Case of the Month Past Issues
2nd Quarter, 2004

ELDER ABUSE CASES: HEALTH CARE PROVIDER OR CUSTODIAN?
By Gordon Ownby
CAP-MPT's General Counsel

A new California Supreme Court opinion (Covenant Care, Inc. v. Superior Court) sheds some light on how the courts will look at a health care practitioner’s role when he or she is accused of “abuse” under the Elder Abuse and Dependant Adult Civil Protection Act.

The case centers on the death of an elderly man who had resided at a number of care facilities during the last weeks of his life. Although the case does not involve allegations against doctors, lawyers who defend physicians in elder abuse cases are looking carefully at the Court’s direction in the handling of such cases.

According to the pleadings, the plaintiffs’ father, who suffered from Parkinson’s disease, was left in his bed at the defendant skilled nursing facility, unattended and unassisted, for excessively long periods. The Supreme Court noted that although the father “increasingly could not feed or hydrate himself, he was for long periods not provided with assistance with these activities.” As a result, the court recounted, plaintiffs’ father was inadequately stimulated, became malnourished and lost much of his body weight.

Later, the gentleman was transferred out of the defendant nursing facility to another facility. The family alleged that their father was in such poor condition that, without immediate intervention, he would surely die from starvation, dehydration, and infection. Instead of being transferred to an acute care facility, however, the gentleman was sent to a 24-hour care setting, where he died about a week later.

The issue for the Supreme Court was whether the plaintiffs could amend their complaint for medical negligence to add an elder abuse claim with a request for punitive damages. However, what makes the Covenant Care case so interesting is the Supreme Court’s description of a difference between “medical negligence” versus “egregious acts of misconduct” by a health care provider. Damages under the Elder Abuse Act require more serious misconduct than mere negligence. The Court said: “such misconduct as plaintiffs alleged – intentional, egregious elder abuse – cannot be described as mere ‘professional negligence’ in the ordinary sense of those words.” According to the Court, “neglect,” within the meaning of the Elder Abuse Act, covers an area of misconduct distinct from “professional negligence.”

“As used in the Act, neglect refers not to the substandard performance of medical services but, rather, to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations. Thus the statutory definition of neglect speaks not of the undertaking of medical services, but of the failure to provide medical care.”

It is the Court’s dialogue on the difference between “neglect” and “negligence” and between “health care provider” and “custodian” that will likely frame the issues for physicians caught up in allegations of elder or dependent adult abuse.

The Court stated: “Claims under the Elder Abuse Act are not brought against health care providers in their capacity as providers but, rather, against custodians and caregivers that abuse elders and who may or may not, incidentally, also be health care providers.” “Statutorily, as well as in common parlance, the function of a health care provider is distinct from that of an elder custodian, and the fact that some health care institutions, such as nursing homes, perform custodial functions and provide professional medical care does not mean that the two functions are the same.” While it would seem difficult for a nursing home to escape the label of “custodian,” that may not necessarily be the case for physicians. The Supreme Court’s need to spend so much time explaining the difference between being a health care provider and being a custodian shows how important this distinction will likely become.

Gordon Ownby is general counsel at CAP-MPT.Comments on Case of the Month should be directed to gownby@cap-mpt.com

Back to Top of Page