Elder Abuse: Addressing the Patient's Quality of Life

In passing the Elder Abuse and Dependent Adult Civil Protection Act, the Legislature believed that elderly and dependent-adult patients did not have the same incentive to sue over alleged medical mistreatment that a younger or working person would. That is because should a senior be mistreated and then die for reasons not directly related to the mistreatment, the family is entitled to little monetary recovery.

The Elder Abuse Act, however, gives family members a method to recover the "pain and suffering" award that the deceased patient herself would have received for a health care provider's neglect. Recognizing that many Elder Abuse Act cases may involve small monetary recoveries, the Act also allows a prevailing plaintiff to recover attorneys' fees from the defendant. Finally, the Act allows for a tripling of punitive damages, if certain thresholds of abuse are proven.

But while public policy may rightly encourage recovery for egregious acts of neglect (usually in a nursing home setting), the Elder Abuse Act has also apparently set off a scramble among plaintiff attorneys to find neglect almost everywhere.

Dr. G is a gastroenterologist who placed a gastrostomy tube in an 81-year-old patient with history of CVA, renal failure, diabetes and other ailments. Dr. G subsequently became the gentleman's admitting physician at the sub-acute unit of a local hospital. Though not mentioned on the ventilator-dependent patient's admitting diagnosis, the records reflected that on admission to the unit he already had a pressure sore in the coccyx area. The records also contained two contradictory "wound assessment" records: one describing the lesion as a stage II "excoriation" and the other as a stage III wound, 1.5 cm x 1.5 cm. in size.

Further contradicting these descriptions is an admitting "assessment of skin integrity," which included a "low risk" recommendation for pressure relief.

As the primary care physician, Dr. G was to see this immobile patient twice weekly for the first month and then once a week thereafter, except for emergencies or sudden changes in condition. There was no indication that Dr. G issued any orders on admission with regard to the decubitus ulcer, but on the third week of admission, he issued an order to "clean the sacral area pressure sore with normal saline." Two days later, Dr. G ordered an egg crate mattress and repeated his order several times over the next month to clean the wound with saline. At about the sixth week of admission, Dr. G ordered a culture and sensitivity of the wound and a surgical consult. A surgeon debrided the now Stage IV wound, which had reached 14 cm x 16 cm x 6 cm in size.

Otherwise, nursing documentation of treatment was scant for the first seven weeks after admission. After the family complained about the wound, daily "skilled nursing assessments" indicated that the wound was treated "per orders" or "per plan."

The wound did not improve over the next month and Dr. G's attempts to persuade the family to approve a colostomy for the father (because of the wound's proximity to the anus) were met with resistance. After a total of 13 weeks in the sub-acute unit, the patient was transferred back to the ICU, where he died of multiple systems failure.

The patient's family sued Dr. G and the hospital for elder abuse.

The expert witness for the family faulted Dr. G for failing to promptly order the egg crate mattress and for failing to aggressively treat the patient's malnutrition. Expert consultants retained by Dr. G's defense attorneys, however, found that Dr. G's responses to nursing reports of the wound were appropriate.

The family reached a settlement with the hospital and then agreed to dismiss Dr. G without payment - provided that he apologize for his care. In a letter to the patient's two sons, Dr. G explained the multiple health problems that afflicted their father and stated his "regret that my efforts did not work to improve his condition." Dr. G also offered that more "aggressive action" for this patient might have improved the quality and prolonged the longevity of his life.

Dr. G's words provide good guidance on avoiding elder abuse allegations: The physician who takes (and documents) "aggressive action" to improve the quality of a dying patient's life will be a poor target for a plaintiff's attorney.

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Gordon Ownby is general counsel of CAP-MPT. Comments on Case of the Month can be directed to gownby@cap-mpt.com.