Medical Malpractice or Elder Abuse?
Sometimes it becomes necessary to place our elders with people who know how to handle their increasingly complex needs. However, sometimes this does lead to negative consequences. Medical malpractice can occur if someone is not well trained or is out of their proverbial depth in caring for elderly people, but sometimes workers are well trained and deliberately engage in a pattern of neglect. It can be an important point of contention as to which cause of action your loved one’s experience may fall under.Definitions and Laws
Medical malpractice is based in negligence law, and is designed to address those who negligently fail to uphold a certain standard of care demanded of medical professionals in treatment of patients. California has slightly modified its legal definition to include more conduct; it specifies that “treatment” of patients is not just writing prescriptions or having office visits, but can include, for example, diagnosis or misdiagnosis. In terms of damages awarded after a successful suit, damages are restricted by caps on non-economic damages (non-economic damages are paid for intangible harms like pain and suffering, inconvenience, and loss of consortium) but no caps on actual or punitive damages exist in medical malpractice cases.
Elder abuse, by comparison, can be both a crime and a civil infraction, especially if it leads to long-term consequences for the person affected. It is generally defined as the willful abuse or neglect of a vulnerable elderly person (abuse and neglect by omission qualifies). Unlike malpractice, elder abuse is a conscious choice. In California, the Elder Abuse & Dependent Adult Civil Protection Act specifies what constitutes abuse, with appropriate consequences for each action; this act has set forth some of the most stringent penalties in the nation for elder abuse and neglect.How to Differentiate?
It is not always easy to tell when an event is a tragic medical accident or a lazy lapse by a professional who should have known better. Very often, the two causes of action do overlap, and it is becoming more common for victims to bring suit alleging both medical malpractice or negligence, and nursing home or elder abuse.
To be able to file a medical malpractice claim, you must be able to show that the medical professional owed a reasonable standard of care to you as the patient, and that that reasonable standard was breached, with it being the direct cause of your injury. An elder abuse claim requires proving either malice or negligence so egregious that it can be characterized as reckless. However, even though caregivers generally do owe their patients a duty of care under the law, it is not required to prove that one exists.
Generally speaking, if it can be proven that someone acted with malice, criminal penalties and/or civil elder abuse charges are more easily proven in court. Conversely, someone showing no malice or wanton negligence, but owing a duty of care, is perhaps more easily sued for medical malpractice.A Professional Attorney Can Help
Regardless of whether you believe a cause of action exists for elder abuse, medical malpractice, or both, a dedicated legal professional can make a big difference in your case. The talented San Jose medical malpractice attorneys at Corsiglia, McMahon & Allard, L.L.P. have years of experience in these types of cases, and know how to handle each specific issue with insight and compassion. Contact us today to discuss your options. We serve San Jose, the Bay Area, and the counties of Santa Clara, San Mateo, San Benito, Alameda and Monterey.