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, AMNews 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.

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."