Why the nation's toughest elder abuse laws make some California physicians nervous
From the March ACP-ASIM Observer, copyright © 2003 by the American College of Physicians-American Society of Internal Medicine.
By Phyllis Maguire
With physicians around the country engulfed in a growing malpractice insurance crisis, many look with envy at their colleagues in California. Because the Golden State has the best tort protections in the nation, physicians often assume that doctors on the West Coast practice in a paradise free from litigation.
But physicians in California tell a different story. While they pay lower malpractice premiums than physicians in many other states, they say they're facing a disturbing trend that threatens to erode their hard-won legal protections.
The problem arises from the state's elder abuse laws, which are among the country's most comprehensive. The state requires physicians to look for and report abuse when treating patients 65 and older. Physicians who ignore signs of abuse and fail to file a report can be slapped with a misdemeanor charge.
Some physicians say they feel pressured to file at the slightest sign of trouble—even when they're sure no abuse has taken place. Others worry that new reporting paperwork—including a five-page form officials will introduce this spring—will continue to pit them against patients' families and patients themselves.
But analysts say that physicians' real problems with the state's elder abuse laws have only begun. While officials are not prosecuting physicians for failing to report, some physicians—particularly those who work in nursing homes and other long-term care facilities—run the risk of being charged with elder abuse, which is a felony.
Experts say that attorneys frustrated by the state's caps on noneconomic damages have discovered they can pressure physicians to settle even frivolous malpractice claims by threatening to bring elder abuse charges against them. If physicians don't settle to avoid the charges and are found liable for elder abuse, medical malpractice protections no longer apply—allowing attorneys to pursue much larger awards and circumvent the state's limits on malpractice settlements.
While the practice is not yet widespread, physicians worry that attorneys are increasingly resorting to elder abuse charges as a way to either boost their number of malpractice settlements or fatten up awards. And while California may be a long way from where you practice, states across the country are passing tougher elder abuse statutes—meaning that physicians everywhere may soon be vulnerable to similar tactics.
Tough reporting requirements
All the physicians interviewed for this article said they believe it is their obligation to report suspected abuse of elderly patients, and for good reason.
Experts point out that elder abuse is grossly underreported nationwide. In 1996, for instance, the federal Agency on Aging estimated that more than 550,000 seniors experience some form of abuse every year in domestic settings alone, and that only one in five cases gets reported.
In the past decade, many states have passed tougher laws to protect seniors. But when California passed new statutes in 1998, it took the lead among states with the country's most comprehensive mandatory reporting and protection package.
California already required physicians and other licensed health care professionals to report suspected physical abuse, a category that covers sexual and medication abuse. The 1998 laws, however, expanded the types of abuse physicians must report to include abandonment, isolation, financial abuse and neglect.
The statutes also broadened the definition of who must report abuse to include anyone with a caretaking role, even if it's part time or unpaid. Home health care workers, for instance, must now report suspected abuse.
Some physicians say the newly expanded requirements can be useful. Mary P. Harward, FACP, for instance, a general internist in Orange, Calif., who treats many Medicare patients, said she uses the broader reporting laws to convince families that an elderly relative can no longer live independently and instead needs around-the-clock supervision.
"Sometimes with dementia patients, the family refuses to acknowledge the severity of the illness," Dr. Harward said. "I point out that there are reporting laws I have to use if they won't comply with my recommendations for 24-hour supervision, which helps them understand that the diagnosis is significant."
Taking an adversarial role
Other physicians say, however, that the new reporting requirements can be onerous, even if they are well-intentioned. Physicians have trouble detecting abuse in a 15-minute visit, they say, particularly in more amorphous forms like isolation and neglect. They find it hard to assess, for instance, whether an elderly patient with falls and fractures is being deliberately injured or suffering from a minor neurologic impairment, a balance disorder or the effects of anticoagulation.
It's even tougher to assess patients who have dementia or depression. "Their perceptions of abuse can differ from reality," said John A. LaFata, FACP, a general internist in San Diego County and chair of the Health and Public Policy Committee of the College's Southern California Region III Chapter. "There are a lot of unhappy elderly people who don't want to be infirm and taken care of, but are they all victims of emotional abuse?"
In some cases, the state's reporting requirements have led to heated arguments among caregivers about what constitutes abuse. Former College Regent Paul F. Speckart, FACP, a San Diego general internist, recalled one husband who cared for his incapacitated wife. Both patients were in their 80s.
"He didn't quite do a good enough job, and she developed a bit of a skin ulcer," Dr. Speckart said. When a new visiting nurse insisted on reporting the husband for elder abuse, a shouting match ensued between Dr. Speckart on one side and the nurse, her supervisors and the home health agency on the other.
While he eventually convinced them that the man was not abusive, he said it was a close call. "Mama would have been placed in a nursing home for the last three months of her life, while Father would have faced criminal charges," Dr. Speckart pointed out. "To me, it was a case of a good law being wrongly applied."
Sometimes, physicians say that reporting requirements have forced them to take an adversarial role with patients unnecessarily. Dr. LaFata, for instance, filed a report on one elderly gentleman who was taking "superbly good care" of his ailing wife at home.
"I sat down and explained to him that I didn't think he was abusing his wife," Dr. LaFata said, "but I was worried that if she fell and someone else suspected abuse, I could be held liable for not reporting."
The county agency that investigates reports found no abuse, and the woman remained at home until her death, with Dr. LaFata continuing to treat both her and her husband. But he viewed the incident as an example of an increasingly common occurrence where reporting requirements "antagonize the physician-patient relationship."
New form, more scrutiny?
While some physicians say they feel undue pressure to report abuse, no office-based physicians have been prosecuted for failing to report abuse. Investigating the issue last fall, the California Medical Association found no evidence that county or state prosecutors were going after individual physicians.
In part, that's because the state has focused its elder abuse investigations on long-term care institutions like nursing homes. The state bureau that prosecutes facilities for elder abuse filed only one criminal complaint against a long-term care facility in 1993. In 2001, by comparison, the bureau filed more than 130 complaints.
But officials do want to improve physicians' reporting track record. County officials and social services personnel are now working with physicians throughout the state to train them to recognize and report abuse. Those training efforts are likely to increase as the state ups the ante on physicians' role in elder abuse reporting.
This spring, all physicians in California will receive a new five-page elder abuse forensic medical examination report form they must complete for patients in whom they suspect abuse. (Until now, physicians have typically phoned in suspicions, then filed a one-page form.)
According to Diana B. Koin, ACP-ASIM Member, a practicing geriatrician who helped develop the state form, the new reporting form will help protect both patients and physicians. If they are asked to testify in court in elder abuse cases, for instance, physicians who have completed the form will show they conducted a thorough exam—one that will protect them against failure-to-report claims or even elder abuse charges, Dr. Koin said.
But Faith T. Fitzgerald, MACP, program director for the internal medicine department at the University of California, Davis, and a former Governor for the College's Northern California Chapter, said she worries that the new form puts physicians in the role of investigator, not clinician. "An incomplete form could make you subject to legal scrutiny by defense attorneys," she said, "with the implication that you are sloppy or even neglectful if the form isn't complete."
Susan Penney, JD, legal counsel for the California Medical Association, predicted that the state won't go after physicians in those types of circumstances. Physicians and other health professionals required to report abuse have immunity from making false reports, she pointed out—adding that she believes the protection will be extended to reports with inadvertent errors or omissions.
But, Ms. Penney continued, legislators who mandate forms don't have the big picture of how much paperwork already threatens to overwhelm medical practice. "It's a long form," she said of the new forensic report form. "The hassle factor objection is valid."
Playing the malpractice angle
While physicians worry about abuse reporting, analysts say a much bigger threat is looming. Instead of facing a misdemeanor charge for not reporting abuse, some physicians may face charges of actually abusing seniors.
In a landmark case in 2001, for instance, a California court found an internist liable for elder abuse when he failed—according to the jury—to provide adequate pain management to a hospitalized elderly patient. (See "Elder abuse ruling gives physicians strong message about documenting pain treatment.")
While the case made national headlines, it was one of only a few instances in which a doctor outside of a long-term care facility was charged with elder abuse. Most charges in California are brought against nursing homes, their administrators and the physicians who serve as medical directors.
"The allegations of elder abuse arise from direct patient treatment," explained Ms. Penney. "Plaintiffs' attorneys allege that physicians are not watching bedsores, transferring when appropriate or making sure patients get adequate nutrition."
Richard E. Anderson, FACP, chairman of The Doctors Company, a national physicians' liability carrier, said that California's elder abuse laws have "made nursing homes just this side of uninsurable."
(The Doctors Company offers premium discounts to College members. For more information, call 800-352-0320.)
Not too long ago, he pointed out, attorneys would have taken no interest in an 85-year-old patient who developed a decubitus ulcer, for example. Even if a physician or facility was found negligent, he explained, any award would have been too small to pursue. Economic damages would have been negligible, while the state's tort laws limit noneconomic damages (to $250,000) and attorneys' fees.
But when attorneys bring charges of elder abuse—arguing that physicians acted with recklessness, malice, oppression or fraud in addition to negligence—awards or settlements may not be protected by California's malpractice protections. Awards can be much higher and granted after the patient has died, and attorneys' fees are not subject to the usual caps.
"Attorneys are trying to 'medicalize' elder abuse, or 'elder abusify' medical treatment," said Frank Randolph, MD, a geriatrician in Colton, Calif., and president of the San Bernardino County Medical Society. Dr. Randolph, who often serves as an expert reviewing elder abuse allegations, said he has reviewed five different elder abuse claims against nursing home physicians and facilities for attorneys in the past year.
While he thought none of the claims had merit, one facility and one medical director decided to settle. "Physicians are afraid not to settle because they think their malpractice carrier will drop them if the charge becomes a criminal one," he said.
The toll on physicians and patients
While attorneys may be focusing on nursing homes and long-term care facilities, the trend is already affecting individual physicians. The state's supply of nursing home medical directors, for example, is being threatened.
While many geriatric fellowship programs now include medical director training, physicians say that many of "the best and brightest" geriatric fellows are shying away from taking medical director positions—particularly when some nursing homes are no longer willing to pay for administrative liability policies for medical directors.
And with attorneys targeting nursing homes, more physicians are simply unwilling to treat patients in long-term care. Dr. Harward, for example, said that her own nursing home referrals have increased because fewer physicians are accepting patients in nursing homes.
San Diego's Dr. LaFata is one physician who limits his practice with long-term care patients. While he continues to follow established patients into facilities, he no longer takes on any new nursing home patients.
The mere threat of a felony elder abuse charge often serves as a 'hammer' to force physicians to settle baseless claims.
And some attorneys are using the threat of elder abuse charges against all physicians in malpractice suits, according to Dr. Anderson of The Doctors Company. The mere threat of a felony elder abuse charge, he said, often serves as a "hammer" to force physicians to settle baseless claims.
"The allegations impose a very heavy burden on physicians to fight the underlying malpractice action," Dr. Anderson said. "A physician who is not guilty at all of malpractice may feel so personally exposed that he or she now asks—or demands—that the insurance company settle the underlying action."
While Dr. Anderson's company sees less than a dozen cases a year where physicians are actually charged with elder abuse, he said that in "virtually every case" involving a patient who is a senior citizen, attorneys allege elder abuse has occurred. Typically, plaintiffs drop those charges, he added—but only after the physician agrees to settle the case.
With the state's elder abuse laws putting so much heat on them, California physicians feel they're being singled out in the effort to keep the state's seniors from being hurt. However, the reality is that other professions are also being held accountable.
Beginning this year, for example, the state now requires clergy to report suspected elder abuse. And while banking officials defeated legislation that would have required them to report suspected financial abuse of seniors, some now voluntarily work with law enforcement officials to train employees to recognize potential abuse. (Attorneys in California are not required to report elder abuse.)
Even if other professions are required to report elder abuse, physicians will still feel the impact of elder abuse reporting requirements and potential charges. Dr. Harward, the general internist in Orange who treats nursing home patients, wondered who will care for very vulnerable elderly patients if the risk of elder abuse allegations keeps scaring physicians away from the field.
"Both physicians and patients are frustrated with the current Medicare system—patients because of its complexity and lack of prescription drug coverage, and physicians because of limited reimbursements," Dr. Harward said. "The added fear of an elder abuse report by either party can further damage an already difficult relationship and encourage more physicians to give up their care of frail seniors."
While physicians in California enjoy well-known liability protections, they also have a unique CME requirement. In order to maintain their license, most physicians (excluding pathologists and radiologists) must now complete a one-time 12-credit CME unit on pain management and the care of the terminally ill.
The new CME unit is the result of a landmark case brought against an internist. The physician was charged in 2000 with elder abuse for allegedly providing inadequate pain treatment to a terminally ill, hospitalized elderly patient.
The abuse charges, which were brought by the patient's family after he died, baffled the physician's attorney, Robert Slattery, JD, of McNamara, Dodge, Ney, Beatty, Slattery & Pfalzer, LLP, in Walnut Creek, Calif. The state medical board had found no standard of care deviations in the internist's decision to not prescribe morphine because "he wanted to avoid suppression of [the patient's] respiratory response," Mr. Slattery said.
Experts who testified at the trial supported the physician's treatment decisions. In addition, Mr. Slattery said that although complaints were made to the nursing staff, family members admitted that neither they nor the patient had complained to the physician that the patient's pain was not being adequately addressed.
Nevertheless, the jury found that the internist was liable for reckless elder abuse. The final ruling, however, illustrates how California's elder abuse laws interact with the state's 1975 Medical Injury Compensation Reform Act (MICRA) tort protections.
The jury first awarded the patient's family $1.5 million for pain and suffering. But the judge reduced that amount to $250,000 under the MICRA limit on noneconomic damages.
The judge did decide, however, that pursuant to the elder abuse statute, attorneys' fees were recoverable. The judge awarded more than $500,000 in attorneys' fees.
According to Mr. Slattery, the ruling may have encouraged other families to follow suit. "There are a number of cases currently pending in northern California that involve similar allegations," he said.
And, he continued, the case gives physicians the following take-home message: Extensively document all of your pain management efforts. Medical records should demonstrate that you specifically addressed the issue of pain every time you met with patients and their families. And records must also include, he continued, the patients' response each and every time you ask about pain.
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