In Winn v. Pioneer Medical Group, (May 19, 2016, S211793), the California Supreme Court held that a claim of neglect under the Elder Abuse Act requires a caretaking or custodial relationship wherein the defendant has assumed significant responsibility for attending to one or more of the basic needs of the elder or dependent adult that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.
In Winn, Plaintiffs, daughters and surviving heirs sued a medical clinic for neglect under the Elder Abuse Act based on allegations that three doctors who had seen Decedent over the course of several years relative to impaired vascular flow in the lower legs had failed to refer her to a vascular specialist. Decedent was eventually admitted to the hospital with symptoms consistent with ischemia and gangrene, became septic, and died. Plaintiffs initially filed a complaint alleging medical negligence and later filed an amended complaint alleging elder abuse, on the claims that defendants consciously failed “to make a vascular referral.”
The trial court sustained defendants’ demurrer to the first amended complaint without leave to amend on grounds that Plaintiffs’ allegations only sounded in professional negligence and that absent malice, oppression, or fraud, Plaintiffs could not support a claim of neglect under the Elder Abuse Act. In a split opinion, the Court of Appeal reversed and held that the Elder Abuse Act does not require the existence of a custodial relationship in order for the plaintiff to establish a cause of action for neglect. In dissent, Presiding Justice Bigelow criticized the majority as blurring the lines between Elder Abuse Act neglect and professional negligence because the gravamen of Plaintiffs’ claim is one of professional negligence, not elder abuse.
The Elder Abuse Act provides for heightened damages to allow for a plaintiff’s recovery of attorney's fees and costs as well as damages for pre-death pain, suffering, and disfigurement. (Welf. & Inst. Code §15657.) In order to obtain these heightened damages, a plaintiff must prove by clear and convincing evidence that the defendant is liable for either physical abuse under section 15610.63 or neglect under section 15610.57 and that the defendant committed the abuse with “recklessness, oppression, fraud, or malice.” (§15657.) The relevant definition for neglect in the Winn case was “[t]he negligent failure of any person having the care or custody of an elder or dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” (Welf. & Inst. Code §15610.57, subd. (a)(1), emphasis added.) Section 15610.57 includes the following examples of neglect which the Supreme Court found instructive: (1) failure to assist in personal hygiene, or in the provision of food, clothing, or shelter; (2) failure to protect from health and safety hazards; and (3) failure to prevent malnutrition or dehydration. The Court interpreted these examples as contemplating the existence of “a robust caretaking or custodial relationship….where a certain party has assumed a significant measure of responsibility for attending to one or more of an elder’s basic needs.” The Court reasoned that “the failure to provide medical care assumes that the defendant is in a position to deprive an elder or dependent adult of medical care.” Merely failing to refer a patient to a specialist did not deprive her of medical care.
Ultimately, it is the defendant’s relationship with the elder or dependent adult – not the defendant’s professional standing or expertise – that makes the defendant potentially liable for neglect. The Elder Abuse Act was not meant to encompass every act that fits either legal or colloquial definitions of neglect. As the Winn Court noted, the Legislature enacted a scheme distinguishing claims of professional negligence and neglect because certain situations place elders and dependent adults at elevated risk of harm, and heightened remedies relative to conventional tort remedies are appropriate as a consequence. “Blurring the distinction between neglect under the Act and conduct actionable under tort remedies – even in the absence of a care or custody relationship – risks undermining the Act’s central premise.”
This ruling should deter elder abuse claims where a physician treats a patient episodically. The Court distinguished its prior decisions in Delaney v. Baker (1999) 20 Cal.4th 23 and Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771 because in those cases, the defendants had explicitly assumed responsibility for attending to the elder’s most basic needs, thereby establishing a custodial relationship. The Court also disapproved of the ruling in Mack v. Soung (2000) 80 Cal.App.4th 966 to the extent it finds claims of neglect under the Elder Abuse Act may be brought irrespective of a doctor’s caretaking or custodial relationship with an elder patient. As a result of the Winn decision, courts should be more likely to sustain a demurrer on a claim under the Elder Abuse Act where the facts of the complaint fail to establish a substantial caretaking or custodial relationship.