Ethico-Legal Issue

Presented a frail, obese, 82-year-old nursing home resident who is considered to be a difficult patient. One morning, she refuses her usual bath and then demands to be bathed at noon. She creates such a commotion that an aide agrees to help her bathe. Normally, the patient requires 2 people to assist her in the bathroom, and with only one aide to help her, she falls. She complains of hip pain and is transferred to her bed. Her primary physician is called and orders acetaminophen for the pain and an x-ray. Later in the afternoon, a nurse calls the physician's office for the x-ray result and is told by the physician's staff that the report will be available later. The patient complains of severe pain, and the nursing home supervisor calls the medical director who says that he will call the primary physician early the next morning. The next morning, the patient is sent to the emergency department where her fractured femur is documented. Unfortunately, the patient develops congestive heart failure and suddenly dies. The Department of Health fines the facility $500 and the family sues everyone, including the medical director.

The subsequent discussion began with the question of the difference between poor care, malpractice, and abuse. Who is at fault? Abuse or neglect does not have to be intentional, so perhaps this is unintentional abuse on the part of the aide. However, several discussants believed that although the aide may have exercised poor judgment, there is a major systems issue and we should look for a pattern. Poor care, abuse, and malpractice are not mutually exclusive, and there can be individual issues and systems issues. An experienced long-term care nurse sensed the need for nursing advocacy for the patient, for example, pushing for more appropriate pain control. She also saw the episode as an opportunity for staff education. One researcher noted that to laypeople, intentional vs unintentional harm is an important distinction. Professionals tend to downplay intentionality.

Legally there is not enough information to tell whether this would be a criminal or civil case. The primary physician's conduct is clearly inappropriate and the medical director is likewise out of line. The patient's pain management should be a priority, but does inadequate pain management always constitute elder abuse?

What should have happened? The immediate consensus was that the medical director should have promptly sent the patient to the emergency department. The Health Department dropped the ball with such a minor penalty. In some states, the need for effective palliation can override a Do Not Hospitalize order if pain control cannot be achieved in long-term care.