California Court of Appeals, Second District, Eighth Division
KATHLEEN A. WINN et al., Plaintiffs and Appellants,
PIONEER MEDICAL GROUP, INC., et al., Defendants and Respondents.
APPEAL from a judgment of the Superior Court for the County No. BC455808 of Los Angeles. Joanne B. O’Donnell, Judge. Reversed and remanded.
Magaña, Cathcart & McCarthy and Clay Robbins III for Plaintiffs and Appellants.
Balisok & Associates and Russell S. Balisok for California Advocates for Nursing Home Reform, Inc., as Amicus Curiae on behalf of Plaintiffs and Appellants.
Cole Pedroza, Curtis A. Cole, Kenneth R. Pedroza, Cassidy C. Davenport; Carroll, Kelly, Trotter, Franzen & McKenna, Richard D. Carroll, David P. Pruett and Jennifer A. Cooney for Defendants and Respondents.
Tucker Ellis, E. Todd Chayet and Rebecca A. Lefler for California Medical Association, California Dental Association, and California Hospital Association, as Amici Curiae on behalf of Defendants and Respondents.
After the death of their 83-year-old mother, plaintiffs sued defendant physicians for elder abuse, based on defendants’ repeated decisions not to refer their mother to a vascular specialist over a two-year period during which her diminishing vascular flow worsened without treatment. Plaintiffs’ mother began receiving medical care from defendants in 2000, and by 2004, defendants knew she suffered from impaired lower vascular flow. In 2007, when she was under the sole medical care of the defendants, one of the defendant doctors diagnosed her with peripheral vascular disease. Defendants failed to refer plaintiffs’ mother for specialized vascular care despite defendants’ knowledge of her impaired lower vascular flow, their own diagnosis of peripheral vascular disease, the progressive deterioration over the two-year period of the vascular flow in her right leg, and their own notes of findings well known to be consistent with tissue damage due to vascular insufficiency. The day defendants last saw plaintiffs’ mother, and noted abnormal weight loss, they again made no referral for a vascular consult. The next day, she was admitted to a hospital with a two-week history of gangrene.
Her “right foot was black due to tissue death caused by the long term impaired vascular flow Defendants had charted, and ignored, for years.” Emergency vascular surgery was performed, without success, because of defendants’ decisions that withheld needed medical care. A month later, plaintiffs’ mother was re-admitted for a below-the-knee amputation of her right leg. Two months later, she underwent an above-the-knee amputation of her right leg. Seven months later, she was hospitalized with blood poisoning, and 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.” They 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.
Defendants are mistaken on both points. The elder abuse statute does not limit liability to health care providers with custodial obligations, and the question whether defendants’ conduct was reckless rather than merely negligent is for a jury to decide. We therefore reverse the trial court’s judgment dismissing plaintiffs’ complaint.
The plaintiffs are Kathleen A. Winn and Karen Bredahl, the daughters and surviving heirs of Elizabeth M. Cox. The defendants are Pioneer Medical Group, Inc., Emerico Csepanyi, James Chinuk Lee and Stanley Lowe. Doctors Csepanyi, Lee and Lowe are licensed physicians or podiatrists, who maintained offices at Pioneer Medical Group in Cerritos and Long Beach. Plaintiffs’ first amended complaint alleges the following facts.
Mrs. Cox began receiving medical care from Dr. Csepanyi at Pioneer’s facilities as early as November 2000. In 2004, she was evaluated by Dr. Lowe, a podiatrist, who treated her for “ ‘painful onychomycosis, ’ ” a condition “well known to limit mobility and indirectly impair peripheral circulation.” Dr. Lowe recorded that pulses in the upper surface of Mrs. Cox’s foot “were not palpable reflecting [Mrs. Cox] had severely impaired vascular flow in her lower legs.” Dr. Lowe’s 2004 report showed that a copy of the report was sent to Dr. Csepanyi. Thus, both Dr. Lowe and Dr. Csepanyi knew that Mrs. Cox suffered from impaired lower vascular flow, and “also knew that if prompt referral to a vascular specialist was not made at that time there was a high degree of probability that [Mrs. Cox] would sustain serious injury because of her age and medical history.”
Beginning in February 2007 and until March 2009, while Mrs. Cox was under their sole medical care, defendants “repeatedly made the conscious decision not to provide needed medical care to [Mrs. Cox] under circumstances where Defendants... knew that [Mrs. Cox] would be harmed by Defendants’ failure to provide the medical care, ” and “were therefore reckless in their care of [Mrs. Cox].”
In January and February 2007, Mrs. Cox’s “vascular issues regarding her lower extremities grew worse.” Defendants’ records show Mrs. Cox “complained of ankle edema, that her feet were discolored and evidenced ‘decreased circulation.’ ” Dr. Csepanyi diagnosed her with peripheral vascular disease on February 13, 2007. “Although he knew [Mrs. Cox] had suffered from decreased vascular flow since 2004[, ] that said condition was becoming worse without treatment over time, and that [Mrs. Cox] was at risk of severe injury as a result, he did not refer her for a vascular consult.”
From February 2007 until April 2009, “Mrs. Cox’s right leg vascular condition progressively deteriorated[, ] as repeatedly noted by Defendants in [her] medical chart.”
In December 2007, Dr. Lowe evaluated Mrs. Cox and “noted that the pulses in her lower legs and feet were further reduced, and recommended a follow-up in two months. Notwithstanding the deterioration of the vascular flow in the legs of [Mrs. Cox], Defendants decided not to make a referral to a vascular specialist.”
In February 2008, Dr. Lowe noted Mrs. Cox’s “vascular examination was ‘unremarkable, ’ while also noting that she ‘had an abscess of the lateral aspect of the right hallux nail plate and cellulitic [acute spreading bacterial infection below the surface of the skin] changes of the left hallux nail plate.’ These findings are well known in the health care profession to be consistent with tissue damage due to vascular insufficiency. He merely drained the infection, prescribed medication, and suggested another follow-up in two months. He decided not to refer [Mrs. Cox] to a vascular specialist.”
In July 2008, Dr. Csepanyi examined Mrs. Cox and confirmed she continued to suffer from peripheral vascular disease. Dr. Csepanyi saw Mrs. Cox again one month later but did not perform a vascular examination.
In December 2008, Dr. Lee evaluated Mrs. Cox, who had suffered a laceration on her right foot and right second toe. He cleaned the wound and recommended antibiotics. Mrs. Cox returned to Dr. Lee for follow-up in January 2009, as Dr. Lee had instructed. Mrs. Cox was “still complaining of pain and that her right big toe was not healing.” Later in January 2009, Mrs. Cox returned again to see Dr. Csepanyi, complaining the wound had not healed and was painful. Dr. Csepanyi recommended medication and foot soaks. On February 9, 2009, he diagnosed cellulitis of the toes, cyanosis (skin turning blue/purple), and a toe abscess. The symptoms defendants noted in January and February 2009 “are evidence of cellular deterioration and tissue destruction due to peripheral vascular ischemia and, given the past medical history of [Mrs. Cox], the only appropriate care at that time (after cleaning the wound) would have been a referral to a vascular specialist, as [Mrs. Cox] was then at clear risk of serious injury due to progressive peripheral vascular insufficiency.”
Mrs. Cox saw Dr. Lowe on February 10, 2009, and three other times in February and March 2009. On February 10, he “recognized that Ms. Cox suffered from chronic non decubitus (due to vascular compromise) ulcer of the toes, more clearly evidencing tissue destruction caused by vascular insufficiency.” He recommended topical cream and a special shoe, but made no referral to a specialist. In the three subsequent visits, Dr. Lowe “continued to document her active problems of pain and non-healing foot wounds. During two of these visits, Dr. Lowe reported that he could not feel a pulse in her feet. These persistent symptoms are clear evidence of tissue deterioration due to peripheral vascular ischemia.” Given Mrs. Cox’s medical history, “Defendants’ decision not to provide needed medical care clearly exposed [Mrs. Cox] to the immediate risk of serious injury due to her long standing and known condition of peripheral vascular insufficiency, ” depriving her of needed medical care under circumstances that he knew would expose [her] to harm.
On March 18, 2009, Mrs. Cox saw Dr. Csepanyi, who again acknowledged Mrs. Cox suffered from “ ‘chronic non decubitus ulcer of toes, ’ ” a condition “well known in the medical field to be caused by the ‘peripheral vascular disease’ as he had previously noted (and continued to chart).” Though Dr. Csepanyi also saw Mrs. Cox had suffered from an abnormal weight loss, no follow-up plan was noted and no referral was made. “By these decisions Defendants again consciously deprived [Mrs. Cox] of needed medical care under circumstances where they knew [she] was certain to be harmed by the failure of Defendants to provide that care.”
The next day, Mrs. Cox was admitted to a hospital “with symptoms consistent with a history of right lower extremity ischemia (inadequate blood supply to a local area due to blockage of the blood vessels) and a two-week history of right first toe gangrene. Her right foot was black due to tissue death caused by the long term impaired vascular flow Defendants had charted, and ignored, for years. She had lost 30 pounds from December 2008[.]... [Her] foot was black because she had been suffering from sepsis (blood poisoning) due to the gangrene in her right foot.” A vascular surgery consultation occurred on an emergency basis; a revascularization procedure “was unsuccessful because of Defendants’ decisions that withheld needed medical care.” In April, Mrs. Cox’s right leg was amputated below the knee, and in June, Mrs. Cox had an above-the-knee amputation. In January 2010 she was hospitalized with blood poisoning and died a few days later.
Plaintiffs filed a complaint for elder abuse on February 23, 2011. Defendants’ demurrer was sustained and plaintiffs filed a first amended complaint. Plaintiffs alleged the conduct related above, and alleged defendants’ “conscious failure to make... a vascular referral at any time” during the period between December 8, 2008 and March 3, 2009, constituted abuse or neglect as defined by the Elder Abuse and Dependent Adult Civil Protection Act (hereafter Elder Abuse Act or Act). “Defendants... repeatedly, for at least two years, failed to provide such needed medical care to [Mrs. Cox] under circumstances where Defendants... knew the health and well-being of [Mrs. Cox] depended on such care.” This failure “reflects a deliberate disregard for the high degree of probability that significant injury and certain suffering would befall [Mrs. Cox] as a result of Defendants’ decisions” and “constitute[s] recklessness within the meaning of” the elder abuse statute. Plaintiffs sought damages, costs, attorney fees, and punitive damages.
Defendants again demurred, and sought and obtained judicial notice of a complaint plaintiffs had filed for ...