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Medical Malpractice vs. Elder Abuse: What’s the Difference?

Our elderly family members should be protected and well-cared for. Unfortunately, many older adults are subject to exploitation, negligent care, and even abuse. If you have an elderly family member who suffered an injury, you may not be sure if it was a case of elder abuse or medical malpractice. Some injured seniors are victims of both elder abuse and medical malpractice. 

A claim for malpractice or abuse can help the injury victim recover damages for their injuries. It can also help hold those responsible accountable for what they’ve done. If you have questions about a medical malpractice claim, nursing home negligence, or elder abuse, talk to an experienced legal team for advice. 

What Is Elder Abuse?

Elder abuse involves intentional or negligent acts by caregivers that cause harm or serious risk of injury to a vulnerable adult. The definitions of elder abuse can vary by state. For example, Maryland defines elder abuse as, “a single or repeated act of intentional or negligent behavior perpetrated by a caregiver, entity, family member, staff, or trusted individual, that causes harm to a vulnerable older adult.”

For a resident of Chicago, the Illinois Department of Human Services defines elder abuse and neglect as, “the mistreatment of a person 60 years of age or older who lives in the community.”

Most cases of elder abuse involve a caregiver, either in the home or in a care facility. Abusive caregivers can include nurses, social workers, home health aides, doctors, family members, and even other elderly individuals. 

Medical malpractice can involve elder abuse but medical malpractice broadly covers any age of patient, from pregnant mothers, to newborns, to children, to the elderly. Medical malpractice often involves negligence, which is breaching the duty of care but it may not be intentionally causing harm. However, elder abuse can involve intentional action to cause harm, as well as negligence or neglect. 

Types of Elder Abuse  

According to the Centers for Disease Control and Prevention (CDC), common types of elder abuse include: 

  • Physical abuse
  • Sexual abuse 
  • Emotional or psychological abuse
  • Neglect
  • Financial abuse 

An estimated 1 in 10 people aged 60 and older who live at home have experienced abuse, neglect, or exploitation. In serious cases, it can lead to assault, permanent injuries, and fatal injuries. Men suffer nonfatal assaults and homicides at a much higher rate than women, with people of color suffering a higher rate of elder homicides. 

Is Elder Abuse a Type of Medical Malpractice?

Elder abuse can overlap with medical malpractice. Medical malpractice involves a doctor or medical professional who owes a duty of care to their patient. If the doctor deviates from standard practices, which causes an injury and damage, the doctor may have committed medical malpractice. 

Medical malpractice could be active or passive. That means the doctor could have actively done something that caused the patient’s injury, or failed to take action that increased the harm suffered by the victim. For example, if a doctor saw signs of elder abuse and failed to report it, the doctor may have breached their duty of care to the patient. 

Some ways that medical malpractice could involve elder abuse include intentional harm or negligence that causes serious injury to an elderly patient. For example, medical malpractice elder abuse could involve: 

In some cases, it can be difficult to prove both elder abuse and medical malpractice. Both claims have separate elements of the offense to prove in court. You may have a stronger case for one claim or the other, or could try to prove both elder abuse and malpractice. Talk to your attorney about the best strategies in your case to recover damages and get justice. 

Elder Abuse Criminal Charges and Civil Claims

Medical malpractice is generally a civil claim. This means the injury victim can seek civil remedies, like damages and other remedies. However, elder abuse can be a criminal offense. The penalties for elder abuse can include jail time, fines, and restitution to the victim. The victim of elder abuse and their family may want the abuser to go to jail for what they did. However, the burden of proof is higher for criminal cases than for civil cases. 

This is an important distinction in whether to pursue damages in a civil case. For example, after complaining to the authorities, the prosecutors may have decided not to pursue an elder abuse case. That does not mean that you cannot pursue a civil case. Even if the prosecutors did take the case to court but a jury found the doctor not guilty, you can still go for civil damages. This is because of the difference in the burden of proof. 

In a criminal case, the prosecutor has to show the doctor, nurse, or caregiver met all the elements for elder abuse “beyond a reasonable doubt.” If there is any question about any element of the claim, the defendant may be found not guilty. However, in a civil case, the burden is only “by a preponderance of the evidence,” meaning more likely than not, or greater than a 50% chance. 

If there are criminal charges, you generally have to wait until after the criminal proceedings are over before you can file a claim. Talk to your attorney about your options after a loved one suffered an injury at the hands of a doctor, nurse, or medical professional. 

Is Nursing Home Negligence Also Medical Malpractice?

Nursing home negligence is also a type of harm for the elderly, that could include incidents of elder abuse, medical malpractice, and/or personal injury. Nursing home negligence is a type of negligence that generally falls under elder abuse. However, nursing home negligence generally occurs in a nursing home or long care residential facility. 

Residents of nursing homes can be subject to abuse without much oversight from family members. Many residents of nursing homes do not have many visitors, especially when the resident is severely disabled or nonverbal. The resident may not have many family members in the area or the family members may have a difficult time seeing their loved ones in those conditions. 

Without an outside advocate, a nursing home resident could be subject to regular abuse, neglect, or financial exploitation by nursing home workers, doctors, or other residents. Many residents are fearful of speaking up because they fear retaliation if their abusers find out they spoke out. It can cause an environment of fear that causes further withdrawal. 

What Are Signs of Elder Abuse?

The signs of elder abuse may be subtle. However, there are often multiple indicators of possible abuse. If you suspect abuse, you can report the suspected abuse to authorities who can conduct a more in-depth investigation to see what is really going on. Reporting abuse against one elderly person can often result in relief for multiple victims. According to the National Institute on Aging, signs of elder abuse can include: 

  • Seem depressed, confused, or withdrawn
  • Isolated from family and friends
  • Unexplained injuries, including burns or bruises
  • Appears malnourished, dirty, dehydrated, or not receiving medical care
  • Has bed sores or other preventable injuries
  • Recent changes in spending patterns
  • Sudden changes in behavior
  • Loss of interest in things that were formerly enjoyed
  • Being kept away from others, the phone, or not allowed to send mail

Some people may be at greater risk for abuse. When questioning whether a loved one may be a victim of abuse, take into account these factors: 

  • Mental illness
  • Abuse of drugs or alcohol
  • Past experience of traumatic events
  • Poor coping skills
  • Witness to abuse as a child
  • Social isolation
  • Past family conflict
  • Lack of social support

Is It Hard to Prove the Elder Injuries Were Caused by Malpractice?

Medical malpractice cases can be complicated and take a long time before the injury victim finally gets their compensation. But even if you think there is not a lot of proof, you may still have a strong case. Some cases of medical malpractice do not require showing that any one doctor or nurse was responsible. In cases of strict liability, surgical site injuries, wrong limb surgery, or other cases, it may be enough to show that the injury would not have occurred but for negligence

How to Report Elder Abuse

According to the Department of Health and Human Services (HHS), if you know someone is in immediate danger, call the police or call 9-1-1. If the elderly person is not in immediate danger, you can call the police or report your concerts to the local adult protective services agency. Below are a few state protective services agencies. 

Illinois Elder Abuse Reporting

Illinois Department on Aging
Adult Protective Services (APS)

Maryland Elder Abuse Reporting

Maryland Department of Human Services
Office of Adult Services
Adult Protective Services

Pennsylvania Abuse Reporting

Pennsylvania Department of Human Services
Adult Protective Services

Damages for a Medical Malpractice Abuse Claim

The injury victim in a medical malpractice claim can recover damages to compensate them for their injuries. Damages in a medical malpractice case can include economic and noneconomic damages. Economic damages include out-of-pocket losses and expenses caused by the abuse. This can include medical bills, psychological counseling, costs of moving to another care facility, and future expenses. Non-economic damages can include pain and suffering, loss of consortium, and loss of enjoyment in life. 

In most medical malpractice cases, punitive damages are not available. However, they may be available in an elder abuse claim. Punitive damages are intended to punish the wrongdoer and deter others from committing similar acts in the future. Punitive damages are generally not available for negligence. However, if the malpractice claim involved intentional abuse, sexual misconduct, or other egregious acts, punitive damages may be available. 

Wrongful Death Abuse Claims

Some elder abuse malpractice cases may be fatal. If the victim of elder abuse died as a result of their injuries, the family or personal representative may be able to file a wrongful death claim on their behalf. A wrongful death claim may be the only way to get justice if the victim is not able to file a claim themselves. 

A wrongful death claim can help the beneficiaries recover damages, including funeral expenses, burial costs, and loss of support. Talk to your attorney today about options for recovering compensation after a medical malpractice or elder abuse claim. 

Elder Abuse and COVID-19

There were many reports of elder abuse during the coronavirus/COVID-19 pandemic. Older people were more susceptible to the illness, including increased exposure in care facilities and a more severe response to the virus. Some of the early injuries to elderly patients were due to the lack of information but a lot of the problems were caused by facilities that were negligently understaffed even before the pandemic. 

With increased isolation to protect the elderly against the virus, many elderly people were less often visited by family members, caregivers, and healthcare providers. This left many elderly people subject to abuse without others being aware of the signs of abuse. Even caring family members may have avoided visits with elderly relatives out of concern for their health. It is important to be aware of the difficulties in evaluating possible abuse when elderly family members are isolated and out of sight. 

What Are the Next Steps After Elder Abuse or Medical Malpractice?

There is a limited amount of time to file a claim for compensation. It is important to act sooner rather than later to make sure your case is filed in time. If you wait too long, your claim may be denied. Talk to an experienced elder malpractice professional about your case and your legal options. 

Contact experienced trial attorneys who have successfully represented medical injury victims and victims of abuse to recover financial compensation. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.

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