The United States Department of Health and Human Services and its National Center on Elder Abuse (NCEA) have defined elder neglect as a denial or failure to adhere to providing the basic requisite needs of dependent under a nurse’s care, including the legal obligation to provide a patient’s food, immediate healthcare needs, protection, and ample shelter for these vulnerable individuals.
This broad definition applies to all persons, including nurses, who are in a caregiver relationship with an elderly individual. When a nurse, whether in a hospital, elder care facility, or another environment in which nursing care is provided to the elderly, neglects to provide basic needs for an elderly individual, that nurse may be liable for elder abuse.
While as individual the relative standards of what constitutes neglect are vague, medical communities have strict standards on the professional obligations owed by nurses to all patients, not only including elderly care patients. Comparable to other claims cases, patients must prove a given act of neglect was the proximate cause of damages sustained by the patient.
The answers to both questions are found in analogies to causes of action for nursing professional negligence, as largely neglect depicts a refusal to render aid, while malpractice may include the failure to deliver assistance or the negligent delivery of medical support causing damages the elderly patient
As with professional negligence, nurse neglect may be deemed to occur under the following circumstances:
In all cases, the lynchpin is whether the nurse performed in agreement with a heightened standard of care that is required when providing services for a vulnerable elderly patient.
Standard agency law principles will apply to determine whether or not the nurse’s employer (i.e. a hospital, physician’s practice group or elder care facility) is liable for damages caused by nurse neglect. A hospital or nursing home will be legally and financially responsible if the nurse was an employee of the hospital, he or she was fulfilling a job duty when the elderly patient suffered an injury as a result of nurse neglect, and the nurse’s actions were not under the direction or control of an independent doctor or another care provider who was directly employed by the hospital or care facility. Further, a physician may be financially and legally liable for those damages if the doctor was present while the nurse neglect occurred, and that doctor could have taken action to prevent injuries caused by the nurse neglect.
An argument may arise as to whether an independent physician or a hospital or care facility is liable for damages to an elderly patient who is injured by nurse neglect. If the facts warrant a conclusion that the patient’s injuries were caused by nurse neglect, the argument as to whether the physician or the hospital is responsible will not affect the patient’s right to recover damages. A cause of action for nurse neglect is another tool that an elder law negligence attorney can use to recover compensation for an elderly client whose injuries were caused by nurse neglect.
References:
http://www.aoa.acl.gov/AoA_Programs/Elder_Rights/EA_Prevention/WhatToDo.aspx
http://www.hhs.gov/asl/testify/t980728b.html
http://oig.hhs.gov/oei/reports/oei-07-13-00010.pdf
http://www.mass.edu/mcncps/orientation/m1abuse.asp
https://www.fbi.gov/news/stories/2012/may/nursing-home_050812