(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/medical malpractice case and its proceedings.)
In Delaney the court went on to explain the difference between what could constitute professional negligence, as opposed to the type of neglect required to establish elder abuse, as follows:
This difference in focus can be clarified by considering the differing types of conduct with which section 15657 and MICRA are concerned. As discussed, section 15657 concerns “neglect,” “physical abuse,” and “fiduciary abuse.” Former section 15610.57 defines neglect as the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care which a reasonable person in a like position would exercise. Neglect includes, but is not limited to, all of the following: (a) Failure to assist in personal hygiene, or in the provision of food, clothing or shelter. (b) Failure to provide medical care for physical and mental health needs. (c) Failure to protect from health and safety hazards. (d) Failure to prevent malnutrition. Thus, neglect within the meaning of former section 15610.57 appears to cover an area of misconduct distinct from “professional negligence.”
In section 15657.2: “Neglect,” as defined in former section 15610.57 and used in section 15657, does not refer to the performance of medical services in a manner inferior to “the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing” (Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Cal. 4th at p. 998), but rather to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations. It is instructive that the statutory definition quoted above gives as an example of neglect not negligence in the undertaking of medical services but the more fundamental [f]ailure to provide medical care for physical and mental health needs. (20 Cal.4th, at p. 34.)
Thus, for negligent care to equate with “neglect” there must be a showing of an absence of care, i.e. a failure to provide care. Negligently provided care, by itself, cannot equate with elder abuse. For each type of neglect there has to be a failure to provide care, hygiene, shelter, etc. As previously noted, in Delaney v. Baker, supra, the Supreme Court held that neglect in this context equates with a complete absence of care, rather than providing care in a negligent manner. Thus, in the context of hospital care plaintiff’s burden is to show an absence of care, which caused plaintiff harm, both by clear and convincing evidence; if the defendants provided care, but did so in a negligent manner, this does not rise to the level of neglect. Further, the neglect has to be a result of recklessness, or a conscious disregard of the health and safety of plaintiff. (See Part 9 of 11.)
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