Malpractice debate.

Just when does a doctor's mistake amount to elder abuse?

That's a big question these days among doctors who accuse patients" attorneys of trying to get around the state's tough law limiting medical malpractice judgments by suing them under the Elder and Dependent Adult Abuse law.

The California Medical Association is seeking publication of a recent appellate court decision that it believes limits use of the elder abuse law. The California Court of Appeal in Ventura recently ruled physicians cannot be sued under the law for acts of "simple professional negligence."

The case involved several doctors who resuscitated a woman in respiratory and cardiac arrest despite a do-not-resuscitate order from the family. Life support was later withdrawn and the woman died.

The appeals court upheld a lower court decision that the patient's family had to show doctors" actions were "reckless, oppressive, fraudulent and malicious" to win a judgment under the act, a standard not met in the case.

Susan Penney, CMA legal counsel, is seeking to have the ruling published so it can be cited as precedent, contending it will help end to "meritless" elder abuse claims against doctors.

"We need physicians who are not always fearful of being sued," Penney said. "I am not saying there is not a place for the (elder abuse) statute but we have to accept there is some abuse of the statute going on."

Plaintiffs' attorney Katherine Stebner maintains the ruling is not worth publishing because it broke no new ground.

"The case law is clear as to what elder abuse is and isn't already," Stebner said. "They are trying to muddy the waters."

Staff reporter Laurence Darmiento can be reached at [phone], ext. 237, or at [e-mail].