Patient neglect is different from abuse in that harm can be caused by the absence of care or treatment as opposed to direct harm caused by an action. Medical neglect is the denial of essential medical care or treatment, or the deprivation of intervention needed to prevent a life threatening medical condition or injury. In California, accepted medical standards of care guide the test of reasonableness.
Medical Malpractice
When medical care does not meet what are considered to be generally accepted medical standards of care and the patient is injured, dies or experiences other health issues as a result, the neglect may be considered medical malpractice. The malpractice claim may be brought against:
- Any medical professional responsible for the care
- The hospital or nursing home where care is provided
- Medical personnel providing in-home care to patients
- Federal, state or local agencies that operate medical facilities where the neglect occurred
Medical malpractice claims are brought in a civil suit by the patient or the patient’s family, and the case is between the civil suit filers and the medical persons or facility accused of neglect. A criminal case resulting from neglect charges is between the State of California and the medical personnel and/or medical facility.
In the event that the neglect leads to patient death, a Wrongful Death suit can be filed by the surviving family members.
Elder Neglect
There are special California laws that protect elderly, disabled and dependent patients from abuse and neglect. Elder neglect is one of four categories of elder abuse identified by California and specifically refers to placing a person who is 65 years old or older in a situation where physical harm or death is likely to occur.
The other three categories are physical abuse, emotional abuse, and financial abuse. If the elder is in a nursing home, the medical personnel involved in the elder’s neglect and the owners of the nursing home can be prosecuted and/or sued.
Elder neglect is prohibited under California Penal Code 368 PC. The charge of elder abuse can be a misdemeanor or a felony. This type of law is referred to as a “wobbler” law. The 1987 Nursing Home Reform Act is a federal law that also protects elder nursing home residents from abuse and neglect.
Consult an Attorney
Attorneys with experience in medical abuse and neglect laws can provide valuable advice to patients, family wishing to file a civil lawsuit or to nursing homes wishing to defend against state and federal charges or individual lawsuits.
