Nurse Neglect

The United States Department of Health and Human Services and its National Center on Elder Abuse (NCEA) have defined elder neglect as a denial or failure to adhere to providing the basic requisite needs of dependent under a nurse’s care, including the legal obligation to provide a patient’s food, immediate healthcare needs, protection, and ample shelter for these vulnerable individuals.

This broad definition applies to all persons, including nurses, who are in a caregiver relationship with an elderly individual. When a nurse, whether in a hospital, elder care facility, or another environment in which nursing care is provided to the elderly, neglects to provide basic needs for an elderly individual, that nurse may be liable for elder abuse.

Causes of Action in Nurse Neglect Claims Cases

 While as individual the relative standards of what constitutes neglect are vague, medical communities have strict standards on the professional obligations owed by nurses to all patients, not only including elderly care patients. Comparable to other claims cases, patients must prove a given act of neglect was the proximate cause of damages sustained by the patient.

A cause of action for nurse neglect raises two issues:

• Under what circumstances did a given instance of alleged nurse neglect occur?
• What individual or other party is responsible for damages caused by nurse neglect?

The answers to both questions are found in analogies to causes of action for nursing professional negligence, as largely neglect depicts a refusal to render aid, while malpractice may include the failure to deliver assistance or the negligent delivery of medical support causing damages the elderly patient

Examples of Clear Nurse Neglect from Prior Case History in Elder Law

As with professional negligence, nurse neglect may be deemed to occur under the following circumstances:

• When a nurse, while exercising professional judgment, observes a condition that needs to be addressed but says or does nothing. For example, a nurse may notice that a bedridden elderly patient has not eaten for a period of days, leading to severe malnutrition. Failure to note this condition or to raise it with other caregivers is an example of nurse neglect.
• If a nurse causes an injury to an elderly patient, for example, by failing to take precautions against harm from equipment, the nurse may be liable for both professional negligence and neglect. Vulnerable elderly patients may not have the dexterity to extricate themselves from entanglements with equipment cords or wires. Nurses need to remain cognizant of this heightened risk when dealing with elderly patients.
• A nurse may fail to administer medication or may distribute medications accurately. Elderly patients may have difficulty swallowing oral medications, or their vein structures may be compromised such that intravenous medications are not being infused properly. Nurses need to remain aware of extra precautions that may be required when providing services for elderly individuals.

In all cases, the lynchpin is whether the nurse performed in agreement with a heightened standard of care that is required when providing services for a vulnerable elderly patient.

Which party is responsible for damages caused by nurse neglect?

Standard agency law principles will apply to determine whether or not the nurse’s employer (i.e. a hospital, physician’s practice group or elder care facility) is liable for damages caused by nurse neglect. A hospital or nursing home will be legally and financially responsible if the nurse was an employee of the hospital, he or she was fulfilling a job duty when the elderly patient suffered an injury as a result of nurse neglect, and the nurse’s actions were not under the direction or control of an independent doctor or another care provider who was directly employed by the hospital or care facility.  Further, a physician may be financially and legally liable for those damages if the doctor was present while the nurse neglect occurred, and that doctor could have taken action to prevent injuries caused by the nurse neglect.

An argument may arise as to whether an independent physician or a hospital or care facility is liable for damages to an elderly patient who is injured by nurse neglect. If the facts warrant a conclusion that the patient’s injuries were caused by nurse neglect, the argument as to whether the physician or the hospital is responsible will not affect the patient’s right to recover damages. A cause of action for nurse neglect is another tool that an elder law negligence attorney can use to recover compensation for an elderly client whose injuries were caused by nurse neglect.

References:

http://www.aoa.acl.gov/AoA_Programs/Elder_Rights/EA_Prevention/WhatToDo.aspx

http://www.hhs.gov/asl/testify/t980728b.html

http://oig.hhs.gov/oei/reports/oei-07-13-00010.pdf

http://www.mass.edu/mcncps/orientation/m1abuse.asp

https://www.fbi.gov/news/stories/2012/may/nursing-home_050812