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ALL PHYSICIANS ARE POTENTIALLY AT RISK FOR ELDER ABUSE CLAIMS
By Curtis A. Cole, Esq.
Thelen Reid & Priest, LLP

DOES THIS SOUND LIKE ELDER ABUSE?

A doctor failed to treat a serious decubitus ulcer on a nursing home patient who was under his care, failed to discuss the condition with family members, then chose not to order hospitalization, and "unilaterally" ended his relationship with his patient shortly before her death.

An appellate court concluded that such conduct was elder abuse.1

BUT, HOW ABOUT THESE?

The family of an 85-year-old terminal cancer patient sued the physician after the patient's death under the California elder abuse laws for not prescribing enough pain medication. The jury awarded $1.5 million in damages.2

A young woman delivered a baby and sued her doctor and the hospital for malpractice, later adding an alleged violation of the California elder abuse laws; specifically, abuse of a "dependent adult."3

After a nursing home resident fell and sustained a broken hip and shoulder, the jury was instructed that "neglect" under the California elder abuse laws included:

• Failure to provide medical care for physical and mental health needs
  
• Failure to protect from health and safety hazards,
  
• Failure to prevent malnutrition or dehydration, and
  
• Failure to assist in personal hygiene, or in the provision of food, clothing or shelter.4
  

Physicians, like many others, are probably unfamiliar with laws designed to protect the elderly against abuse and neglect. We have all heard stories about outrageous maltreatment of elderly patients, particularly in nursing homes, and custodial care settings. Indeed, we fear that both the frequency and seriousness of elder neglect are on the rise. We all are shocked and outraged at such callous mistreatment of elders - these folks could be our own parents and grandparents! But, perhaps with the exception of those who specialize in geriatrics or end-of-life care, physicians tend not to relate elder abuse laws to their own practices.

In fact, most physicians are potentially impacted by elder abuse laws, whether or not their practices focus on elder care issues. For example, few know that elder abuse laws cover "dependent adults" in addition to elderly patients. The definition of "dependent adult" has been broadened to include relatively young individuals who are "dependent" merely because they have been hospitalized.

The Elder Abuse and Dependent Adult Civil Protection Act5 was directed at acts of egregious abuse, not professional negligence or lack of due care. The legislature determined that:

• infirm elderly and dependent adults constituted a disadvantaged class,
  
• abusers were seldom subject to criminal prosecution, and
  
• very few civil cases were filed.
  

In order to encourage "interested persons" to retain attorneys to take up the cause of abused elderly persons and dependent adults, the legislature created financial incentives. These include:

• recovery of plaintiff's attorneys' fees and costs,
  
• pain and suffering damages for beneficiaries of the patient's estate and,
  
• punitive damages, upon clear & convincing proof of recklessness.
  

While physicians are unlikely to be charged with physical or financial abuse, the same cannot be said for neglect. The legal concept of "neglect" is unsettled and still expanding as appellate courts interpret the elder abuse laws in new and different factual contexts. Although the term "neglect" sounds a lot like professional negligence, they are not the same. Appellate courts are still developing criteria to differentiate the two. As an illustration, a nursing home patient allowed to suffer from malnutrition could result from both "professional negligence" and "neglect." Failure to monitor the patient's nutrition and to take corrective action could be inadvertent (i.e., a lack of due care). On the other hand, disregarding the clinical signs and symptoms of malnutrition, over an extended period of time, may be viewed as reckless. Recklessness requires a "deliberate disregard" of the high risk of harm. In other words, the difference between professional negligence and neglect may be more one of degree, rather than one of substance.

Practically speaking, an attorney is likely to characterize a physician's infrequent visits, lack of documentation, or failure to respond to questions or requests for orders from care givers as conduct showing a conscious disregard for the patient's welfare.

The following will help lay the foundation for a successful defense of an elder abuse claim.

• First, report known or suspected elder abuse to the proper authorities (see: Medical/Legal Q&A at page 4 of this issue).
  
• Next, schedule your frequency of visits to match the patient's needs, and be flexible if needs increase.
  
• Properly document observations regarding the patient's condition, responses to therapy and progress, or lack thereof.
  
• Be prepared to modify your treatment plan, if the patient fails to respond to treatment or if the patient's overall condition changes.
  

Your best defense is documented evidence that your time and attention was commensurate with your patient's condition!

1 Mack v. Soung (2000) 80 Cal.App.4th 966.
2 Bergman v. Eden Med. Ctr., Chin, M.D. (June 13, 2001) Alameda Superior Court Case No. H205732-1.
3 Price v. Community Hospital of San Bernardino (2001) San Bernardino County Superior Court Case No. SCV52538 (Writ denied in Community Hospital of S.B. v. S.B. Co. Superior Court, Case No. E025667)
4 Conservatorship of Gregory (2000) 80 Cal.App.4th 514, 519.
5 Cal. Welfare & Institutions Code § 15600, et seq.
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