The Elder Abuse Claim
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:
- Broadening of the liability for doctors who treat older patients and it exposes doctors to additional legal penalties when negligence claims arise.
- To open the door for medical malpractice plaintiffs over the age of 65 to start pleading elder abuse in addition to medical malpractice.
- 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.
Will they sue the doctors for elder abuse when we all drop medicare?
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…
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.