|
RM Services
CME Program Online
Frequently Asked Questions
Office Practice Risk Evaluations
Arbitration
Self-Evaluation Toolkit
RM Articles
CAPsules Editions
CME Program/Schedule
RM Questions
RM Materials / Forms
RM Alerts
Case Of The Month - Past Issues
|
ELDER ABUSE CLAIMS:
WHAT DOCTORS NEED TO KNOW
by K. Kerry Ayazi, Esq.
CAP Risk Management and Patient Safety
CAP Risk Managers have been receiving questions about the status and nature of Elder Abuse Claims against healthcare providers, and CAP reported more than three dozen of these allegations in 2005. These claims are brought under California’s Elder/Dependent Adult Abuse Act (Welfare & Institutions Code §15600, et seq.). Physicians are unclear when the Abuse Act applies to elderly patients and they question “elder abuse” claims brought on behalf of younger patients. The law defining Elder Abuse claims is rapidly evolving. This article endeavors to inform on the fundamentals of current Elder/Dependent Adult Abuse legislation, and claims.
What is an Elder Abuse Claim?
In 1982, the California legislature passed the Elder Abuse and Dependent Adult Civil Protection Act (aka the “Elder Abuse Act”). The Abuse Act establishes reporting requirements (both mandatory and non-mandatory) for elder abuse, and for abuse of other dependent adults. Claimants seeking remedies under the Act can be an “elder,” i.e., a person residing in California, 65 years of age or older, or a “dependent adult.” A dependent adult is defined by law as any person between the ages of 18 and 64 years who (1) is admitted as an inpatient to a licensed 24-hour health facility, or (2) resides in California, and has physical or mental limitations that restrict his or her ability to carry out normal activities, or protect his or her rights, including but not limited to persons with physical or developmental disabilities. Thus, the Act applies not only to elders, but also to persons who are dependent adults.
Claims brought under the Elder Abuse Act differ from claims for professional negligence. “Professional negligence” relates to allegations of failure to exercise that degree of knowledge, skill and care ordinarily employed by reputable members of the profession, operating under similar circumstances. However, the California Supreme Court has held that “neglect” under the Act does not necessarily refer to “the substandard performance of medical services, but rather, to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults . . . to carry out their custodial obligations.” Therefore, it is extremely important that healthcare providers pay particular attention to the needs of elderly and dependent adult patients, including monitoring the patient’s nutrition, hydration, skin care, hygiene and patient safety; these are concerns which can inflame caregivers for these patients, and often serve as the genesis of Elder/Dependent Adult abuse allegations.
Basic Elements and Remedies of an Elder/Dependent Adult Abuse Claim
Claims brought on behalf of elders or dependent adults under the Abuse Act must set forth sufficient facts to constitute abuse. Misconduct must relate to physical abuse, neglect, financial abuse, isolation, abduction or other treatment that results in physical harm, pain, or mental suffering. The deprivation of goods or services that are necessary to avoid physical harm or mental suffering may also constitute abuse. Moreover, if the abuse is proven to have been committed with recklessness, oppression, fraud or malice, a plaintiff can also seek recovery of attorneys’ fees and costs, including the fees for a conservator (if needed) for the litigation.
Risk Management and Patient Safety Tips For the Healthcare Practitioner
Physicians cannot anticipate every set of facts that may lend itself to an abuse/neglect claim under the Abuse Act. However, the following are measures that, if consistently implemented, will help to decrease the likelihood of claims filed under the Elder Abuse Act:
• Clearly delineate the plan of care, including specific information re: patient needs; examples include patient nutritional needs, hydration, hygiene, skincare, and fallprevention needs.
• Communicate the plan of care, in written form, both to the patient and to caregivers.
• Assess the patient’s vulnerabilities (e.g., risk of falls) and any unique circumstances,
such as a chemotherapy patient who may be more susceptible to skin breakdown.
• Update the plan of care/orders as often as necessary, taking specific needs into account.
• During patient visits, continue to assess the environment, including patient safety, and supervising staff directly involved in patient care.
• Document any progress and changes in the plan of care necessitated by new developments
Conclusion
Cases brought under California’s Elder and Dependent Adult Abuse Act are being brought with much more frequency that seen before. As these cases continue to be decided, the law on this issue also continues to evolve. Whether the decisions will continue to promote an expansion of the Act’s application remains to be determined. In the meantime, physicians and other healthcare providers should recall the special patient they have in the elderly or dependent adult, and take all pertinent measures to employ proper risk management, including appropriate patient care and safety protocols.
|
