Medical Negligence Claims Concerning Elderly Care
Some of the most common and difficult complaints that are seen in potential clinical negligence cases are the perceived lack of cleanliness, the lack of communication between staff and the patient and family members and the lack of apologies when things go wrong. Whilst these issues are of significant importance to the individuals involved, they may not necessarily be sufficient to enable that person to pursue a successful clinical negligence claim.
In order to pursue a successful claim a client has to be able to show not only substandard care (which will usually have to be backed by independent medical opinion), but also that this substandard care caused additional injury over and above that which the patient may have experienced.
However, there are some areas of nursing care and general communication and management issues that do come up time and again as being substantive contributors of causing unnecessary injuries to patients. Unfortunately these often arise in the area of care of the elderly.
The issue of whether or not ‘cot sides’ are appropriate is now a much mooted subject. In our experience, and with the backing of medical opinion, any patient who has problems with truncal (upper body) control should have bedsides in situ. This is because they are unable to stop themselves from falling out of bed and are also unable to protect themselves should that occur. The other side of the argument is that bedsides inhibit a conscious person from exiting the bed and could potentially lead to someone falling from a greater height than would have been the case had bedsides not been in place. Legally, cases have been won on the basis of both arguments.
Elderly patients, like anybody else, are entitled to full dignity. This can cause difficulties when questions arise concerning the patient’s ability to mobilise on their own and the patient’s entitlement to personal dignity on issues of personal hygiene and feeding. Autonomy of the individual is very important in the area of British medical and ethical law. No adult individual can be required to undergo any treatment or be subject to supervision unless they are the subject of a Mental Health Act [1995] Section Order, or are deemed to be unable to make competent decisions under the Mental Capacity Act 2005, in which case the clinical decision of medical professionals may prevail. This means that any competent patient is entitled to insist on privacy even in risky situations and to refuse to take recommended medication, which can complicate any complaint that family members wish to raise, should the patient suffer injury as a result.
The key issue is a full and appropriate assessment being taken of each individual patient. The patient’s abilities and difficulties should be properly taken into account, and documented with a properly reasoned ‘Falls Risk Assessment’ by the nursing staff who are responsible for the day-to-day care of any inpatient. Any concern about the patient’s mental capacity should be fully documented by both doctors and nursing staff alike. The recommendations of any such properly performed Falls Risk Assessment and Neurological Assessment must be carried through and revised if the condition of the patient changes.
The other main issue of complaint that we common in medical negligence claims is that of pressure sores, which can in some very unfortunate and sad circumstances, lead to the death of the individual concerned. Most agree that severe pressure sores are inexcusable in a hospital or nursing home environment. Some degree of pressure sores are not avoidable in, for example an immobile, elderly, diabetic patient. However, these should in a medical environment, be identified at a very early stage and be treated appropriately, so that they do not become life-threatening.
Overall, the care and treatment of an individual patient remains the responsibility of the Consultant consigned to their care. However, the treatment that any patient receives from nursing and auxiliary staff is of great importance and must follow appropriate hospital guidelines. Staff shortages may explain difficulties but at the end of the day every patient treated within an NHS or nursing establishment is entitled through the NHS Constitution 2009 and the Care Quality Commission to what is deemed by independent experts to be an acceptable standard of care.
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