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In a victory for plaintiffs attorneys, a unanimous state Supreme Court on Thursday cleared the way for punitive damages in elder abuse cases, ruling that such actions are not subject to hurdles designed to limit medical malpractice awards. Writing for the court, Justice Kathryn Mickle Werdegar said she could find nothing “to suggest the Legislature intended to afford health care providers that act as elder custodians, and that egregiously abuse the elders in their custody, the special protections against exemplary damages they enjoy when accused of negligence in providing health care.” In Covenant Care Inc. v. Superior Court, 04 C.D.O.S. 2526, the court was considering the relationship between Code of Civil Procedure � 425.13, which governs health care professional negligence, and the Elder Abuse Act, Welfare and Institutions Code � 15600. The case ended up at the Supreme Court on a plaintiffs motion for punitive damages in a suit alleging elder abuse. Plaintiffs argued that such matters are not governed by 425.13, which puts restrictions on punitives. The defendant disagreed and, relying in part upon Central Pathology Service Medical Clinic Inc. v. Superior Court, 3Cal.4th 181, argued that elder custodians’ liability is controlled the same way as other medical care. Considering the case prompted a flurry of amicus curiae filings, Werdegar’s opinion was relatively short — only 25 pages — and straightforward in its examination of the competing statutes. Although technically not a part of the 1975 Medical Injury Compensation Reform Act, 425.13 is in the same realm as MICRA because it sets up barriers in medical malpractice cases, said Sharon Arkin of Robinson, Calcagnie & Robinson in Newport Beach. Arkin filed an amicus brief on behalf of Consumer Attorneys of California; she’s the group’s president-elect. She called 425.13′s limits on punitives “very onerous.” The plaintiffs in Thursday’s case had sued in Los Angeles Superior Court after an elderly man afflicted with Parkinson’s disease died after allegedly being neglected in a nursing home. He had developed ulcers after being left in excrement and was dehydrated and starved, according to the suit. In 1999, the plaintiffs amended their complaint in order to seek punitive damages. A trial judge granted the motion and the Second District Court of Appeal affirmed. John Sullivan, president of the tort-reform Civil Justice Association of California, said that although the decision is a victory for the children of the alleged victim, it will have negative consequences for society down the road because health care providers will raise their fees to pay for increased liability. “It’s just sucking money out of an already underfunded system,” he said. CJAC had also filed an amicus in the case.

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