Elder Mistreatment Feeds Liability Crisis

Terry Hill, MD

It's not hard to understand why physicians find elder abuse an unattractive topic. We most often grapple with it only in the context of unpleasant realities, bureaucratic agencies, and the courts. Even so, I'd like to suggest that elder mistreatment is a fascinating area worthy of attention from all of us who are students of the human condition and concerned about the plight of our elders. I also suggest that physicians' collective abilities to grapple with the topic will affect our individual abilities to obtain malpractice coverage in the near future, with implications for access to care by a booming elder demographic.

When I entered medical school in the early 1980s, my preceptors were already well-versed in child abuse. A survey of pediatricians in 1990 showed that of those doing clinical work in the previous eight weeks, 53 percent said they had treated or consulted on victims of child abuse. About 80 percent or more had child abuse awareness programs in their communities, had adequate access to consultation regarding child abuse and neglect, and had child abuse protocols in their hospitals.(1)

Elder abuse is arguably as prevalent as child abuse. Yet in my years of internal medicine and geriatric training, I heard scarcely a word about it. The number of Medline citations on child abuse is more than an order of magnitude greater than the citations on elder abuse. The number of peer-reviewed articles based on empirical research in elder mistreatment is fewer than 50.

So if the reality is dismal and the picture this murky, why am I so excited about the subject of elder mistreatment?

Conceptual Framework and Research Road Map

First, the picture is already less murky, thanks to a 500-page summary report just published by the National Research Council (NRC). "Elder Mistreatment: Abuse, Exploitation, and Neglect in an Aging America" successfully argues that researchers need a more nuanced view of these issues than the dichotomous yes/no judgments of culpability required in the legal arena.(2) The opening chapters situate mistreatment of elders and other vulnerable adults within networks of personal relationships recognizable to practicing physicians. Elder mistreatment is a geriatric syndrome with a clinical course that may include remission, exacerbation, or a sustained but stable pattern.

I've already pointed out that we know very little about the risk factors for mistreatment, the trust relationships that go awry, and the harmful outcomes. We have no longitudinal data on mistreatment and little on interventions. Most of what physicians have read about elder mistreatment comes from lawmakers and the forensic community, with a flurry of attention lately to our role as "mandated reporters" of abuse. Only recently have good multiyear case studies appeared from clinical initiatives such as the Mount Sinai Hospital Elder Abuse Program.(3,4) Physicians will recognize the family relationships in these brief longitudinal descriptions, as well as the mixed results of agency and court options within our current response system.

The NRC report offers a road map for all new research and demonstration projects in elder mistreatment and a much-needed corrective to the legal/forensic model that has dominated the field. In defense of the lawmakers, however, I must admit that they've been working in the dark, without data, and often without significant input from the health care community. Conservatively, 3 to 5 percent of the older patients we see-in primary care, emergency rooms and elsewhere-are mistreated each year, yet as physicians we fail to get passing marks in screening or reporting or in offering local or state leadership.

The Liability Connection

What the NRC report does not discuss is the rise in elder abuse lawsuits against health care providers. One of the Legislature's explicit intents in passing California's 1991 Elder Abuse Act was, "to encourage interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults."(5) Although elder abuse cases must meet a higher evidentiary standard than professional negligence cases, they involve generous attorney's fees and punitive damages. The $250,000 MICRA cap does not apply. For instance, in 2001 when an Alameda County jury found a physician guilty of elder abuse for undertreating pain, the award was $1.5 million (Bergman et al v. Eden Medical Center).

There are only skimpy data on elder abuse and other claims against California physicians, on physicians' difficulties getting liability coverage, and on their willingness to serve the elderly. We do know that physicians working in long-term care facilities are particularly at risk. There has been a nationwide rise in civil lawsuits against nursing facilities, and about one-fifth of these claims include physicians.(6) Medical directors of nursing facilities, home care or hospice agencies, and adult day health centers are also at risk because physician malpractice policies do not cover the administrative responsibilities of medical directors. The liability policies of these organizations may or may not name the medical director. Obviously, if they "go bare," as is increasingly the case, their medical directors are bare as well.

We also know that California physicians are facing rising costs for malpractice coverage. More disturbing, it's getting harder for physicians treating the elderly to get any coverage at all. In May 2002 one of the leading "physician-owned" carriers sent a sorry-to-inform-you letter announcing nonrenewal "for doctors whose practice concentrates on treating elderly patients in their homes or in nursing homes. This is due to a recent trend where the application of the Elderly Abuse Law [sic] has negatively impacted health care professionalism."

Criminal Possibilities?

A 1998 California law mandates that physicians report incidents that reasonably appear to involve abuse or neglect, via form SOC 341.(7) Concerns that California physicians would face charges for not reporting as mandated have not materialized, although in April 2002 a nursing facility administrator was convicted of failure to report. Others have been charged with elder abuse itself after innovative investigations by the state attorney general. Twelve employees of an Escondido nursing facility were arrested in January 2004 on felony charges of elder abuse following a sting operation that involved a hidden video camera.

Although precise data from California are lacking, we know that some physicians are turning away from elder care, exasperated by the lawsuits, the struggles for coverage, and the environment of suspicion. Some of the lawsuits are truly frivolous, e.g., a wrongful death suit concerning a man with metastatic cancer who died with hospice care that observers close to the case agreed was appropriate. But even frivolous lawsuits take their toll.

While many of us will learn to cope in this sometimes hostile environment, going without malpractice coverage is an altogether different matter.

Hope and Next Steps

Although I've bemoaned the lack of physician leadership in addressing elder abuse, physicians have been a vital part of the California Medical Training Center, which is promoting effective collaboration among physicians and other health professionals, Adult Protective Services, and law enforcement in identifying and managing elder abuse and neglect.(8)

Multiple counties, including San Francisco, have developed innovative interagency collaborations. The Institute on Aging's Consortium for Elder Abuse Prevention offers an array of resources that can reduce frustration and time burden for physicians struggling with difficult situations. Mary Twomey, the director, is available to confer with physicians at (415)750-4180, ext. 225. San Francisco's Adult Protective Services welcomes physician involvement.(9) The hotline is (415)557-5230.

In several counties, including San Francisco, informed physicians have provided much-needed assistance to local death investigation teams. It is important to clarify that bruises and fractures can occur in the absence of abuse. Those of us with experience in end-of-life care need to help agency investigators learn to distinguish neglect from care that is merely mediocre.

As physicians we need to educate ourselves about elder mistreatment, screen for it and report it, and work with local agencies as they track difficult cases over time. Physicians and other health care professionals can help agencies sustain a broad focus on education and interventions rather than just prosecution or case identification without follow-up. We can support incorporation of elder mistreatment into quality improvement efforts by our health care organizations, as suggested by the NRC report. We can also support rigorous evaluations of elder mistreatment programs.

We need to acknowledge that elder mistreatment occurs in nursing facilities and other health care organizations serving vulnerable elder and younger adults. We need to acknowledge that physicians are sometimes complicit in tolerating or even participating in mistreatment. And we need to pursue efforts to eliminate mistreatment throughout the continuum of long-term care. Without these efforts, we continue to be at risk for, and complicit in, the inappropriate criminalization of medical practice.

At the same time, we need to intervene at the state level to ensure that we can serve elders and still maintain affordable liability coverage. A new law, created by SB 686 (2003, Ortiz, D-Sac), authorizes the state Insurance Commissioner to develop a market assistance program, if needed, so that long-term care facilities and physicians can secure liability insurance. It also requires insurers to tell the state 90 days before they stop offering policies to physicians working in long-term care. The amendments addressing physicians were sponsored and lobbied for by the California Association of Long-Term Care Medicine. The Legislature and Insurance Commissioner need to hear from physicians about barriers to good care and the causes of bad care that derive from this liability crisis. Given how much is at stake, the preconditions necessary for our elders to receive high-quality, accessible health care must be communicated to those making policy.

Dr. Hill is medical director of Laguna Honda Hospital and an assistant clinical professor in the UCSF Department of Medicine. He is president of the California Association of Long-Term Care Medicine and cochair of the California Coalition for Compassionate Care.

References

1. See www.aap.org/research/periodicsurvey.
2. National Research Council. Elder Mistreatment: Abuse, Exploitation, and Neglect in an Aging America. Washington, DC.: National Academies Press, 2003. Available online at www.nap.edu.
3. Kahan FS et al. Mt Sinai J Med. 2003 Jan; 70:62-8.
4. Carney MT et al. Mt Sinai J Med. 2003 Mar; 70:69-74.
5. California Welfare and Institutions Code §15600.
6. Stevenson DG et al. Health Aff. 2003 Mar-2003 Apr 30; 22(2):219-29.
7. See www.dss.cahwnet.gov.
8. See www.ucdmc.ucdavis.edu/medtrng.
9. Counihan M. San Francisco Medicine, Nov/Dec 2000. See www.sfms.org/sfm/sfm1100.htm.