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.