The Elder Abuse Claim

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Doctors are always at a disadvantage when it comes to administrators and lawyers.  Administrators meet all day, comparing and sharing information, and therefore have all the leverage in any contract negotiations or bureaucratic bombshell they want to drop on us docs.   We are too busy treating patients to arm ourselves with the proper information (or will) to fight back.  Lawyers do the same thing.  They are out there always looking for that edge to, well, screw us.  Recently, as pointed out in the American Medical News, they found a doozy.  A California appeals court has ruled that a physician who allegedly failed to refer a patient to a specialist can be liable for elder abuse.   This is bad.  The repercussions from this will be:

  1. Broadening of the liability for doctors who treat older patients and it exposes doctors to additional legal penalties when negligence claims arise.
  2. To open the door for medical malpractice plaintiffs over the age of 65 to start pleading elder abuse in addition to medical malpractice.
  3. To allow lawyers to circumvent tort reform statutes since elder abuse is not included in such medical liability reforms.

So, why did the lawyers go this route instead of just the normal malpractice professional negligence route?  Because if the decision stands, physicians found liable of elder abuse would be forced to pay jury awards out of pocket because malpractice insurance policies do not cover elder abuse claims.  This will lead to doctors being forced to just settle any lawsuit case instead of risking bankruptcy.

I bet these lawyers are high-fiving themselves over this win.  They won’t be so excited, however, when there aren’t any doctors to see their grandparents in the nursing home anymore.

Douglas Farrago MD

Douglas Farrago MD is a full-time practicing family doc in Forest, Va. He started Forest Direct Primary Care where he takes no insurance and bills patients a monthly fee. He is board certified in the specialty of Family Practice. He is the inventor of a product called the Knee Saver which is currently in the Baseball Hall of Fame. The Knee Saver and its knock-offs are worn by many major league baseball catchers. He is also the inventor of the CryoHelmet used by athletes for head injuries as well as migraine sufferers. Dr. Farrago is the author of four books, two of which are the top two most popular DPC books. From 2001 – 2011, Dr. Farrago was the editor and creator of the Placebo Journal which ran for 10 full years. Described as the Mad Magazine for doctors, he and the Placebo Journal were featured in the Washington Post, US News and World Report, the AP, and the NY Times. Dr. Farrago is also the editor of the blog Authentic Medicine which was born out of concern about where the direction of healthcare is heading and the belief that the wrong people are in charge. This blog has been going daily for more than 15 years Article about Dr. Farrago in Doximity Email Dr. Farrago – [email protected] 

  3 comments for “The Elder Abuse Claim

  1. Dale
    August 28, 2013 at 12:33 pm

    Will they sue the doctors for elder abuse when we all drop medicare?

  2. Pat
    August 23, 2013 at 9:11 am

    I confess I didn’t consider this as a clever way around malpractice caps, but it makes all too much sense. I think back to a deserving senior’s suit against me a decade ago, and this mechanism could have been claimed even in the ER setting. Time for more tests, more consultations, more pissed off specialists hanging up on the ER or refusing to take call, more delays, more expense, more smart primary docs refusing follow-up for Medicare patients, and more elder’s pressuring the gov’t at all levels to force the docs to see them. Another charming addition to the legacy of the so-called “greatest” generation…

  3. Kathy Wire
    August 23, 2013 at 8:14 am

    Note that MICRA (the California cap) doesn’t apply to elder abuse. Plaintiff attorneys have been using this trick against the professional providers in nursing homes for years to evade the $250,000 limit on non-economic damages. When you put that sort of limit on one kind of case, they will try to bring another kind of case, albeit one that’s harder to prove in these circumstances. And the family still has to prove all the elements–this decision just said that, if the allegations (which we don’t know specifically) are true, then the plaintiffs have a right to get to a jury on the issues.

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