Elder Abuse and Negligence by a Health Care Provider in California

The California Supreme Court has twice considered the differences between claims for elder abuse by a health care provider, and claims for professional negligence by a health care provider. In Delaney v. Baker (1999) 20 Cal.4th 23 and Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, the court distinguished neglect that qualifies for heightened remedies under section 15657, from the professional negligence referenced in section 15657.2, and from professional negligence as referenced in Code of Civil Procedure section 425.13, subdivision (a). According to our high court, the conduct rendering a health care provider liable under section 15657 for neglect is of a wholly different nature from conduct constituting professional negligence. Section 15657 neglect is "neglect performed with some state of culpability greater than mere negligence" (Delaney, supra, 20 Cal.4th at p. 32); it is "'acts of egregious abuse' against elder and dependent adults" (id. at p. 35); and it is abuse that "is at most incidentally related to the provider's professional health care services." (Covenant Care, supra, 32 Cal.4th at p. 786.) Of critical importance here is the Delaney court's conclusion that "those who enacted the statute thought that the term 'professional negligence,' at least within the meaning of section 15657.2, was mutually exclusive of the abuse and neglect specified in section 15657." (Delaney, supra, 20 Cal.4th at p. 30.) The court rejected the theory that a cause of action could be based on professional negligence within the meaning of section 15657.2 and also constitute reckless neglect within the meaning of section 15657. (20 Cal.4th at p. 29.) The Delaney court thus explained: "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"' , 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 'failure to provide medical care for physical and mental health needs.' (Former 15610.57, subd. (b).)" (Delaney, supra, 20 Cal.4th at p. 34.) Subsequently, in Covenant Care, the court relied on the Delaney analysis and added: "Thus, the statutory definition of 'neglect' speaks not of the undertaking of medical services, but of the failure to provide medical care. " (Covenant Care, supra, 32 Cal.4th at p. 783.) The court additionally explained that claims under the Act are not brought against health care providers in their capacity as providers. Instead, elder abuse claims are properly brought against custodians and caregivers that abuse elders "and that may or may not, incidentally, also be health care providers." (32 Cal.4th at p. 786.) In the Covenant Care analysis, elder abuse is "at most incidentally related" to a health care provider's professional health care services. (Ibid.)