Lack of Informed Consent May Support an Elder Abuse Claim

In Stewart v. Superior Court, No. E067316, the Court of Appeal, Fourth Appellate District, Division Two, recently held that a hospital’s failure to obtain informed consent from the patient or the patient’s guardian prior to implanting a pacemaker supported an Elder Abuse claim. Patient, a 78-year old experiencing confusion, named Plaintiff, a licensed registered nurse, his durable power of attorney for healthcare decisions.

After the patient’s death, Plaintiff filed a wrongful death action alleging Elder Abuse, Fraud by Concealment, Medical battery and Medical Negligence. Plaintiff alleged that the pacemaker procedure was unnecessary; she had requested a second opinion prior to the procedure and indicated that she would not consent to the procedure; and the ethics committee of Defendant hospital voided her designation as power of attorney and determined they could continue with the procedure without consent.

The trial court granted the hospital’s Motion for Summary Adjudication on grounds that: (1) interpreting the power of attorney and then allowing a procedure to occur was not withholding care or not within the custodial capacity required in an the Elder Abuse claim; (2) the Fraudulent Concealment claim failed because the hospital did not owe a fiduciary duty to the patient; and (3) the Medical Battery claim failed because the surgeon was not a hospital employee.

However, the Court of Appeal found that the allegations could support a cause of action for Elder Abuse because there was a triable issue of material fact regarding whether the hospital appropriately respected the patient’s personal autonomy and that a jury could find that the hospital was unreasonable in discharging its custodial obligations to the patient. The Court also found that depriving a patient of the right to consent to surgery could constitute a failure to provide medical care for physical and mental health needs described under the Welfare & Institutions Code §15610.57. The Court further held that a reasonable jury could find that the hospital failed to protect the patient from health and safety hazards by authorizing the procedure in the way that it did. In fact, the Court noted that Plaintiff’s expert, the head of a hospital ethics committee with over a decade of experience, opined that the hospital was required to seek a Court Order before voiding Plaintiff’s power of attorney or, at a minimum, to have representation for Plaintiff and/or the patient present at the meeting.

Accordingly, the Court issued a writ of mandate and directed the trial court to vacate its Order granting summary adjudication of Plaintiff’s causes of action for Elder Abuse, Fraudulent Concealment, and Medical Battery, and to substitute an Order denying the motion as to those causes of action.

The Stewart holding emphasizes the importance of obtaining informed consent from a patient and/or guardian with medical power of attorney. If a patient’s guardian’s actions are determined to be contrary to the patient’s best interests, a hospital ethics committee should seek a Court Order for a determination as to the interpretation of the power of attorney prior to the performance of a procedure without informed consent.

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November 7, 2017