Hospital Off the Hook for Elder-Neglect Claim

     LOS ANGELES (CN) — An outpatient health care provider cannot be held liable for neglect for not advising an elderly patient to see a specialist before her leg was amputated, the California Supreme Court ruled.
     Kathleen Winn and Karen Bredahl sued Pioneer Medical Group Inc. and several physicians in 2010 after their elder mother, Elizabeth Cox, died of blood poisoning just months after having one of her legs amputated just above the knee.
     Citing the Elder Abuse and Dependent Adult Civil Protection Act, the daughters contend that the physicians are liable for neglect since they never recommended that their mother see a vascular specialist as her leg condition worsened.
     Cox was diagnosed in 2007 with peripheral vascular disease since she had limited blood flow in her lower legs, but a doctor did not refer her to a vascular specialist, according to court records.
     Winn and Bredahl claim another doctor still did not recommend she see a specialist a year after Cox was noted to have increased tissue damage. Instead, her infection was drained and she was told to come back for a follow-up visit, according to the daughters’ lawsuit.
     Cox reportedly saw two other physicians over the next year that treated her for various issues associated with the underlying problem, including painful wounds that would not heal.
     Foot soaks, topical creams, special shoes, and medications were prescribed, and her abnormal weight loss was noted, but Cox was allegedly never referred to a specialist.
     In March 2009, Cox was admitted to the hospital for gangrene since her legs were not getting adequate blood supply. She was suffering from sepsis and her foot was black, court records show.
     Cox had to have her right leg amputated below the knee a month later. Two months after the initial amputation, she had to undergo a second amputation above the same knee.
     She died after being hospitalized for blood poisoning in January 2010.
     The health care providers challenged the California Court of Appeals’ decision that the Elder Abuse and Dependent Adult Civil Protection Act does not require the existence of a custodial relationship in order for the daughters to claim neglect.
     After considering whether or not a claim of neglect under the Act requires a custodial or caretaking relationship on the part of a defendant, the full California Supreme Court concluded that it does.
     Writing for the seven-judge panel, Justice Mariano-Florentino Cuéllar ruled Thursday that the Legislature intended the law to address neglect by caretakers that assume “a significant measure of responsibility for attending to one or more of an elder’s basic needs that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.”
     The Act is intended to impose safeguards for vulnerable, dependent adults and elders who rely on others for their basic needs, since they are “at the greatest risk of abuse, neglect or abandonment by their families and caretakers.”
     Cuéllar ruled that Winn and Bredahl cannot bring a neglect claim under the Elder Abuse and Dependent Adult Civil Protection Act “unless the defendant health care provider has a caretaking or custodial relationship with the elder or dependent adult.”
     “Whether a determination that medical care should be provided is made by a health care provider or not, it is the defendant’s relationship with an elder or a dependent adult — not the defendant’s professional standing or expertise — that makes the defendant potentially liable for neglect,” the judge wrote.
     The lead attorneys for both parties commented on Thursday’s ruling.
     “I’m very pleased the Supreme Court got it so right,” said Richard Carroll of Carroll, Kelly, Trotter, Franzen, McKenna & Peabody, attorney for Pioneer Medical Group and the physicians. “It demonstrates insight into how this whole thing plays out.”
     However, Winn and Bredahl’s attorney, Clay Robbins III of Magana, Cathcart and McCarthy, called the ruling “disappointing and unfortunate.”
     “The opinion seems to require an elderly person to be disabled or incompetent before they will be afforded the Act’s protections. The narrow interpretation has stripped elders of an important protection since neglect can and does take place outside the setting of care taking facilities,” Robbins said. “Elders rely on the advice of their physicians, and the physicians should have known to refer Elizabeth Cox to a specialist. Unfortunately, their neglect caused Mrs. Cox to lose a leg. It is now up to the Legislature to correct this and to give the elderly the protection they deserve.”

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