Reduce liability risk when treating elderly patients

January 4, 2008

Experts tell how to avoid accusations of failure to diagnose, failure to follow up, negligence, and abuse.

Key Points

As a physician, you assume a certain amount of risk every time you go to work. Not the physical kind, like police officers or fire fighters face, but the economic kind-risk that you won't get paid for your services or, worse, that you'll be named in a costly and career-threatening malpractice suit. If you're a primary care physician, avoiding liability is especially tricky because you see an eclectic group of patients, each presenting a different set of legal hazards. In the following article-the first of a four-part series-we discuss risks specific to the elderly and how to avoid them. Future articles will focus on liability pitfalls when treating children and adolescents, people with physical and mental handicaps, and patients with limited or no English proficiency.

A while back, a patient of gerontologist and FP Richard E. Waltman went to an urgent care center for treatment of cellulitis. "He was seen and given a prescription but no one bothered to assess his competence," says Waltman, who practices in Tacoma, WA. "His wife was in the waiting room, but was never brought in. This mildly demented gentleman put his prescription in his pocket and never filled it."

In failing to assess the patient's competence or suggest that a family member be present for the discussion of diagnosis and treatment, the urgent care doctors compromised the patient's health. They also put themselves at risk for a "failure to monitor care" lawsuit.

"Since elderly patients tend to have multiple medical problems and take multiple medications, caring for them can be challenging, especially given the time constraints imposed on physicians," says Suzanne A. Fidler, an internist and attorney in Newport Beach, CA. "Lawsuits tend to occur with misdiagnosis, failure to follow up, and adverse drug interactions. Also, because the elderly are prone to falls, aspiration, malnutrition, dehydration, and skin tears, these situations may generate both negligence and elder abuse litigation."

Unless you're a pediatrician or an ob/gyn, chances are that a good chunk of your patient population is approaching senior citizenship or already in the 65-and-over range. And, with the graying of the massive baby boom cohort, the ranks of elderly patients are sure to grow. Here's how to limit their risks-and yours.

Track mental capacity over time

In working with the elderly, remember this cardinal rule: Never proceed with treatment discussions or recommendations without first determining whether the person understands the risks and benefits of-and alternatives to-those treatments, and the consequences of refusing treatment.

"Every physician, not just primary care doctors, should assess older patients' mental capacity when doing an initial examination," says Waltman. "I'd be very reluctant to sign a patient up for hip replacement without understanding her competence level."

Unlike, say, a broken leg, mental capacity is a continuum. Mild to moderate cognitive impairment can be significant in the "young elderly"-that is, people in their mid-60s-and worsens as they age. In addition to doing a mental status assessment when you examine a senior citizen for the first time, Waltman recommends repeating the tests yearly-or more often if you or a member of the patient's family perceives a change. Put the results in the patient's record.

Start cognitive assessments with some easy banter, which will help you determine if the patient is oriented and able to follow questions, says Sharon Packer, a psychiatrist in New York City. You'll get a better idea of the patient's mental state if the questions are specific. "Did you watch the game last night?" is easily answered Yes by someone who doesn't understand the question. Better to follow that up with, "Who won? What was the score?"