(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)
C. There Is No Requirement That Plaintiffs Show That Dr. XY Was The Custodian of Claire Fine.
In his moving papers, Dr. XY maintains that he cannot be held liable under a theory of abuse of a dependent adult because he was not Decedent’s custodian. This argument is wholly without merit. In Mack v. Soung (2000) 80 Cal. App. 4th 966, the children of an elderly woman sued her physician under the Elder Abuse statute. Dr. Soung maintained that he could not be liable under EADACPA because he was not the decedent’s custodian. In overruling his argument the court specifically found:
Dr. Soung additionally claims he cannot be liable under the Elder Abuse Act because he was not Girtha’s custodian or caretaker…He is wrong… neglect is not restricted to care custodians. Instead it applies generally to anyone having care or custody of the elder, and specifically mentions the [f]ailure to provide medical care for the physical and mental health needs.
The Mack court further pointed out that Dr. Soung’s argument was vitiated by the California Supreme Court’s decision in Delaney v. Baker (1999) 20 Cal. 4th 23. In that decision, the court held that health care professionals are not exempt from the heightened remedies triggered by § 15657 when they are guilty of reckless neglect. Here, Dr. XY had responsibility as the attending physician of Decedent to ensure that she was fed, hydrated, medicated, free of abuse, and that her medical needs were attended to.
Instead, Dr. XY neglected Claire Fine and allowed her condition to deteriorate to the point of near death. Additionally, this court has ruled that Dr. XY’s conduct rises to the level of wilful misconduct. In fact, the very conduct Dr. XY maintains would rise to the level of abuse in his moving papers are alleged in Plaintiffs’ complaint. (See Part 5 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.