DEFENDING THE PHYSICIAN IN THE ELDER/DEPENDENT ADULT ABUSE CASE
Physicians in California who care for the elderly or for developmentally disabled adults can now be sued not only for medical malpractice, but also for violating the state Elder Abuse and Dependent Adult Civil Protection Act. The primary advantage for patients who sue under the Elder Abuse Act is that they can now recover the cost of hiring an attorney, and in cases where the patient is deceased, the next of kin can now recover for the patient's pain and suffering before death.
Physicians can be sued under the Act for both physical abuse, such as the unreasonable use of physical restraints, and neglect, such as a negligent failure to exercise care, failure to provide medical care, or failure to prevent malnutrition or dehydration.
However, for a physician to be found liable for violating the Act, a jury must find by clear and convincing evidence that the physician acted with recklessness, oppression, fraud, or malice in physically abusing or neglecting the patient.
The standard of clear and convincing evidence means that a jury must find that there is a high probability that the physician acted with recklessness, oppression, fraud, or malice in violating the Act.
To find that a physician acted recklessly means that the a jury must find that the physician made a conscious choice to act with knowledge of the serious danger involved, or knew that there was a high degree of probability of harm to the patient. To find that a physician acted in an oppressive manner means that a jury must find that the physician engaged in despicable conduct and subjected the patient to cruel and unjust hardship in conscious disregard of the patient's rights. To find that a physician acted fraudulently, the jury must find that the physician made an intentional misrepresentation or concealment of a material fact to deprive the patient of his or her rights. To find that a physician acted with malice, the jury must find that the physician's actions were intended to cause injury or that the physician acted in a despicable manner with willful and conscious disregard of the rights and safety of the patient.
Because the actions necessary to constitute a violation of the Act are essentially identical to that necessary to find an award for punitive damages, a jury that finds that a physician has violated the Act may award punitive damages against the physician as well. The amount of punitive damages that can be awarded by a jury is determined by considering the reprehensible nature of the physician's actions, and whether a punitive damage award would possibly deter future wrongful conduct after considering the physician's financial status. There must also be a reasonable relationship between the award and the actual injury suffered by the patient.
A jury that finds that a physician has violated the Act may award attorney's fees to the patient. Attorney's fees may be awarded because the lawsuit improved the quality of life for the patient. The award for attorney's fees may be lowered if that the physician took reasonable and timely actions to determine if he or she was liable, and if the physician made a reasonable and timely written offer of settlement.
In medical malpractice cases where the patient has died, the next of kin cannot recover for the patient's pain and suffering before he or she died. However, in Elder Abuse Act cases, the next of kin can recover for the patient's pain and suffering before death. Fortunately for physicians, recovery for the decedent's pain and suffering is still limited to $250,000 under MICRA.
Other protections for physicians under MICRA are not available for awards under the Elder Abuse Act. These MICRA protections include the admissibility of collateral sources of payment for medical expenses such as health insurance, restrictions on the fees earned by counsel for the patient, and the right to pay awards for future medical expenses on a periodic basis. Nevertheless, if a cause of action for medical malpractice is also alleged in the lawsuit, the MICRA protections ought to apply to any award under that theory of liability.
If a physician is sued for a violation of the Elder Abuse Act, the physician should know that recovery for punitive damages cannot be alleged in the complaint absent a court order after the patient shows the court that there is a substantial probability of a finding of recklessness, oppression, fraud, or malice against the physician. This protection for physicians in medical malpractice actions still applies to Elder Abuse Act allegations.
The physician should consider the advantages of an early written settlement offer only because if the patient refuses to settle and fails to recover a more advantageous settlement or judgment, the patient may not be able to recover any attorney's fees earned by his or her attorney after refusing the early written settlement offer.
Because most violations of the Elder Abuse Act would appear to be considered intentional acts, a physician may not have any insurance coverage for an award under the Elder Abuse Act. Punitive damages awarded against the physician are not covered by insurance as well. Attorneys for patients may recognize that recovering a judgment against a physician personally rather than against his or her insurer may be problematic. However, those same attorneys will recognize that Elder Abuse Act allegations in a medical malpractice action may provide physicians with additional incentive to demand that their insurers settle the entire lawsuit on their behalf.
The Elder Abuse Act provides some enhanced remedies for patients, primarily in the form of recovery for attorney's fees and for pain and suffering even after the death of the patient. However, because the standards for finding a violation of the Elder Abuse Act is roughly the equivalent of a finding of punitive damages, it can be said that the Elder Abuse Act does not dramatically alter the playing field in medical malpractice cases. However, the primary danger the Elder Abuse and Dependent Adult Civil Protection Act holds for physicians is increased scrutiny and attention, and the increased potential exposure to liability, for physicians who treat the elderly and the developmentally disabled adult as a part of their practice.
