Case of the Month Past Issues
4th Quarter, 2003

CASE OF THE MONTH:  ELDER ABUSE ACT APPLIES TO MORE THAN JUST ELDERS
By Gordon Ownby
CAP-MPT's General Counsel

Since 1991, California law has provided special incentives for individuals to hire attorneys to “take up the cause” of abused elderly persons and dependent adults. Under the “Elder Abuse and Dependent Adult Civil Protection Act” these incentives include the recovery of attorneys fees and an award of non-economic damages for the pain and suffering of a decedent. Neither of these enhanced remedies is available in a generic medical malpractice case.

During most of these years, it was generally safe to casually refer to the law as the “Elder Abuse Act” as virtually all of the activity by attorneys was against nursing homes for elderly patients.

While lawsuits against elders still make up the bulk of such suits, the law also provides for enhanced remedies for “abuse” suffered by certain “dependent adults.” The Court of Appeal caused a stir earlier this year when it interpreted the statute to include any adult admitted as an inpatient to a 24-hour health care facility as within the law’s scope. (Keep in mind that facts alleged in the Court of Appeal opinion in Marron v. Superior Court of San Diego have not been accepted by a jury.)

On August 23, 2000, Lidia Marron, 44 years old, entered a UC hospital for a liver biopsy. During the procedure, the biopsy needle perforated her middle colic vein, damaging her abdominal viscera. Following emergency surgery, Lidia was admitted to the hospital’s intensive care unit. During her two-month hospital stay, Lidia suffered such complications as fungus infection in her blood and lungs, peritonitis, intra-abdominal and pelvic abscesses, sepsis syndrome, hypotension, fevers, abdominal pain and hemorrhaging. She returned three days after discharge with spiking fever. She was discharged again after nine more days but returned after 12 hours with fevers, chills, and severe pain. A CT scan showed an intra-abdominal abscess. Lidia became progressively septic, was diagnosed with an enterocutaneous fistula, and died six weeks later.

Lidia’s parents sued her daughter’s health care providers for wrongful death and “dependent adult abuse.” The abuse allegations alleged that the health care providers “failed to exercise the requisite degree of care but rather acted recklessly in the failure to appropriately and adequately care for, monitor, and treat Lidia Marron’s declining health.” The complaint also alleged that the health staff “failed to assist in personal hygiene” and caused her to “suffer protracted pain, discomfort, mental suffering, indignity and humiliation” up to her death.

Lidia’s health care providers asked the judge to decide certain issues in the case by applying the law to the allegations. The health care defendants contended that Lidia did not fall within the protected persons under the Act because there was no evidence she suffered from a disability that precluded her from carrying out normal activities or from being able to protect her rights.

The Court of Appeal, however, ruled that under one of the Act’s definitions of a dependent adult, all that was required was that the person “be between the ages of 18 and 64 who is admitted as an inpatient in a 24-hour health facility.” In other words, by being admitted to the facility, Lidia did not need to meet the other definition of a dependent adult under the Act, that is, one “who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or rights.”

The San Diego appellate court’s holding in Marron v. Superior Court will certainly be challenged by lawyers for health care providers in other parts of the state. Should another appellate court interpret the law differently, the California Supreme Court could issue its own interpretation of the Act.

For now, however, the Marron case stands as legal authority and should alert health care providers setting that any allegations of abuse, abandonment or reckless neglect involving their hospitalized adult patients could constitute a claim under the Elder Abuse and Dependent Adult Civil Protection Act. Such exposure makes it all the more important to fully document your care of the patient and your instructions to the nursing staff.

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

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