Elder Abuse: Liability for Failure to Refer Depends on Existence of a Caregiving Relationship

August 31, 2016 | Strategic Insights for Health System


​A healthcare provider who delivers care on an outpatient basis cannot be held liable for failure to refer to a specialist under the California Elder Abuse and Dependent Adult Civil Protection Act (CA Welf. & Inst. Code, § 15600 et seq., the "Elder Abuse Act") in the absence of a substantial caretaking or custodial relationship, ruled the Supreme Court of California. The case involved a patient who died after an outpatient physician practice allegedly failed to make appropriate specialist referrals over a period of years.

According to court records, the patient experienced progressive problems indicative of circulatory compromise beginning in 2004 while under the care of the defendant medical group. She was initially diagnosed with peripheral vascular disease by the defendant primary care physician in early 2007. For the next two years, the patient was seen several times per year by the primary care physician and the defendant podiatrist for treatment of ailments affecting her lower extremities, including abscesses, cellulitis, nonhealing wounds, and cyanosis. She was never referred to a specialist for evaluation or treatment of peripheral vascular disease. In March of 2009, the patient was hospitalized with sepsis one day after seeing the defendant primary care physician. Her foot was ischemic and gangrenous; surgical attempts at revascularization were unsuccessful. The patient required a below-knee amputation in April 2009 and an...

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