Anthony Carter was 78 years old when he was hospitalized. Doctors decided he needed a pacemaker. Over the objections of the person Carter had appointed as his agent under his power of attorney to make decisions about his health care, surgeons implanted the pacemaker. It malfunctioned, and Carter died.

Did elder abuse occur when the hospital and doctors authorized the surgery despite those objections?

That was the issue recently placed before the California Court of Appeal in Stewart v. Superior Court, 16 Cal. App. 5th 87, 87 (2017).

Behind the dry language of the appellate court’s decision is a tragic situation in which all the parties appear to have believed they were acting in Carter’s best interests. They also had very different views of whether a physician’s judgment trumps the decisions of the person designated by the patient to make healthcare decisions under a power of attorney.

Carter was seriously ill, incoherent and unable to eat when he was admitted to St. Mary’s Medical Center in Apple Valley on Feb. 1 of 2012.

He named his longtime companion, Maxine Stewart, his durable power of attorney for health care decisions during this admission. A registered nurse with an active license, Ms. Stewart had for more than 20 years been designated as Carter's agent under his power of attorney, which gave her authority to make medical decisions on his behalf.

The doctors treating Carter decided to perform surgery and implant a pacemaker in Carter, in part because he was experiencing four-second gaps in his heartbeat. On Feb. 7, Stewart canceled the procedure, saying the gaps resulted from sleep apnea, for which Carter had been treated by an outside physician. She asked for a second opinion about the pacemaker, but the record indicates that none was provided.

On Feb. 17, the doctors told Stewart that Carter would receive a pacemaker the next day. She “stated that she would absolutely not consent to such a procedure,”  and again asked for a second opinion.

The following day, Carter's doctors and the hospital’s risk management department held an ethics committee meeting and determined that the pacemaker surgery could proceed despite Stewart’s objections. Stewart was not informed of the meeting, and no one attended to represent her or Carter.

On the morning of Feb. 22, Stewart called the hospital to check on Carter, and was told he was scheduled for surgery that day. She again objected.

When she got to the hospital, she learned that the surgery had been performed at 8:30 a.m. The doctors and staff told her they had proceeded without her consent because she was not acting in Carter’s best interest.

Carter went into cardiac arrest later that day. When the pacemaker was removed on Feb. 24, it was determined that it had not been implanted correctly. Carter, who experienced brain damage, lingered in an acute skilled nursing facility until his death 14 months later.

Stewart sued the physicians and St. Mary’s in San Bernardino Superior Court under California’s Elder Abuse and Dependent Adult Civil Protection Act, along with claims for fraud, medical negligence and medical battery. (“Battery” is “an offensive and intentional touching without the victim's consent.” Medical battery is performing a medical procedure without the patient’s consent that causes harm.)

St. Mary’s told the trial court that it was not responsible for the actions of the doctors who performed the surgery because they were independent contractors, not employees. Holding its ethics committee meeting showed that it had not acted recklessly, it argued.

One of the treating doctors argued he could not have committed medical battery because he did not perform the actual surgery; another member of his practice group did.

The Feb. 17 ethics committee meeting was “a sham,” according to a declaration to the appellate court by Carter's medical expert, the former Chief Medical Officer at St. John's Health Center in Santa Monica. St. Mary’s was required to have a representative of Stewart or Carter at the meeting, he said. 

It also would have had to obtain a court order to overturn Stewart’s power of attorney, he added.

The appellate court did not rule on Stewart’s allegations. It focused only on whether the trial court erred in summarily dismissing the elder abuse and certain other claims.

It found that there were “triable issues of material fact” about whether elder abuse occurred within the meaning of the Elder Abuse Act when St. Mary's authorized Carter's pacemaker surgery over his designated agent's objection. It said the right to personal autonomy was the right the hospital denied Carter by authorizing the treating physicians to consent to the pacemaker on Carter's behalf.

Similarly, the appellate court explained that a jury could find that St. Mary's actions were reckless.

It sent the case back to the lower court with instructions to allow Stewart’s claims for elder abuse, fraudulent concealment and medical battery to be heard. It also awarded her the costs of her appeal.

By Rachel E. Balchum