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At Your Defense: Respect (and Protect) Your Elders

Reyes, Carlo MD, JD

doi: 10.1097/01.EEM.0000480796.82576.d1
At Your Defense

Dr. Reyesis the vice chief of staff and the assistant medical director of emergency medicine at Los Robles Hospital in Thousand Oaks, CA. He is also a clinical professor in emergency medicine and pediatrics at Olive View/UCLA Medical Center, a health law attorney with Boyce Schaeffer Mainieri, LLP, in Oxnard, CA, and the founder and CEO of Health-e-MedRecord, a patient-centered and emergency physician-designed EHR solution. (www.health-e-medrecord.com.) Read his past articles athttp://emn.online/DefenseEMN.

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I rarely saw a 90-year-old when I started practicing medicine 14 years ago, but recently I saw a 103-year-old and two 95-year-olds. On the same shift.

The 2010 census revealed that the number of Americans 85 and older is growing at three times the rate of the general population. Geriatric emergency medicine has emerged to address two seemingly opposing forces: the clinical demands of geriatrics with the regulatory demands of ED metrics. It is no coincidence, in fact, that reducing hospital readmissions is a shared focus cited by the federal government and the recently published geriatric emergency medicine guidelines. Emergency medicine pushes us to work efficiently (read, “faster”), but EPs must still resist the impulse to take ill-advised shortcuts that lead to errors in medical judgment.

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Barriers to Accuracy

It is challenging for physicians to obtain an accurate history from an elderly patient impaired by underlying dementia or acute encephalopathy. Similar to evaluating a nonverbal pediatric patient, clinicians must rely on a bystander's perception of what the patient is experiencing. We must put our best clinical foot forward, despite an incomplete history comprised of an outdated medication list, an ambiguous POLST form, and a collection of scribbled notes from a paper nursing home record. If I had a dime every time a primary care physician called ahead to inform me his patient was being sent over, I might have 10 cents per shift.

Getting the most pertinent historical information can be the difference between a quick, noninvasive evaluation and the million-dollar workup. Clinical information provided too late is just that — too late — whether it's intubating a patient later found to be “comfort measures only” or initiating an altered mental status workup in a dementia patient unchanged from baseline. This makes it imperative for EPs to be proactive obtaining a history, including calling caregivers and family members at the beginning of the visit instead of waiting for them to arrive. And documenting this in the chart demonstrates thoroughness and a high level of care. Physicians should also review the hospital's prior records and call the patient's primary care physician, which will help provide a more accurate clinical picture.

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Special Protections

The elderly are a protected population because they cannot protect themselves. Child and elder abuse laws are state laws that confer to physicians a mandatory duty to report the suspicion of abuse or neglect of a family member or caregiver. Unfortunately, only one of every 14 elder abuse cases is reported. This statistic may represent a clinician's inability to recognize signs of elder abuse and neglect, rather than a conscious disregard of abuse, which may be punishable as a misdemeanor in some states.

Plaintiff attorneys are appealing to these special legal protections for the elderly to increase calculations for damages in medical malpractice cases. As medical negligence and elder abuse considerations intersect in elder care litigation, clinician behavior may be characterized as a negligent failure to meet the standard of care or as a reckless, oppressive, fraudulent, or malicious elder abuse, a behavior more culpable than negligence that triggers damages of a more punitive nature.

A defendant could seek noneconomic damages for pain and suffering and legal fees if a plaintiff attorney in California convinces a court that an EP's treatment of an elderly patient was reckless. (Welfare & Institutions Code §§15600 et seq.) Remedies under California's Elder Abuse Act is not limited by the $250,000 noneconomic damages cap that is customarily imposed by the Medical Injury Compensation Reform Act for medical malpractice cases.

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Do No Harm

As the elderly population grows, we should anticipate the evolving application of elder abuse laws in medical malpractice litigation. We clinicians acknowledge that the elder abuse laws impute a duty to health care providers to report suspicion of elder abuse and neglect. It is simple to conceptualize this statutory duty to protect the elderly from abuse, but much more difficult to become adept at elder abuse reporting.

Ironically, clinicians are also subject to the elder abuse laws, despite being in a unique position to treat and protect the elderly. Our disdain may arise from the notion that a plaintiff attorney can plead elder abuse in a medical malpractice claim to increase a plaintiff's damages award or to gain leverage in negotiating a settlement. As EPs, however, we are in a privileged position to protect the elderly who cannot protect themselves. If an EP's treatment of an elderly patient approaches a recklessness and conscious disregard for an elderly patient's well-being, the elder abuse statutes should apply. Heeding this should not be difficult for any provider who has sworn first to do no harm.

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