Elder abuse ruling could hurt California tort law

Physicians fear the decision expands the definition of "dependent adult" and heightens the potential for malpractice lawsuits.

By Tanya Albert, amednews staff. Sept. 1, 2003.

California physicians fear that a recent court interpretation of the state's Elder Abuse and Dependent Adult Civil Protection Act ultimately could undermine tort reform that's been held up as a national model for keeping medical liability insurance rates stable.

The California Court of Appeal in Los Angeles ruled that the family of a 44-year-old woman could go forward with a lawsuit against a hospital and a physician claiming that dependent adult abuse took place, as well as medical malpractice. The family says the woman went in for a liver biopsy during which a needle perforated her middle colic vein. The woman had emergency surgery and was admitted to the intensive care unit where she had various complications. She was discharged, but later developed an intra-abdominal abscess, became progressively septic and died.

Case at a glance
See related content
Topic: Liability crisis
Region: West

The court said the law gives an alternative definition of dependent adult that includes any person between ages 18 and 64 who is admitted as an inpatient to a 24-hour health facility.

That's significant, physicians say, because it expands physicians' liability and will open them up to financial obligations that they otherwise wouldn't be exposed to under the Medical Injury Compensation Reform Act of California.

MICRA, which is California's tort reform, includes a $250,000 cap on noneconomic damages and a provision that doesn't allow family members of a deceased patient to sue for pain and suffering in a medical malpractice lawsuit.

"The case represents the trial lawyers trying to push the law as far as they can," said Susan L. Penney, the CMA's legal counsel. "It will have an impact on the litigation costs in California."

The University of California San Diego Medical Center and other defendants in the lawsuit, Marron v. Superior Court, did not appeal the court of appeal decision to the Supreme Court of California. But the California Medical Assn., California Dental Assn. and California Healthcare Assn. asked the Supreme Court of California to depublish the opinion so it wouldn't remain case law.

The court in August ruled that it wouldn't depublish the opinion, letting the case law stand.

Doctors say case expands law

The CMA and other health care professionals argue that this ruling expands the Elder Abuse and Dependent Adult Civil Protection Act in a way the Legislature never intended when it passed the law in 1991. Further, they worry that expansion eventually could hurt the health care system.

First, the CMA says, the court expanded the definition of "dependent adult" to include more than just a person "who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age."

"The court's expanded definition could be interpreted to mean that anyone over the age of 18 admitted as a hospital inpatient qualifies as a dependent adult," Penney said.

Second, the CMA says, the court lowered the standard of proof for reckless conduct. The court said that showing that something wasn't done for a patient can prove that there was "reckless neglect."

For example, if something happened because there was a shortage of nurses, and administrators knew there was a shortage, that could be considered reckless neglect under the protection act.

And in those expansions lies the concern: If recklessness can be established, it opens the door for families to sue for pain and suffering for a loved one's death. They would be limited to the $250,000 capped award, but it is an award that wouldn't be available to them under MICRA. It also allows for attorneys' fees and costs.

"It will have an impact on litigation costs in California," Penney said. "We need to watch what happens down the road and look at the types of causes of action being filed in acute care settings under this act."

It's too soon to know what kind of an impact the ruling could have on litigation costs. But plaintiff attorneys involved with elder and dependent adult abuse cases don't believe it will be significant.

"I don't think it changes the law," said San Diego attorney Lou Arnell who represents the plaintiffs in the case, Pedro Marron and Mario Marron.

"It doesn't get around MICRA. The Legislature passed the elder and dependent abuse act and reinstated damages that previously had been taken away," Arnell said.

No increase predicted

San Francisco lawyer Kathryn Stebner, who also litigates elder abuse and dependent adult cases, agrees that it doesn't change the law. She said more cases might be filed, but she does not see it leading to an increase in the number of physicians found guilty under the act.

"You still have to prove reckless neglect," Stebner said. "It's not like it's an easy thing to prove."

Also, she said, most medical malpractice cases involve a single event and aren't the result of a systemic problem, as is typically the case in elder abuse and dependent adult cases.

"I can see why if I were a physician I'd be nervous" about the implications of the ruling, Stebner said. "But when you look at it, most elder abuse cases are against nursing homes."

The Marron case has yet to go to trial on its merits.

This ruling comes out of a pretrial motion.

ADDITIONAL INFORMATION:

Case at a glance

Marron v. Superior Court

Venue: Supreme Court of California
At issue: The California Medical Assn. and others asked the court to depublish a lower court opinion they believe expands physician liability under the state's Elder Abuse and Dependent Adult Civil Protection Act. The court said no.
Potential impact: The CMA fears that the opinion expands the definition of the law and gives plaintiffs' lawyers a way to get around MICRA, the state's tort reform, which is credited with keeping medical liability insurance affordable.