Stewart v. Superior Court of San Bernardino Cnty.Stewart v. Superior Court of San Bernardino Cnty.
We now explain why we conclude we must grant the petition. Furthermore, 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).
PETITIONER'S ALLEGATIONS
The operative pleading alleges the following:
Timothy A. Denton, M.D., one of St. Mary's codefendants, told Stewart two days after Carter's admission that she should consider placing Carter in hospice care, as well as inserting a gastronomy tube (g-tube ). Stewart objected, and Dr. Denton agreed to order a calorie count instead of a g-tube.
Some of the defendants, including real parties in interest, planned to perform surgery and implant a pacemaker in Carter, in part because he was experiencing four-second gaps in his heartbeat. On February 7, 2012, Stewart canceled a pacemaker procedure and told real parties in interest she thought the four-second pauses were related to Carter's sleep apnea. She requested a second opinion regarding Carter's need for a pacemaker and opined that he had never previously shown " 'clear indicators' " that he needed one.
Also on February 7, 2012, Dr. Denton, real parties in interest, and others told Stewart that Carter required a g-tube because he was not receiving
On February 17, 2012, real parties in interest and the other defendants informed Stewart that a pacemaker procedure was scheduled for the following day. Stewart "stated that she would absolutely not consent to such a procedure" and again requested a second opinion.
The next day, real parties in interest and some of the other defendants, including Dr. Denton, determined through St. Mary's risk management department that they could continue with the pacemaker procedure despite petitioner's objection. Stewart had at no time consented to this procedure and had instead expressly objected to it.
Carter went into cardiac arrest sometime on or about February 22, 2012. On information and belief, this occurred because Carter did not need the pacemaker. The pacemaker was surgically removed on February 24, 2012. Carter, who had experienced brain damage, required acute skilled nursing care until his death on April 15, 2013.
PROCEDURAL BACKGROUND
Stewart named St. Mary, Dr. Denton, and others on several causes of action in the operative pleading. St. Mary moved for summary adjudication of most of these causes of action. As relevant to this petition, it 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 performed the surgery were not hospital employees.
For evidentiary support for these assertions, St. Mary largely relied on a declaration from Mary Ransbury, R.N., a licensed registered nurse and wound
Dr. Denton thought a pacemaker "was clearly indicated" for Carter due to "long [cardiac] pauses" requiring intervention by a specialist. Dr. Denton therefore referred Carter to another codefendant, Ramin Ashtiani, M.D., who eventually made the decision to implant the pacemaker and then actually performed the pacemaker surgery.
When Stewart refused to consent to a pacemaker procedure, Dr. Denton asked St. Mary's risk management department for a consultation regarding concerns he had about Carter's power of attorney. The risk management department decided to convene an ethics committee meeting. Dr. Denton, who participated in the meeting by phone, "stressed the patient could die" if he did not receive a pacemaker and said he did not feel Stewart was acting in his best interests because Dr. Denton knew Carter would "want everything done to save his life." There was a suspicion "that there might be a conflict with Ms. Stewart." After a meeting on a Friday afternoon, an "action plan" was reached that "the power of attorney was valid." However, the committee also concluded that Stewart could be voided as Carter's designee if she failed to authorize lifesaving measures, because "the language of the power of attorney stated, in essence, that all measures were to be taken to preserve [Carter's] life." At some point in time after the meeting, Stewart was in fact voided as the designee of Carter's power of attorney. At his deposition, Dr. Denton admitted he did not consult with any doctor other than Dr. Ashtiani about Carter's pacemaker procedure. Instead, he contacted St. Mary's risk management department and
Dr. Denton described the ethics committee's role in the surgery as follows: "[W]hat happens is that I provide risk management with information and they make a decision about what to do. [¶] ... [¶] For example, since I don't implant pacemakers, they will say 'Go ahead. The pacemaker is indicated. It's okay to do that.' And then the pacemaker can be done by the person doing the procedure." For his part, Dr. Ashtiani, when asked if the risk management department "gave [him] the green light" to perform the pacemaker surgery, responded, "If medically necessary, from paper standpoint, we are okay to do that."
In conjunction with its argument regarding the cause of action for medical battery, St. Mary also offered an admission form showing Carter had signed
The bulk of this declaration addressed allegations that St. Mary failed to provide adequate wound care to Carter, which does not concern us for the reasons stated in footnote 2, ante . In fact, only the last paragraph of the Ransbury declaration discussed the ethics committee meeting or the topic of Carter's consent to the pacemaker surgery. That paragraph reads: "Finally, plaintiffs allege in their operative Complaint that hospital defendants fraudulently concealed from Maxine Stewart the fact that Mr. Carter was to undergo pacemaker implantation surgery. Based on my review of the above-referenced materials, I note that the sole determination of the Ethics Committee 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. The Ethics Committee did not decide whether or not to operate on Mr. Carter. This decision to perform surgery was made by Dr. Ashtiani. This stands to reason given that a patient's surgeon is the one who determines whether a surgical procedure is appropriate and should be performed, not the hospital staff where the surgery is to take place. Accordingly, based on my review of the above noted materials and my education, training and experience, I conclude that hospital defendants had no duty to inform Maxine Stewart that Mr. Carter was to undergo surgery. If such a responsibility existed under the circumstances it would be Dr. Ashtiani's as he was Carter's treating physician and surgeon."
Stewart filed written opposition to St. Mary's summary judgment motion. She generally argued that declarations from two medical experts, Vikram Rajan, M.D., and Charles Pietrafesa, M.D., created triable issues of material fact regarding the standard of care and causation. Dr. Pietrafesa, who focused most of his opinions on the ethics of conducting an ethics committee meeting as occurred in this case, discussed in detail his opinion "that the decision to implant a permanent pacemaker without appropriate informed consent on this patient fell below the standard of care in the medical community."
In addition to the declarations of Dr. Pietrafesa and Dr. Rajan, Stewart relied in part on evidence in the form of doctor's notes
Dr. Denton noted on the February 1, 2012 admission form that Carter had "a long complex history" and described Carter's social environment as "fairly supportive." After a consultation that occurred the day after Carter's admission, a different doctor described him as "markedly somnolent" and indicated that he "open[ed his] eyes only transiently."
On February 6 or 7, 2012, Dr. Denton completed a doctor's note regarding "extensive discussions" he had with Stewart regarding Carter's caloric intake on an undisclosed date. The note reflects that Stewart asked to wait until after a calorie count was completed before placing a g-tube, and that she still did not want a g-tube. She said Carter was "taking in more calories now" after Dr. Denton indicated Carter was not consuming adequate nutrition. Although Dr. Denton agreed to make a final decision about g-tube placement later, he indicated he would ask to have Carter "observe[d] during the intervals when the family is in the room."
Rajeev Yelamanchili, M.D., is the doctor who had previously treated Carter for sleep apnea, as alleged in the operative pleading. On February 7, 2012, Dr. Yelamanchili consulted with Carter regarding "obstructive sleep apnea syndrome [ (OSA) ] with sinus pauses"; he stated Carter had been diagnosed with "severe OSA ... 2 years back." He suggested treating Carter's apnea"to see how the sinus pauses are," said he would be "happy to follow [Carter] as an outpatient after discharge," and indicated a repeat study might need to occur because Carter had lost a significant amount of weight. Dr. Yelamanchili's report concludes with: "If the follow up study fails to reveal evidence of OSA with sinus pauses then permanent pacemaker will be indicated. I have informed this to the wife and she is satisfied."
The next doctor's note in chronological order is signed by Dr. Denton and dated February 18, 2012. After a notation that "[m]uch has happened over the last 24 hours," Dr. Denton described the ethics committee meeting and the decision reached thereat. He then remarked: "Given this, [Stewart] was contacted by the nursing staff stating we are going to be moving forward with appropriate care of this patient. [¶] What is also clear is that Adult Protective Services has been called and are anxiously await [sic ] my interview with Adult Protective Services. [¶] So what we have now is, we now have the freedom to provide appropriate care for this patient and today we will be trying to find the appropriate calorie count." After recounting that Carter was oriented to person but not place or time, Dr. Denton opined that Carter "[c]learly" could not make decisions on his own. He then wrote: "If the document is legal, if the power of attorney is legal, then we will proceed appropriately. If the power of attorney is not legal, then we will proceed appropriately with the exact same therapy." The February 18, 2012 doctor's note concluded by indicating that Dr. Denton was waiting for a final calorie count but planned to order g-tube placement and that he would "be making determination regarding the appropriateness of permanent pacemaker placement, even though he has already had a 4 second pause."
Dr. Ashtiani prepared a report after the pacemaker surgery on February 21, 2012. He acknowledged Carter's sleep apnea but stated, "it was determined that patient will definitely benefit from pacemaker due to prevention of malignant form of arrhythmia and its complications especially if it happens and provoked during episodes of sleep apnea." Next, Dr. Ashtiani commented that Stewart had previously revoked consent to the pacemaker surgery and said he told Dr. Denton he "basically discharged [him]self from the rest of the care for the patient."
Dr. Ashtiani then wrote: "Again, I was contacted by Dr. Denton since he had frequent and multiple discussions with the patient's girlfriend due to different medical issues and need for medical intervention and refusal of her to help the patient. She provided with a paper stating as power of attorney which was obtained when the patient was not alert and oriented, to be able
The final doctor's order contained in our record was prepared by Carter's discharging physician, Huy Nguyen, M.D. The note
In addition to these doctor's notes and related records concerning Carter, Stewart relied on deposition testimony from numerous witnesses when opposing St. Mary's summary judgment motion. Stewart herself testified that Carter first gave her authority to make medical decisions on his behalf in 1998 or 1999. She said when she asked Dr. Denton about trying TPN instead of a g-tube during Carter's 2012 admission to St. Mary, his response was, "Absolutely not." He gave no reason. When asked whether, based on her education and training as a nurse, Stewart had developed an impression as to why Dr. Denton might have rejected TPN, her response was, "I believe he wanted [Carter] to be put in a care facility." Stewart confirmed that Carter had been seeing Dr. Yelamanchili for sleep apnea"[f]or many years," and she reported that, when Dr. Denton first told her he recommended a pacemaker, she said, "That's because he has sleep apnea. ... He needs to be on a CPAP machine." Stewart's "next step" was to contact Dr. Yelamanchili, which she did "the next moment [she] was able to speak to him." When Stewart "told [Dr. Yelamanchili] that Dr. Denton wanted to put in a pacemaker, [Dr. Yelamanchili] said, 'We don't need to do anything invasive. He needs a CPAP machine." Stewart then testified that a St. Mary employee called to tell her a pacemaker surgery had been scheduled; Stewart "just told them, 'I'm not consenting,' and that [she] wanted a second opinion."
Alvarez explained that, on Tuesday, February 22, 2012, she, Bunch, Dr. O'Brien, and others met with Stewart, who
Bunch's deposition testimony adds the following additional details. Neither Dr. Ashtiani (the surgeon who implanted the pacemaker), Dr. Yelamanchili (the pulmonologist who treated Carter for sleep apnea ), nor Dr. Biswas (the author of the "poor historian" doctor's note) participated in the ethics process. Rather, "[i]t was Dr. Denton, from an M.D. standpoint, that was involved in that decision." Although she would not speculate as to his meaning, Bunch admitted Dr. Denton, when told of the action plan, spoke the words, "So my posterior is covered." Bunch also authenticated a note she had written, which
Stewart also noted Dr. Denton's deposition testimony established that he and Dr. Ashtiani were both members of the same medical group when they provided care to Carter. Her trial court brief in opposition to St. Mary's motion alleged that "Dr. Denton specifically pushed for the placement of a permanent pacemaker by Dr. Ashtiani, an electrophysiologist, his partner and a surgeon in the same group."
Finally, Stewart offered deposition testimony from Dr. Nguyen and Dr. Noori. Both testified that Carter did not require a pacemaker on an emergency basis. Dr. Noori explained that Carter went into cardiac arrest after a lead from the pacemaker dislodged.
Shortly before the hearing on St. Mary's motion for summary judgment and/or adjudication, the trial court heard a similar motion by Dr. Denton. Finding triable issues of material fact existed regarding breach and causation, the court denied Dr. Denton's motion as to Stewart's cause of action for professional negligence. The trial court found the motion procedurally improper as to the elder abuse claim, but it summarily adjudicated the cause of action for medical battery because Dr. Denton "did not physically perform the unconsented surgery." Finally, at least as relevant to this petition, the trial court denied the motion as to Stewart's cause of action for fraudulent concealment. With respect to the latter ruling, the trial court explained: "the February 18, 2012 notes suggest [Dr.] Denton was prepared to ensure the procedure no matter what by involving Adult Protective Services, [Dr.] Denton advocated for the surgery to the committee, and [Dr.] Denton said 'I won't do that' when asked about a second opinion. Thus, a jury could infer that the failure to inform Stewart the surgery would occur was an intentional effort to conceal the scheduling of the surgery."
As previously indicated, the trial court granted St. Mary's motion for summary judgment and/or adjudication, but only as to the causes of action for elder abuse, medical battery, and fraudulent concealment. The court explained it was granting the motion as to the elder abuse claim
Stewart lodged evidentiary objections to St. Mary's evidence in conjunction with her opposition, and St. Mary, in reply, did the same with respect to Stewart's evidence. Our record contains no indication that the trial court ruled on these objections; any such objections are therefore presumed overruled and preserved on appellate review. ( Reid v. Google, Inc. (2010)
DISCUSSION
"A party may move for summary adjudication as to one or more causes of action within an action ... if the party contends that the cause of action has no merit, ..." ( Code Civ. Proc., § 437c, subd. (f)(1).) "A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment." (Id ., subd. (f)(2).)
"A defendant making the motion for summary adjudication has the initial burden of showing that the cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. [Citations.] If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff's opposing evidence and the motion must be denied. However, if the moving papers establish a prima facie showing that justifies a judgment in the defendant's favor, the burden then shifts to the plaintiff to make a prima facie showing of the existence of a triable material factual issue. In meeting this obligation, the plaintiff may not rely on the mere allegations of its pleadings, but must 'set forth the specific facts showing that a triable issue of material fact exists as to that cause of action. ...' [Citation.] 'There is a triable issue of fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.' " ( Intrieri v. Superior Court (2004)
1. The trial court erred in summarily adjudicating the elder abuse cause of action
Stewart argues the trial court erred in summarily adjudicating her cause of action for elder abuse because there are triable issues of material fact regarding whether "denial of care and abuse of custodial power [occurred] with respect to the unauthorized surgical procedure to implant a pacemaker." In response, St. Mary asserts its act of conducting an ethics committee meeting about the power of attorney was not an act implicating custodial duties toward Carter.
" '[The Act] affords certain protections to elders and dependent adults. Section 15657 of the Welfare and Institutions Code provides heightened remedies to a plaintiff who can prove "by clear and convincing evidence that
However, the Winn court emphasized that the Act is "not meant to encompass every course of behavior that fits either legal or colloquial definitions of neglect." ( Winn , supra ,
To us, it appears Carter depended on St. Mary to meet his basic needs in ways that establish the type of custodial relationship described by the Winn court. In fact, we note Carter's admission to an acute care facility such as St. Mary, standing alone, would have been sufficient to make him a "dependent adult" who would be entitled to the Act's protections even if he had not also qualified as an "elder" by virtue of his age. ( Welf. & Inst. Code, §§ 15610.23, subd. (b) [definition of "dependent adult"], 15610.27 [definition of "elder"]; Health & Saf. Code, § 1250, subd. (a) [definition of "general acute care hospital"].) The facts of this case further support our conclusion, as Carter was experiencing confusion upon admission, and a doctor's note prepared a week after admission describes him as a "very poor historian" who could not provide a coherent history and tended only to mumble and grunt. The record also shows that Carter at times needed medical assistance, including a g-tube, to consume adequate calories. Finally, 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 , supra ,
St. Mary does not and cannot deny that it had at least some amount of care and custody over its own patient; rather, it asks us to make a care and custody determination as 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
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." ( Winn , supra ,
We do not see how Winn supports the suggestion that "when [St. Mary] interpreted [Carter's] Power of Attorney, [it was] no longer acting as care custodian[ ], but rather as [a] healthcare provider[ ] focused on the undertaking of medical services." In fact, in our view, Winn supports the opposite conclusion. Here, St. Mary accepted Carter as a patient with knowledge of his "confus[ed]" state, which left him a "poor historian," and its records show Carter at times required assistance with feeding. Moreover, 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." ( Winn , supra ,
We see no reason why the facts that the decision to allow Dr. Denton and Dr. Ashtiani to sign the consent to the pacemaker surgery in Carter's stead was made in a setting that was more like a conference room than an examination room, or that St. Mary sought advice from counsel rather than from a doctor other than Dr. Denton, must mean that the ethics committee meeting served a noncustodial function. After all, "it is the defendant's relationship with an elder or a dependent adult-not the defendant's professional standing or expertise-that makes the defendant potentially liable for neglect." ( Winn , supra ,
In support of its position that the ethics committee meeting was simply an administrative task that cannot constitute neglect under the Act, St. Mary relies heavily on Covenant Care . There, the court wrote: "As used in the Act, neglect refers not to the substandard performance of medical services but, rather, to the 'failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.' [Citation.] Thus, the statutory definition of 'neglect' speaks not of the undertaking of medical services, but of the failure to provide medical care." ( Covenant Care , supra ,
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
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 California Supreme Court has described the right to consent to medical treatment as " 'basic and fundamental,' " "intensely individual," and "broadly based." ( Thor , supra , 5 Cal.4th at pp. 735-736, 741,
Here, it is 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
In a related contention, and relying exclusively on Cobbs v. Grant (1972)
Furthermore, we find the facts Stewart has alleged and proved could support not just some formless cause of action that is something more than professional negligence, but a cause of action for elder abuse, specifically. Any of the following three theories supports this conclusion.
First, if Stewart proves to a jury that St. Mary failed to "exercise that degree of care that a reasonable person in a like position would exercise" with respect to Carter ( Welf. & Inst. Code, § 15610.57, subd. (a)(1) ), she will have shown that it engaged in actions that constitute neglect under the Act.
In addition, a reasonable jury could find St. Mary committed neglect of
Finally, we think a reasonable jury could find St. Mary "fail[ed] to protect [Carter] from health and safety hazards" ( Welf. & Inst. Code, § 15610.57, subd. (b)(3) ) by authorizing the surgery in the way it did. Dr. Pietrefesa, who has over a decade's experience as the head of a hospital ethics committee, characterized the ethics committee meeting that occurred here as a "sham" and stated St. Mary needed a court order to authorize a surgery over Stewart's objection. According to Dr. Pietrafesa, the requirement for a court order is a "safeguard [that] is in place to protect the patient from the abuse that occurred in this case." Dr. Pietrafesa also concluded that St. Mary "was required to have representation from Maxine Stewart and/or a representative from the patient present at the meeting to present all the facts pertinent to the decision to ignore the legally binding consent document executed by [Carter]." St. Mary's only evidence on the ethics of the procedure it followed comes from the declaration of Ransbury, a nurse,
For the foregoing reasons, we find Stewart has at least shown the existence of triable issues of material fact regarding whether custodial neglect within the meaning of the Act occurred when St. Mary authorized Carter's pacemaker surgery over Stewart's objection. We now turn to whether she has produced enough evidence that St. Mary "has been guilty of recklessness, oppression, fraud, or malice in the commission of this" neglect, so as to
We find uncontroversial the idea that any surgery on a 78-year-old man who has been admitted to the hospital in such a state that St. Mary looked to his designee for consent is potentially dangerous, and testimony from Dr. Noori, Dr. Nguyen, and Dr. Rajan supports Stewart's assertion that the surgery was never necessary. Also, and as discussed ante , the evidence shows there are triable issues of material fact regarding whether St. Mary adequately protected Carter from health and safety hazards when it authorized the surgery without the participation of Stewart or anyone "from [Carter's] side," even though it knew Stewart had offered an alternative explanation for the gaps in Carter's heartbeat and requested a second opinion on that issue. St. Mary's suggestion that it cannot be punished for listening to the advice of a doctor in good standing at the hospital fails to account for its decision to structure the ethics committee meeting in an entirely one-sided manner. (See Covenant Care , supra ,
For the foregoing reasons, the trial court erred in summarily adjudicating Stewart's cause of action for elder abuse. At oral argument, St. Mary's counsel expressed concern that our holding, especially with respect to the care and custody issue, will be interpreted to mean that any act of negligence by a hospital will constitute elder abuse. We share no such fear, since " ' "cases are not authority for propositions not considered." ' " ( Loeffler v. Target Corp. (2014)
2.-3.
Let a peremptory writ of mandate issue, directing the Superior Court of San Bernardino County to vacate the October 3, 2016 order granting summary adjudication of Stewart'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 temporary stay we issued is to dissolve upon the filing of this opinion.
Stewart is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
Petitioner is awarded her costs on appeal.
We concur:
McKINSTER, J.
MILLER, J.
Notes
Our order directed the parties to "specifically ... address the applicability of Winn v. Pioneer Medical Group, Inc. (2016)
We omit allegations that are unnecessary to the resolution of this petition, including allegations pertaining to the wound care provided to Carter.
Real parties in interest are St. Mary Medical Center, St. Joseph Health System, and David O'Brien, M.D. For ease of reference, we refer to these parties collectively as "St. Mary." We mean no disrespect.
Carter's capacity to execute the power of attorney is not at issue in this proceeding.
From 1992 to 2009, Dr. Pietrafesa served as the Executive Medical Director and Chief Medical Officer at St. John's Health Center in Santa Monica, California. In that capacity, he was "responsible for the management of the ethic committee," established the hospital's bioethics service, and "had consulting and direct line responsibility for the day to day operations of the activities of the hospital's bioethics function."
Various doctor's notes refer to Carter's "girlfriend" or "wife." The operative pleading refers to Stewart as Carter's "partner," and one of Stewart's experts referred to her as Carter's "life partner." We follow the parties' convention and infer that any references to Carter's partner, girlfriend, or wife are to Stewart.
Some of the testimony from Alvarez and Bunch that Stewart used in opposing the motion is identical to the testimony St. Mary used to establish the foundational facts we described ante. We now summarize only that testimony from Stewart that is new.
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.
In fact, after petitioner's counsel responded to the tentative ruling with respect to the cause of action for elder abuse at the hearing in the trial court, counsel for St. Mary stated: "What counsel just finished describing was a rock-solid case for professional negligence."
"Particularly when the restoration of normal health and vitality is impossible, only the person whose moment-to-moment existence lies in the balance can resolve the difficult and uniquely subjective questions involved. Regardless of the consequences, the courts, the medical profession, and even family and friends must accept the decision with understanding and compassion." (Thor, supra,
While the Act gives more specific examples of the types of acts that constitute neglect of an elder, this list is nonexhaustive. (Welf. & Inst. Code, § 15610.57, subd. (b).) We have found little discussion of the parameters of this catchall category in the elder abuse cases we have read, but we presume the Legislature created it for a purpose. That the right to autonomy possesses the type of fundamental importance we have described makes it easier to conclude that this is a case that appropriately falls within the catchall provision.
Stewart objected in the trial court that Ransbury lacked foundation to opine about the committee meeting, but the trial court failed to rule on her objection. Because Stewart does not argue the merits of her objections here, we do not pass on this issue.
See footnote *, ante.