Professional negligence and medical malpractice are separate and distinct from neglect as a cause of action in the realm of elder law. Various state statutes and state common law define the independent “neglect” cause of action and establish different rights and remedies that an injured party might receive if neglect is proven at trial. Understanding this important legal distinction, especially as it relates to instances of suspected physician neglect, is critical for a concerned family member or any other interested party to gauge accurately their legal rights and options to ensure the safety and protection of their elderly loved one.
Aside for limited instances, such as diversity of citizenship, high dollar value claims disputes, or, instances where a patient may seek to hold the federal government as a liable defendant in the doctor neglect claims case, a cause of action for neglect of an elderly person by a medical professional will be subject to the applicable laws in the state jurisdiction where the incident of alleged neglect by a clinician happened originally. Problematically, while many state governments have enacted stricter penalties for abusers of the elderly and established significantly more resources for vulnerable elderly populations, these laws, rights, and acts will greatly differ from state to state.
As noted, virtually all doctor neglect claims will begin as a filing at the state civil courts, should a doctor neglect case not be settled before filing suit. For example, state laws in California adopted an Elder Abuse Act which states, in pertinent part, that patient neglect is the negligent failure of an individual charged with the care and well-being an elderly individual to provide for the vulnerable older individual’s physical, medical, and psychological health while under the care of another individual. In instances of doctor neglect, the physician does not perform his or her medical duties below a reasonable standard of care, but rather, failed to take the action that another reasonably behaving professional in a similar capacity would have done in a similar situation. Ultimately, the neglect, or failure to act upon evidenced signs of pending risks or problems in patients under the care of the physician will lead to serious medical problems for patients, if left unresolved for even a brief period of time in some cases of certain medical issues and the inherently vulnerable elderly patient populations residing in nursing homes.
While generalized to many other states, the California laws differentiating an act of doctor neglect from a medical malpractice or even personal injury claim is the negligent failure of the physician to exercise his or her duty of care owed to a dependent elderly patient.
Generalizable to most states in the US, of course pending state specific damage caps and other statutory law, is the idea of what constitutes applicable damages to request in a claims case or lawsuit.
Ultimately, the inherent value of damages in any lawsuit, including those relating to doctor neglect, derives from the proximate cause of harms sustained by an individual as the result of another’s negligence. However, should an incident of neglect not lead to documentable damages, patients may have limited room to file claims, as damage awards in any lawsuit are predicted on the expected future, current existing, and historical costs associated with a negligent act causing injury, as well as certain other legal entitlement such as the potential for punitive damage awards from jury trials instances of doctor neglect exhibiting extreme indifference or cruelty to the otherwise already vulnerable and dependent elderly patient.
Damages in most, if not all medical malpractice and professional liability cases are paid by a physician’s malpractice insurance policies. Neglect, however, is generally not covered by those policies. While virtually all doctors carry ample liability coverage for themselves and others, few if any policymakers would concur with the possibility of neglect liability coverage being provided in the event of the neglect of an elderly dependent or patient leading to bodily or psychological damages to the patient. In short, physicians are personally liable for damages claims stemming from instances of the neglect of an elderly or vulnerable patient.
The US Department of Health and Human Services established the National Center on Elder Abuse, which in 2007 defined “neglect” as the refusal or failure by those responsible for an elderly individual to provide food, shelter, health care or protection for a vulnerable elder. This definition is derived from various state adult protective services statutes that have been in effect since the early 1990’s. Those laws and this definition of neglect create an affirmative duty for a person to act or aid another individual if certain conditions exist. Within the context of a doctor-patient relationship, those conditions exist from multiple perspectives:
As a cause of action for “doctor neglect” has a much lower threshold than medical malpractice. Establishing a malpractice claim requires a medical negligence attorney to verify the existence of a doctor-patient relationship and the standards of care that are applicable to a particular situation within that relationship, to prove that the doctor violated those rules, to show that the patient was injured as a result of that violation and that the patient suffered damages from that injury. In contrast, a “doctor neglect” claim requires an elder law negligence attorney to show that a relationship with a patient existed or that the physician had a statutory obligation to take action. Whether or not the doctor did take action is typically a black-and-white matter.
An experienced elder law attorney will be able to assess a specific situation to determine if a doctor is liable for either or both of professional negligence, doctor neglect. Because of the continued variation in doctor neglect laws among the fifty states, that attorney will first determine what the applicable doctor neglect laws are for the state in which the elderly individual was injured. An injured party or his or her family members should not assume that a cause of action exists for doctor neglect solely because a physician did not provide certain medical services.
If that cause of action does exist in the applicable jurisdiction, the injured party or his or her family will need to file a lawsuit within the applicable statute of limitations, which is typically coincident with the statute of limitations for medical malpractice claims. Again, an elder law attorney will advise an injured individual and his family the applicable statutes. In any event, delaying a lawsuit is rarely a sound idea because filing a suit after the applicable statute of limitations has expired will likely cause a dismissal of the case.
References:
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1291321/
https://www.medicare.gov/claims-and-appeals/file-a-complaint/complaint.html
https://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNProducts/Downloads/Avoiding_Medicare_FandA_Physicians_FactSheet_905645.pdf
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1664522/pdf/bmj00210-0027.pdf
http://ccerap.org/images/stories/pdf/newsletters/links/Cleveland-Clinic-Journal-of-Medicine-2002-Ahmad-801-8.pdf