene but the physicians never referred her to a specialist. In early 2009, the decedent was admitted to hospital, where her leg was amputated and she subsequently died from blood poisoning. The decedent’s daughters sued, asserting the physician’s failure to refer an elder patient to a specialist constituted neglect under the Elder Abuse Act.
The Court held that a caretaking or custodial relationship is a requirement for bringing suit for neglect under the Elder Abuse Act. The Court held that the focus of Welf. & Inst. Code Section 15657 is on the nature of the relationship between an elder and a defendant physician, not on the defendant physician’s professional standing.
The Elder Abuse Act enhances recoverable damages for physical abuse or neglect of elders. Under California Code of Civil Procedure Section 377.34, the damages recoverable for a civil action brought by decedent’s personal representative are usually limited to pre-death penalties or punitive damages, but exclude pre-death pain, suffering or disfigurement. However, the Elder Abuse Act establishes heightened remedies by allowing the plaintiffs to recover damages for pre-death pain and suffering. The ruling in Winn precludes plaintiffs access to such enhanced damages in abuse actions against physicians under the Act unless they can plead and prove the existence of a “caretaking or custodial relationship”.
The Court’s decision in Winn was seemingly driven by policy considerations. The Elder Abuse Act establishes heightened remedies. Allowing plaintiffs to proceed against physicians under the Act and expose physicians to the enhanced remedies under the Act, in addition to potential professional negligence exposure and in the absence of any caretaking relationship requirement was seemingly viewed by the Court as overly harsh.
Thus, after Winn, it will be harder for plaintiffs to plead neglect under the Elder Abuse Act against physicians. Therefore, when proceeding against a physician for physical abuse or neglect under the Elder Abuse Act, plaintiffs will be required to plead and prove a substantial personal and caretaking relationship between the elder and the physician. In that regard, plaintiffs may consider the following issues:
- Whether the physician was seen on an outpatient or inpatient basis;
- Whether the physician was in a position to initiate or deprive an elder of medical care;
- Whether there was anyone other than the physician who controlled the scope of elder patient’s medical care; and
- The number of years the physician took care of the elder patient.