Your Malpractice Advisor: Risks With Elderly Patients

Lee J. Johnson, Esq.


May 09, 2011

In This Article


Your incapacitated elderly patient probably requires the greatest amount of your time and patience. All doctors are familiar with this patient who cannot report accurately her history or current symptoms, does not understand your recommendations, and probably will not be able to follow your treatment regimen or remember to take the medications you have prescribed.

Each of those situations carries potential liability.

  • Failure to diagnose: If the patient cannot relate her history, tell you her symptoms, or remember why she has an appointment, diagnosis will be difficult.

  • Failure to follow up: If she cannot follow your orders, get the prescriptions filled, remember to take her pills, understand your health recommendations like diet and exercise, or remember to keep her next appointment, the patient will have poor adherence. Then you and your office will have to do more to follow up.

  • Lack of informed consent. If the patient does not have capacity, consent will be problematic.

What constitutes incapacitated? "Capacity" for legal purposes regarding informed consent can be defined as, "the ability to understand the risks, benefits, and alternatives to the recommended treatment." Any adult (even an elderly adult) with sufficient "capacity" has the right to consent or to refuse treatment.

Comparative or contributory negligence can always be argued in the doctor's defense. With an average adult patient, any failures on behalf of the patient can be used to minimize physician liability. With the incapacitated patient, however, the majority of the legal burden will probably fall on the doctor.


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