CASE OF THE MONTH: ELDER ABUSE ALLEGATIONS: THE DRUG TREATMENT TIGHTROPE

By Gordon Ownby
CAP-MPT's General Counsel

When treating patients who are protected under California’s Elder Abuse Act, justifying that the proper level of a mind-altering medication was given may become an important element in a physician’s defense.

That is because one of the elements that a jury may consider in an accusation of “elder abuse” is whether a health care provider used a “physical or chemical restraint or psychotropic medication as punishment.” Given the volatility of such an accusation, the ability of a physician to later testify from a well-documented medical chart may be crucial.

Dr. C, a cardiologist, had been the patient’s physician for more than 20 years and was her attending physician when, at age 96, she was hospitalized for an altered level of consciousness, possible metabolic encephalopathy, COPD, and progressive dementia. After spending a period in a direct observation unit, where Dr. C prescribed IV hydration and Decadron, the patient was transferred to a skilled nursing facility.

During the patient’s 10-week stay at the nursing facility, the patient’s nutritional status and overall health deteriorated. During two months of that stay, Dr. C ordered Haldol for the patient, to be given every eight hours.

At the SNF, the patient developed a large sacral ulcer and was transferred back to the acute care hospital. While her decubiti were treated, the patient’s nutritional condition deteriorated further. She died after spending her final two weeks in a specialty hospital.

The patient’s family sued Dr. C under California’s “Elder Abuse and Dependent Adult Protection Act.” Under the Act, if a health care provider is found by “clear and convincing evidence” to have acted with “recklessness, oppression, malice, or fraud” to “abuse or neglect” the patient, the family of the patient may collect an award in excess of what would be allowed in a more simple “medical negligence” suit.

At trial, the plaintiffs’ expert physician testified that Dr. C lacked justification for his order for Decadron by disputing any evidence of swelling on the brain. The expert claimed the lack of physician orders for treating the decubiti at the skilled nursing facility violated state regulations, contended that Dr. C’s prescription of Haldol every eight hours was a form of “chemical restraint,” and testified that keeping the patient under the constant influence of Haldol for two months was tantamount to “elder abuse.”

Dr. C’s defense attorney neutralized the inflammatory “abuse” allegations with evidence of Dr. C’s long-standing, caring relationship with the patient and her family, his weekly visits to see the patient at the facility, and the lack of any complaints by the family to Dr. C during the patient’s ordeal.

In the end, the jury split 6-6 on whether Dr. C had committed “neglect” but unanimously rejected the contention that he acted with “recklessness” or “malice.” The plaintiffs failed to carry their burden of proof.

Though the plaintiff attorney’s “elder abuse” gambit failed, the close call highlights the particular risks of care in this area. Prescribing psychotropic medications is one such peril: While the Elder Abuse Act can ensnare a physician for prescribing excessive medication, another trend by Elder Abuse Act plaintiffs is to accuse physicians of failing to prescribe enough pain medication for their patients.

By gaining knowledge of the special issues involved in treating patients in nursing facilities, physicians can help thwart plaintiff attorneys from “abusing” California’s elder abuse protections.

Comments on Case of the Month may be directed to Gordon Ownby, CAP-MPT’s general counsel, at gownby@cap-mpt.com