Elder abuse litigation and the duty to provide palliative care

Physician Executive, Nov-Dec, 2004 by Timothy McIntire

Society's debate concerning physician-assisted suicide exposed the problem of inadequate pain management for the elderly and the terminally ill. Specifically, studies since the early 1990s highlighted the problem of the under-medication in elderly and terminally ill patients. (1)

The dynamic tension between inadequately medicating patients suffering from chronic pain and the need to control illegal narcotic availability has put pain management in the forefront of medicine and law. Interestingly, confusion defining a pain management standard of care has attorneys wondering whether claims against physicians for the under-treatment of chronic pain should arise in the new theories of elder abuse statutes or should simply be an extension of the more traditional medical malpractice negligence suits.

Although not often discussed in the legal literature, medical quality of care issues often influence the establishment and maintenance of the legal standard of care physicians owe their patients.

Historically, half of the patients who die from cancer suffer similar symptoms, including pain, labored breathing, distress, nausea, confusion and other physical and psychological conditions that go untreated or under-treated. (2)

Physicians should realize that attorneys dealing in the under-treatment of pain strive to be able to understand medical quality of care issues and how they affect the legal standard of care surrounding the treatment of intractable pain in the elderly.

Elder abuse may be defined in terms of abuse or neglect. As such, a typical state statute concerning elder abuse and neglect may define these terms in two main ways.

* First, some states characterize elder abuse as either a willful act that is likely to cause physical, mental or emotional harm to an elderly adult, or as the failure to provide the services necessary, including health care services, which a prudent caregiver would provide to an elderly adult in similar circumstances. (3)

* Second, states may also define elder abuse as the willful physical abuse or gross neglect of an "impaired adult" with resulting serious mental or physical harm that may be punishable as an aggravated assault. (4)

Physicians and attorneys alike should note that the liability for elder abuse often involves the acts of a care-taker. As such, many statutes define a caretaker as "an individual or institution who has the responsibility for the care of an adult as a result of family relationship, or who has assumed the responsibility for the care of the adult person voluntarily, or by contract, or agreement." (5)

So it is not inconceivable that, in light of a broad statutory definition of a caretaker, many states might include physicians as caretakers in the eyes of the law. In this regard, a physician caretaker who provided inadequate pain management to an impaired adult, that in turn caused serious physical harm to that adult, could be held accountable under both the civil elder abuse laws and the criminal statutes of aggravated assault.

Elder abuse statutes: Are they all alike?

Not surprisingly, all elder abuse statutes are not created equally. A survey of specific state statutes and case law may be helpful in analyzing a potential elder abuse action.

For example, in Arkansas, abuse of an adult includes "any willful or negligent act which results in neglect ... unreasonable physical injury ... and failure to provide necessary medical treatment ... or medical services." (6) Further, the adult abuse statutes declare that it is specifically unlawful for "any person or a caregiver to abuse or neglect" an adult."

Conversely, while Tennessee recognizes many of the typical elder abuse statutes found in other jurisdictions, a monetary recovery of damages against a physician when a Tennessee elder abuse statute is violated is often limited through the use of a traditional medical malpractice claim. (8)

This does not, however, preclude the victim of elder abuse from holding her physician responsible for his acts under the elder abuse statutes. For example, other than the civil money damages that can only be obtained via the medical malpractice statutes, there are two important avenues available to Tennessee clients in addressing complaints against their physicians:

* Criminal remedies

* State Board of Medical Examiners remedies (which may limit or revoke the physician's license to practice medicine) (9)

As claims arising from the lack of palliative care grounded in elder abuse statutes continue to increase, the likelihood of claims involving traditional elder abuse statutes and criminal sanctions also will increase in all states.

For the protection of physicians and clients alike, many states adopted specific palliative care and intractable pain management statutes or regulations. (10) While the need to limit patient narcotic abuse is still present, many states realize this need must be balanced with guidelines for the treatment of the elderly and the terminally ill suffering from intractable pain. As such, many states emphasize concerns involving narcotics in both the addiction aspect and the treatment of pain in the elderly and the terminally ill. (10)