Blue Cross conducts follow up coding studies

May 19, 2016
Area(s) of Interest: MICRA Payor Issues and Reimbursement 

On Thursday, the California Supreme Court issued a unanimous opinion in the case Winn v. Pioneer Medical Group, ending the trial lawyers' bid to circumvent the Medical Injury Compensation Reform Act (MICRA) by claiming elder abuse.

The California Medical Association (CMA), together with the American Medical Association (AMA) Litigation Center, filed an amicus brief in this case after an appellate court failed to draw a line between medical professional negligence and elder abuse claims. If the appellate court’s decision had been left standing, it would have eroded long-standing protections of MICRA and the clear definition of professional negligence.

This case involved the issue of whether, in an outpatient setting, a health care provider's failure to refer an elderly patient to a specialist constituted "neglect" under the Elder Abuse and Dependent Adult Civil Protection Act.

The case arose after an 83-year-old-woman received care at Pioneer Medical Group in Cerritos in 2000. Several health professionals treated her for onychomycosis, which limits mobility and indirectly impairs peripheral circulation. Years later, she was diagnosed with peripheral vascular disease by a Pioneer family physician. The patient’s condition deteriorated and she visited Pioneer Medical Group at least seven more times during the next two years complaining of various ailments associated with peripheral vascular disease. She was admitted to a hospital with gangrene in 2009 and her right leg was amputated. She died from blood poisoning in 2010.

In 2011, the patient’s daughters filed suit against Pioneer Medical Group and several staff members alleging professional negligence and elder abuse. The plaintiffs said the medical group’s failure to refer the patient to a vascular specialist constituted neglect and abuse under the Elder Abuse Act.

Pioneer contended it was not liable for elder abuse because its physicians treated the woman as an outpatient; liability for elder abuse by definition requires assumption of custodial obligations. The medical group argued the alleged conduct could only constitute professional negligence, not elder abuse.

CMA's brief, filed together with the AMA’s, set forth how this lawsuit was a veiled attempt to reclassify acts of professional negligence in order to circumvent MICRA and invoke the heightened remedies available under the Elder Abuse Act. The restrictive effect that such reclassification would have had on access to care for the elderly, and the expansive effect it would have on malpractice insurance costs for health care providers, is significant. CMA's brief asked the Supreme Court to reject such reclassification and to state with certainty that claims based on a health care provider's decision as to an appropriate course of treatment cannot, through artful pleadings, be recast as claims for elder abuse, as doing so threatens to undermine the carefully crafted provisions of MICRA.

CMA told the court that allowing plaintiffs to seek enhanced remedies for elder abuse based on such conduct would conflict with the provisions of MICRA, which limit plaintiffs' remedies in an action based on that same conduct. Since the law cannot both enhance and limit remedies based on the same conduct, for the Elder Abuse Act and MICRA to coexist, allegations of elder abuse and professional negligence must be mutually exclusive. Therefore, the use of the Elder Abuse Act to extract additional damages or higher settlements in cases involving professional negligence is a misuse of the Act that should not be allowed.

In a ruling that is largely aligned with the position advocated by CMA and AMA, the state's high court concluded that the Elder Abuse Act does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship with the elderly patient that involved ongoing responsibility for one or more of the patient's basic needs.

The Supreme Court stated that it is the nature of the elder or dependent adult’s relationship with the defendant, not the defendant’s professional standing, that makes the defendant potentially liable for neglect under the Elder Abuse Act. Because the defendants did not have a caretaking or custodial relationship with the decedent, the Supreme Court found that plaintiffs could not adequately allege neglect under the Elder Abuse Act.

Significantly, this opinion blunts the trial lawyers’ attempts to make an end-run around MICRA and turn every professional negligence action involving an elderly patient into an elder abuse claim.

Click here to read the brief.

Contact: CMA's legal information line, (800) 786-4262 or legalinfo@cmadocs.org.


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