In the evolving law with respect to elder abuse, two California cases published this year are very supportive of plaintiffs: Conservatorship of Gregory (2000) 80 CA4 514 and Mack v. Soung (2000) 80 CA4 966.

The first opinion, Conservatorship of Gregory, deals with the question of jury instructions in an elder abuse case. The jury instructions in the underlying action included references from the California Code of Regulations and the Code of Federal Regulations. The question before the court was whether “duly authorized regulations can be used to describe the care required under an existing statutory right of action for elder abuse.” Id. at page 522. It was specifically held that jury instructions can be drawn from state and federal regulations, as well as administrative regulations. Specifically, the Court noted several sources for jury instructions.

Sources of law for jury instructions include statutes, court opinions, treatises, hornbooks, legal encyclopedias, digests, and form books. [Citations omitted.] We find no authority to suggest a party may not base instructions on relevant state or federal regulations in the proper case. Like statutes, applicable regulations are a “factor to be considered by the jury in determining the reasonableness of the conduct in question.” [citations omitted.] Id. at page 523.

Interestingly, this Appellate Court also sent the matter back to Superior Court to review the original order denying compensation for paralegal fees as part of the attorney’s fees awarded. Id. at page 518.

In Mack v. Soung, supra, the Court concluded that an action can be stated against a physician for elder abuse based upon allegations of neglect which include failure to provide medical care for physical and mental health needs. The Court disagreed with the defendant’s argument that at most the allegations established a claim for professional negligence, but not “neglect” within the meaning of the Elder Abuse Act.

We have no trouble concluding that a doctor who conceals the existence of a serious bedsore on a nursing home patient under his care, opposes her hospitalization where circumstances indicate it is medically necessary, and then abandons the patient in her dying hour of need commits “neglect” within the meaning of the [Elder Abuse] Act. Further, if it can be proved by clear and convincing evidence that such acts were committed with “recklessness, oppression, fraud, or malice,” the heightened remedies of section 15657 will apply. Id. at page 973.

The Mack case should be considered in deciding whether to include a cause of action for elder abuse against a physician. Previously, physicians have enjoyed the protection of MICRA limitations on damages for a wide range of professional negligence. For the first time the courts have addressed neglect and abandonment by a physician in the context of elder law and the enhanced remedies available to the elderly and their families.

Both these cases illustrate a strengthening of elder rights. Case law, statutes and regulations should be tracked closely as I suspect these rights to be further defined and enforced.

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