Incapacitated elderly patients require a significant amount of time and patience to treat. Often elderly patients cannot report to their doctors their medical history or current symptoms accurately. There are also times when they will also not understand the recommendations of medical professionals and will likely not be able to follow the treatment regimen or take the medications they have been prescribed.
When treating elderly patients, potential claims for medical malpractice can include:
- Failure to diagnose – diagnosis is difficult when the patient cannot provide their medical history, relay his or her symptoms, or even remember why he or she made the doctor appointment.
- Failure to follow up – elderly patients require more follow up. He or she may not be able to follow the doctor’s orders, fill their prescriptions, remember to that their medications, understand the doctor’s health recommendations such as diet and exercise, or even remember their next appointment. This places even greater responsibility on doctors to follow up with their elderly patients.
- Lack of informed consent – consent will be difficult, or potentially impossible to obtain, if the patient does not have capacity to give it.
For legal purposes capacity can be defined as “the ability to understand the risks, benefits, and alternatives to the recommended treatment.” All adults, including the elderly, with sufficient “capacity” can consent or refuse treatment. When a person does not understand the risks, benefits, and alternatives to a course of treatment, they cannot give their informed consent.
Under the law in New York, nursing home patients have the right to clinical care and treatment. This includes the right to:
- Adequate and appropriate medical care.
- Be informed fully of his or her total health status (including diagnosis, prognosis, and treatment plan).
- Refuse to participate in research that is experimental.
- Refuse medication and treatment.
- Be informed fully prior to care and treatment.
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