Elder Abuse Lawsuits Under Delaney v. Baker, 20 Cal.4th 23
Bringing Elder and Dependent Adult Abuse Cases After Delaney v. Baker
California Civil Litigation Reporter (Vol. 28:1) December 2006
By Felicia C. Curran
Copyrighted by and Reprinted With Permission Of Continuing Education of the Bar
The Elder Abuse and Dependent Adult Civil Protection Act (the Act) (Welf & I C §§15600-15660) creates civil liability for abuse, neglect, or abandonment of elderly and dependent adults. When the defendant is a licensed health care provider, the key issue confronting a plaintiff’s lawyer evaluating an elder abuse case is whether that provider’s conduct can be characterized as abuse or neglect rather than as simple professional negligence. If the conduct amounts to simple professional negligence, then the Medical Injury Compensation Reform Act of 1975 (MICRA) rears its ugly head, with all of its special provisions favoring the health care defendant, including a $250,000 cap on general damages. See CC §3333.2(b). If MICRA doesn’t apply, then general damages are governed only by rules of reason, as in every other lawsuit. See Perry v Shaw (2001) 88 CA4th 658, 661, 106 CR2d 70. In addition, for “reckless” abuse or neglect, or abuse or neglect committed with “oppression, fraud, or malice,” the Act provides additional enhanced remedies, including a fee shifting of the plaintiff’s attorney fees to the defendant and damages for a decedent’s pre-death pain and suffering. See Welf & I C §15657(a)-(b).
I. DELANEY v BAKER
It is not surprising, therefore, that the key court cases involving the Act have involved how to draw the line between elder or dependent adult abuse or neglect and professional negligence. In Delaney v Baker (1999) 20 C4th 23, 82 CR2d 610, the California Supreme Court handed elderly and dependent adults a key victory by drawing the line in the plaintiff’s favor. In Delaney, the court took up a challenge by a skilled nursing facility that was sued on an elder abuse theory. The decedent, an 88-year-old woman, passed away after 4 months at defendant’s nursing facility. During her stay, she reportedly developed Stage 4 bedsores and was frequently left lying in her own feces and urine. Her family made repeated complaints, but the care didn’t improve. A jury found the nursing facility liable for “reckless neglect” under Welf & I C §15657 and awarded pre-death damages for pain and suffering as well as attorney fees and costs.
On appeal, the defendant argued that licensed health care providers can never be liable for the enhanced remedies of §15657 in connection with the provision of health care services they provide, even if their conduct is reckless. This might sound preposterous on its face, except that there had been many supreme court cases in which the court had broadly interpreted professional negligence to include any conduct directly related to the professional services provided by a health care provider. See, e.g., Central Pathology Serv. Med. Clinic, Inc. v Superior Court (1992) 3 C4th 181, 184, 10 CR2d 208.
The Delaney court soundly rejected the argument that health care providers are exempt from §15657, stating that “[defendant’s argument] would make the determination as to whether the ‘recklessly neglectful’ custodians of an elderly person were subject to section 15657 turn on the custodian’s licensing status: A custodian who allowed an elder or dependent adult in his care to become malnourished would be subject to 15657’s heightened remedies only if he or she was not a licensed health care professional. There is no indication that the Legislature intended this anomaly.” 20 C4th at 35. The court settled on a bright-line rule: “[If the neglect is ‘reckless,’ or done with ‘oppression, fraud, or malice,’ then the action falls within the scope of section 15657.” 20 C4th at 35. The issue, in other words, is not whether the defendant was providing health care services, but rather the degree of culpability of the defendant.
II. MACK v SOUNG
With the Delaney ruling, plaintiffs’ attorneys breathed a sigh of relief. Yet despite Delaney, health care providers continue to argue that they cannot be held liable for elder abuse, and many superior court judges mistakenly agree. In Mack v Soung (2000) 80 CA4th 966, 95 CR2d 830, for example, the defendant physician, who was sued for elder abuse in connection with letting an elderly patient under his care at a nursing home develop bed sores, argued that simply by virtue of his status as a physician, he could not be liable for elder abuse, and the tril court agreed.
The court of appeal quite correctly reversed, holding that, under Delaney, the difference between “reckless neglect” and “medical malpractice” is one of degree, not kind. 80 CA4th at 975, citing Delaney, 20 C4th at 31. Accordingly, the court reinstated the elder abuse claim against the defendant physician on the ground that physicians can be liable under the Act for reckless neglect in providing medical care. The court recognized that “both classes of professionals-health practitioners as well as care custodians-should be charged with responsibility for the health, safety and welfare of elderly and dependent adults.” 80 CA4th at 974.
III. RECKLESS CONDUCT DEFINED
The Act does not define “recklessness.” In Mack, however, the court described the type of conduct that is sufficient to establish “recklessness” for the Act’s heightened remedies (80 CA4th at 972):
Recklessness refers to a subjective state of culpability greater than simple negligence, which has been described as a “deliberate disregard” of the high degree of probability that an injury will occur. Recklessness, unlike negligence, involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions but rather rises to the level of a conscious choice of a course of action with knowledge of the serious danger to others involved in it.
In addition, the Restatement (Second) of Torts describes two types of reckless conduct. In both, the actor knows or has reason to know of facts that create a high degree of risk of physical harm to another and deliberately proceeds to act or fail to act. However, in one type, the actor proceeds “in conscious disregard of, or indifference to, that risk.” In the other, the actor does not realize or appreciate the high degree of risk involved, although a reasonable person in his position would do so. See Restatement (Second) of Torts § 500, Comment a (1965). There is no reason to believe that “recklessness” under the Act does not encompass the Restatement’s second type of reckless conduct, which can be described as a reckless obliviousness to the risk involved to the other individual.
IV. COVENANT CARE v SUPERIOR COURT
The California Supreme Court’s next pronouncement on the difference between reckless abuse or neglect and professional negligence came in Covenant Care, Inc. v Superior Court (2004) 32 C4th 771, 11 CR3d 222, whose holding was another big win for elderly and dependent adults. The issue was whether CCP §425.13(a)-which precludes a plaintiff in an action “arising out of the professional negligence of a health care provider” from pleading a claim for punitive damages in a complaint unless the plaintiff shows a “substantial probability” that he or she will prevail on that claim-applies to elder abuse causes of action.
The court held that §425.13(a) does not apply to punitive damage claims for elder abuse seeking heightened remedies under the Act. 32 C4th at 783. The court focused once again on the remedial nature of the Act, relying on the distinction it had clearly drawn in Delaney between simple professional negligence, which is not subject to the Act’s heightened remedies, and reckless neglect or abuse, which is. 32 C4th at 784.
Unfortunately, in the course of its exposition, the court used language that seemed at odds with Delaney‘s holding that the difference between simple professional negligence and reckless neglect in the provision of health care services relates to the degree of defendant’s culpability, not the kind of services the defendant is performing for the elder or dependent adult (32 C4th at 786):
[Elder abuse as defined in the Act, even when committed by a health care provider, is not an injury that is “directly related” to the provider’s professional services. That statutory elder abuse may include the egregious withholding of medical care for physical and mental health needs is not determinative. As a failure to fulfill custodial duties owed by a custodian who happens also to be a health care provider, such abuse is at most incidentally related to the provider’s professional health care services.
[¶] That is, claims under the Elder Abuse Act are not brought against health care providers in their capacity as providers but, rather, against custodians and care givers that abuse elders and who may or may not, incidentally, also be health care providers.
It would be, at best, peculiar to think that by virtue of these stray and ambiguous remarks the supreme court retracted its lengthy exposition in Delaney bringing health care professionals within §15657’s heightened remedies for reckless neglect. But defense counsel representing health care providers have seized on this language to argue that their clients can only be liable under the Act for “withholding” medical care. Worse still, they argue that their clients have no liability at all unless they performed custodial care services as “elder custodians.” Never mind that this very argument was rejected in Delaney.
V. SABABIN v SUPERIOR COURT
So what’s a lawyer representing an elder or dependent adult to do? In a recent case, Sababin v Superior Court (2006) 144 CA4th 81, ___ CR3d ___, the Second District Court of Appeal addressed this question. Sababin will enable plaintiffs to hold care providers accountable for reckless neglect for failing to take appropriate action, repeatedly or over a significant period of time, when an elderly or dependent adult suffers a decline or change in condition. In Sababin, the family of deceased 38-year-old woman brought suit under the Act against the skilled nursing facility at which the woman had resided for the 3 years before her death. She was a dependent adult by virtue of her Huntington’s chorea disease, which put her at known risk for skin breakdown. While at the facility, she had acquired pressure ulcers, which became infected and led to her death. The trial court granted the facility’s motion for summary adjudication of the dependent adult cause of action, finding that the facility’s conduct amounted to nothing more than professional negligence.
On appeal, the nursing facility argued that under Covenant Care it cannot be held liable for dependent adult abuse unless it had injured the woman “due to a total absence of care.” 144 CA4th at 90. It also contended that it cannot be held liable because “dependent adult abuse arises in the context of custodial care, not in the context of professional negligence” and that there was no evidence of custodial neglect in this case. 144 CA4th at 86.
The court of appeal disagreed (144 CA4th at 90):
If some care is provided, that will not necessarily absolve a care facility of dependent abuse liability. For example, if a care facility knows it must provide a certain type of care on a daily basis but provides that care sporadically, or is supposed to provide multiple types of care but only provides some of those types of care, withholding of care has occurred.
The court relied on the Act’s statutory definition of “neglect,” which includes failing to provide medical care for physical needs and failing to protect from health and safety hazards. See Welf & I C §15610.57(b)(2)-(3). The court continued, “In those cases, the trier of fact must determine whether there is a significant pattern of withholding portions or types of care. A significant pattern is one that involves repeated withholding of care and leads to the conclusion that the pattern was the result of choice or deliberate indifference.” 144 CA4th at 90. This language is certain to be used by plaintiff’s counsel in formulating their jury instructions.
The court also used other language in relation to a care provider’s failure to follow a care plan that plaintiffs’ counsel will find useful in formulating jury instructions: “A trier of fact could find that when a care facility’s employees ignore a care plan and fail to check the skin condition of a resident with Huntington’s chorea, such conduct shows deliberate disregard of the high degree of probability that she will suffer injury.” 144 CA4th at 90. Virtually every elder or dependent adult abuse case involves some medical condition, such as Huntington’s chorea, or other risk factor that makes the elderly or dependent adult especially vulnerable to injury by reason of neglect. This language will provide a basis for a similar jury instruction, adapted to refer to the condition of the particular plaintiff or decedent.
The California Supreme Court and Courts of Appeal have handed elderly and dependent adults significant victories in Delaney and the cases decided by the lower courts in Delaney‘s wake. These rulings will enable the elder and dependent adult abuse statute to fulfill its remedial purposes by providing remedies to plaintiffs outside of the MICRA framework, thereby giving physicians, skilled nursing facilities, and other health care providers an incentive to provide appropriate care to the most vulnerable members of our society.