April 28th, 2014

Winn v. Pioneer Medical Group

As the field of Elder Abuse litigation has grown, the medical industry has employed expert appellate counsel who, principally through the use of amicus briefs in appellate proceedings, have steered the development of the law of elder abuse into the narrow straits where it appears that actual custody of the elder is a prerequisite to liability under the Act.  This effort paid off in Delaney v. Baker (1999) 20 Cal. 4th 23 where the Court held that the Act applied even to licensed health care providers, but the Court appeared to find that the Act’s intent was to address only custodial abuse.

That limitation on the scope of the Act is the issue now pending before the Supreme Court in Winn v. Pioneer Medical Group and Winn appears to be fully briefed.  The decision in Winn will determine whether the Act will apply to those non-custodial defendants such as doctors, home health agencies, hospice services, etc., and to managed care entities such as medical groups and HMOs which – although having no actual custodial relationship with the elder – may engage in practices which effectively deny reasonably necessary medical care to elders.

5 thoughts on “Winn v. Pioneer Medical Group

  1. Paul Burke

    Glad to see you starting this blog. Hospitals and non-HMO doctors are getting the same incentives to cut corners that HMOs and Nursing homes have always had, so they need pressure to treat, coming from attorneys and the public.

    Hospitals face penalties of $30,000 to $265,000 for each readmission above the national average rate in 5 categories (COPD, pneumonia, heart attack, heart failure, hip & knee replacements).

    Hospitals and doctors can sign up for rewards from Medicare if they cut costs: the doctor or hospital keeps up to half Medicare’s savings and is exempted from some anti-trust and other rules.

    So non-HMO hospitals and doctors now have some of the same cost constraints that HMOs have, to reduce treatment for expensive and risky patients, “You are not a good candidate for treatment… Normal process of aging… Time for palliative care…”

    Patients need information about doctors’ incentives; doctors almost never disclose them. Medicare even prohibits doctors who have signed up for rewards from giving any information to the public except what Medicare approves.

    I’m interested in learning more about custodial care. Does this blog post imply that nursing homes and hospitals have “custody of the elder”?

  2. Paul Burke

    I hope you win cases against health providers for failure to disclose their conflicts of interest.

    Wins will have multiplier effects causing most providers to disclose their conflicts.

    Even hidden in fine print, enough people would learn about the conflicts of interest, so pressure can build for improvement.

    All it took was Randi W. to change how employers word references. The same can happen with the financial conflicts of health providers.

  3. Russ Balisok

    Paul: Thanks for your participation and interest.

    In response to your post of May 10 and the question whether nursing homes and hospitals have “custody” the answer would be yes. The more nuanced question is whether a non-custodial defendant can have custodial duties. For example, a nursing home’s custodial responsibilities include the duty to provide a number of services, including for example, physical therapy. Such services are included in Title 22 Cal. Code Regs, §§72301, et seq., as “required services.” The question arises whether a provider of those services who acts pursuant to a contract with the nursing home operator to provide physical therapy services, is providing custodial services. The easier argument to make leads to a “yes,” the contract physical therapy service is providing custodial services and is therefore liable under Welf. & Inst. Code §15657 for elder abuse.

    All of this could be mooted by a decision in the Supreme Court in Winn v. Pioneer Medical Group, holding that “custody” is not a requirement for liability under the Elder Abuse Act.



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