Elder Abuse Actions Not Limited To Custodial Care.

Elder Abuse 3Plaintiffs’ 83-year-old mother was not referred to a vascular surgeon over a two-year period during which her diminishing vascular flow worsened without treatment. She developed gangrene and her leg was amputated. Seven months later, she died. Defendants contend they cannot be liable for elder abuse because they treated decedent as an outpatient, and liability for elder abuse “requires assumption of custodial obligations.” The trial court sustained defendants’ demurrer without leave to amend. The appellate court reversed, stating:  “In short, we find no support in the statute or the cases for the claim that a health care provider without custodial obligations is exempt from the Elder Abuse Act.” Defendants also contend the conduct plaintiffs allege constitutes only professional negligence and, as a matter of law, does not amount to the “reckless neglect” required for a claim of elder abuse. Again, the appellate court rejected the argument, stating: “The jury may view defendants’ failure to refer [the decedent] to a vascular specialist as deliberate indifference to her increasingly urgent medical needs without regard for the excessive risk to which they exposed her by their failure to seek appropriate specialized care—that is, as an ‘egregious act[] of misconduct distinct from professional negligence’ (Covenant Care v. Sup.Ct.( Lourdes M. Inclan) (2004) 32 Cal.4th 771 at p. 784, [86 P.3d 290, 297-298, 11 Cal.Rptr.3d 222, 230-231].)” Winn v. Pioneer Medical Group  (Cal. App. Second Dist., Div. 8; May 24, 2013) 216 Cal.App.4th 875.

About Mark Mellor

Mr. Mellor obtained his Bachelor of Science Degree from Cornell University in 1988. While at Cornell he was a member of Cornell University’s National Debate and Forensics Team, repeatedly recognized as an exceptional debater and individual public speaker throughout the country. Mr. Mellor obtained his Juris Doctorate from Southwestern University School of Law in 1992. He was admitted to both the California and the District of Columbia Bars and has been practicing law for over 18 years in both state and federal courts, including the Ninth Circuit Court of Appeals. Mr. Mellor started his own Real Estate and Business Litigation Practice in 2001 and has had three published opinions in the California Courts of Appeal since that time. Mr. Mellor is a past chair of the Executive Committee for the Litigation Section of the State Bar of California and was chair in (2007-2008); vice-chair (2006-2007); treasurer (2005-2006); secretary (2004-2005) and Executive Committee member (2002-2004). He also assists with the State Bar’s Real Estate Section Committee in California. He has special interests in real estate and business litigation involving loan modifications, foreclosures, mechanic’s liens, construction defects, business contracts, business entity formation, and technology.
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