Legal News

RECENT DECISION HOLDING SUBSTANTIAL IMPAIRMENT OF AN ELDER’S AUTONOMY IN MAKING MEDICAL DECISIONS MAY CONSTITUTE CAUSE OF ACTION FOR NEGLECT UNDER THE ELDER ABUSE ACT.

STEWART V. SUPERIOR COURT (2017) 17 C.D.O.S. 10024

In Stewart v. Superior Court (St. Joseph’s Health) (October 12, 2017) 17 C.D.O.S. 10024, Division 2 of the Fourth Appellate District Court of Appeal granted a writ of mandate. Petitioner sought the writ after the trial court granted real parties’1 motion for summary adjudication of petitioner’s elder abuse causes of action. In a decision certified for partial publication, the appellate court ruled that impairment of a patient’s right to make his own medical decisions (right of personal autonomy) could constitute neglect under the Elder Abuse Act: “We…find it important to emphasize that elders have the right to autonomy in the medical decision-making process. We therefore publish the portion of this opinion that discusses the cause of action for elder abuse to explain how, in our view, a substantial impairment of this right can constitute actionable “neglect” of an elder within the meaning of both the little-invoked catchall definition contained in Welfare and Institutions Code section 15610.57, subdivision (a)(1), and two of the types of neglect that are set forth in Welfare and Institutions Code section 15610.57, subdivision (a)(2).” The appellate court vacated the order of the trial court and directed it to substitute an order denying the motion.

Patient Anthony Carter was 78 years old and suffering from confusion when admitted to St. Mary. Carter designated petitioner Stewart, a registered nurse, as his durable power of attorney for health care decisions. (There was evidence Stewart had considerable experience assisting Carter with medical care; Stewart testified Carter gave her the authority to make medical decisions on his behalf in 1998 or 1999.) The evidence before the court showed that St. Mary’s co-defendant physicians recommended a variety of medical treatments—including insertion of a gastronomy tube, surgical implantation of a pacemaker and admission to hospice—for patient Carter. Carter objected to these procedures and Stewart objected to them in her capacity as his power of attorney. In addition, she suggested less invasive alternatives such as calorie counting and obtaining a second surgical opinion.

Just over two weeks after Carter’s admission, St. Mary and other defendants notified Stewart that Carter was scheduled to have a pacemaker; Stewart continued to object and again requested a second opinion. Rather than obtain a second surgical opinion, St. Mary and other co-defendants “determined through St. Mary risk management department that they could continue with the pacemaker procedure despite petitioner’s objection.” The court pointed out “Stewart had at no time consented to this procedure and had instead expressly objected to it.”

Yet, the next day, 21 days after Carter’s admission, Stewart contacted the hospital in the morning and was told Carter had not been given breakfast because he was scheduled for surgery. Stewart again expressed her objection to the surgical procedure. When Stewart arrived later that day, she discovered surgery had been performed at 8:30 in the morning over her objection. Stewart then met with several of St. Mary representatives who told her they had “proceeded without her consent because she was not acting in Carter’s best interests.” Carter went into cardiac arrest later that day. The court said, based “[o]n information and belief, this occurred because Carter did not need the pacemaker” which was surgically removed two days later. However, Carter had by then experienced brain damage and “required acute skilled nursing care until his death on April 15, 2013.”

Stewart filed suit as the personal representative of Carter’s estate and named St. Mary and others as defendants. St. Mary filed a motion for summary adjudication of the elder abuse, fraudulent concealment and medical battery claims: “As relevant to this petition, [St. Mary] argued the elder abuse claim failed because holding an ethics committee meeting about Stewart’s power of attorney over Carter could not amount to reckless neglect within the meaning of the Act. The fraudulent concealment claim, St. Mary contended, failed because a hospital owes no fiduciary duty to a patient, and the medical battery claim was allegedly insufficient because the hospital itself did not perform the surgery and the doctors who per-formed the surgery were not hospital employees.”

The court went into detail about the evidence submitted by petitioner and real parties at the trial court level, and discussed the trial court’s findings and the grant of the summary adjudication motion. (There was evidence that suggested some defendants actively sought to undermine and delegitimize Stewart’s power of attorney authority by, among other things, characterizing her representation of Carter’s interests as a refusal to help him, denying her request for a second surgical opinion about the pacemaker and taking steps to cover their “posterior.”) The appellate court observed a writ of mandate is the appropriate method of seeking review and that the “trial court’s stated reasons for granting summary adjudication are not binding on the reviewing court, which reviews the trial court’s ruling, not its rationale.”

In the writ petition, Stewart argued the “trial court erred in summarily adjudicating her cause of action for elder abuse” because there were triable issues of fact whether the defendants’ decision to implant the pacemaker without her consent constituted a “denial of care and abuse of custodial power.” St. Mary asserted “its act of conducting an ethics committee meeting about the power of attorney was not an act implicating custodial duties toward Carter.” The appellate court disagreed and held “[b]cause…a reasonable jury could find that St. Mary recklessly and/or fraudulently failed to meet its custodial obligations toward Carter, Stewart’s position has more merit.”2

Citing the Winn v. Pioneer Medical decision, the court observed that because Carter was a physically compromised adult inpatient at St. Mary’s he likely would have been considered a “dependent adult” under the Elder Abuse and Dependent Adult Civil Protection Act even if he did not meet the criteria for also being an “elder.” The record showed “that Carter at times needed medical assistance, including a g-tube, to consume adequate calories….St. Mary readily admits Dr. Denton told it that Carter’s health was poor enough that he required a pacemaker on an emergency basis. For these reasons, we conclude St. Mary had “care or custody of” Carter and therefore was obligated “‘to exercise that degree of care that a reasonable person in a like position would exercise.’ [Citation.]” (Winn v. Pioneer Medical).

The appellate court was not persuaded by St. Mary’s argument that it had no care and custody over its patient because the hospital’s role should be limited to the “specific circumstances surrounding the ethics committee meeting instead of as to the relationship between Carter and St. Mary as a whole. The ethics committee meeting, in St. Mary’s view, was not about the provision of medical care but instead involved only the interpretation of Stewart’s power of attorney.” St. Mary contended interpretation of the power of attorney did not involve the “provision of medical care but instead involved only the interpretation of Stewart’s power of attorney. The hospital argued that such a nonmedical “administrative act” could not be deemed custodial for the purposes of the Elder Abuse Act. Rather, St. Mary claimed, when the hospital interpreted the validity of the power of attorney, it was “no longer acting as a care custodian [], but rather as [a] healthcare provider[] focused on the undertaking of medical services.” The court disagreed:

In the Winn court’s words, the type of relationship the Act contemplates is “a robust caretaking or custodial relationship—that is, a relationship where a certain party has assumed a significant measure of responsibility for attending to one or more of an elder’s basic needs that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.”


In the view of the court, Winn, supports the conclusion that St. Mary “accepted Carter as a patient with knowledge of his ‘confus[ed] state’, which left him a ‘poor historian.’” The patient required assistance with his feeding. Perhaps most importantly, “the ethics committee authorized the performance of surgery on Carter’s behalf on the assumption that he lacked the ability to consent. In our view, St. Mary had accepted responsibility for assisting Carter with acts for which ‘[o]ne would not normally expect an able-bodied and fully competent adult to depend on another.’” (Quoting Winn.)

The court went on to explain that the “majority of St. Mary’s interactions with decedent were custodial.” Just because the decision by the hospital to allow the physicians to sign off on the patient’s consent form (for a procedure to which his own power of attorney had objected) was made in a conference room rather than an exam room was of no practical import. “St. Mary has cited no authority allowing or even encouraging a court to assess care and custody status on a task-by-task basis, and the Winn court’s focus on the extent of dependence by a patient on a health-care provider rather than on the nature of the particular activities that comprised the patient-provider relationship counsels against adopting such an approach.”

St. Mary argued that “neglect” under the Act was not the mere “undertaking of medical services, but of the failure to provide medical care” (Ital in orig.) and that the ethics committee meeting was the undertaking of services and therefore more akin to ordinary medical negligence, not elder abuse. The court disagreed:

First, we are troubled that labeling this case one for no more than professional negligence seriously undervalues the interest Carter had in consenting or objecting to the surgery that, in the opinion of Stewart’s experts, contributed to his death. “More than a century ago, the United States Supreme Court declared, ‘No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. . . . “The right to one’s person may be said to be a right of complete immunity: to be let alone.” [Citation.]’ [Citation.] Speaking for the New York Court of Appeals, Justice Benjamin Cardozo echoed this precept of personal autonomy in observing, ‘Every human being of adult years and sound mind has a right to determine what shall be done with his own body. . . .’ [Citation.] And over two decades ago, Justice Mosk reiterated the same principle for this court: ‘[A] person of adult years and in sound mind has the right, in the exercise of control over his body, to determine whether or not to submit to lawful medical treatment.’ ” (Thor v. Superior Court (1993) 5 Cal.4th 725, 731 (Thor).)

This right, the right to personal autonomy, is the right St. Mary denied Carter by authorizing Dr. Ashtiani and Dr. Denton to sign the consent for the pacemaker on Carter’s behalf. This form was signed not only without Carter’s consent, but over the objection of his designee.


The court noted that a patient’s (or his or her representative’s) reasons for refusing treatment are “irrelevant.” Here, the facts were undisputed that

St. Mary authorized a surgery without the consent of either Carter or Stewart. It is also undisputed that St. Mary gave no notice of the ethics committee meeting to Carter or Stewart, and that it gave Stewart no notice that the surgery was going to occur. Even if the reasonableness of Stewart’s objection were something St. Mary could have taken into account when deciding to void Stewart as Carter’s designee, there are triable issues of material fact on this issue. Stewart was not an uneducated patient objecting to a procedure without explanation; instead, at the time of Carter’s pacemaker surgery, she was a registered nurse, with knowledge of Carter’s history, whom he had chosen repeatedly as the designee of his power of attorney, and who requested a second opinion and suggested a specific possible alternative causes for gaps in Carter’s heartbeat…. We have difficulty concluding that the deprivation of a right as important as personal autonomy, if in fact St. Mary is found to have deprived Carter of that right, cannot amount to more than professional negligence in the context of this case.


St. Mary alternatively argued petitioner’s case was one of failure to give informed consent under Cobbs v. Grant. The court was similarly unpersuaded by this tack. While not publishing the portion of the decision dealing with medical battery, in the published portion of its decision the court said the standard of proof required for medical battery was “undeniably met” in this case. “Stewart has alleged and proved something more than a potential medical malpractice claim.” The evidence showed there exists “triable issues of material fact regarding whether St. Mary appropriately respected Carter’s right to personal autonomy.” The court went on to describe all the ways a jury might find St. Mary liable for elder abuse in addition to the deprivation of medical autonomy, including failure to provide medical care for physical and mental health needs and failure to protect Carter from health and safety hazards by authorizing the surgery in the way that it did. Steps that St. Mary should have taken, but did not, included obtaining a court order to override Stewart’s power of attorney, or asking Stewart to participate in the ethics committee meeting.

This decision is a cautionary tale about performing medical procedures on a patient who cannot speak for himself and whose representative is making medical decisions that are contrary to the recommendations of healthcare providers. This situation might have been avoided if St. Mary had 1) sought a court order to perform the procedure, which would have required a hearing, briefing and a measure of proof that the surgery was medically necessary and the power of attorney should be invalidated; or, 2) included Stewart in the meeting of the ethics committee and the opportunity to be heard on Carter’s behalf. The court was clearly disturbed by the one-sided nature of the ethics committee meeting and the way the decision was reached to disregard the objections of the patient’s personal representative and proceed with a surgery to which she did not consent.



1Real parties include St. Mary Medical Center, St. Joseph Health System and David O’Brien, M.D., collectively referred to in the decision as “St. Mary.”

2In footnote 8, the court explains that given the evidence set forth in the motion (including but not limited to the depositions of co-defendant physicians), the hospital could be seen by a jury as playing a significant role in the decision to disregard the objection of the power of attorney and go forward with the surgery. “We briefly comment on St. Mary’s assertion that “the sole determination [of the ethics committee meeting] was that the Power of Attorney was valid and that the Power of Attorney indicated that all life-saving measures were to be done for Carter,” which we interpret to be an attempt by St. Mary to distance itself from the actual performance of the surgery. Dr. Denton and Dr. Ashtiani, however, described a closer connection between the ethics committee’s decision and the surgery itself. For example, Dr. Denton testified that the result of the ethics committee meeting was that “the pacemaker can be done by the person doing the procedure.” Dr. Ashtiani agreed that the ethics committee gave him the “green light” to proceed with surgery. Finally, Dr. Ashtiani noted that “risk management” told him he and Dr. Denton could sign the consent form when he completed the report on Carter’s pacemaker surgery. There are at least triable issues of material fact regarding the extent of St. Mary’s connection to the performance of the actual surgery. For these reasons, we feel comfortable, in discussing the issues the parties raise, indicating at times that St. Mary authorized Carter’s pacemaker surgery. We emphasize, however, that the extent of St. Mary’s role in the actual performance of the surgery is for a jury to determine.”

For more information on this and other recent decisions, please reach out to Reneé A. Richards.