Aspects of care of the frail aged giving rise to negligence litigation against aged care facilities.

1. ‘Observations from the Coalface:
Protecting the rights of Elder Australians’
Delivered by Assoc. Professor Rosalie Hudson RN. Honorary Senior Fellow,
School of Nursing and Social Work, the University of Melbourne.
Consultant Educator, Palliative Care, Aged Care, Dementia and Spirituality.
Written by Catherine Henry
Principal, Catherine Henry Lawyers
Queensland Law Society
Succession and Elder Law Residential 2017

2. Aspects of care of the frail aged
giving rise to negligence litigation
against aged care facilities.

3.  Many enquiries but none on quality of care
 Review of National Aged Care Quality Regulatory
Processes (Federal)?? – Was due 29 September
 440 submissions received

4. Is there an “aged care crisis”?

5. What are the worst types of adverse events?
 Starvation and dehydration
 Chemical and physical restraints
 Poor security
 Falls
 Scalds
 Assaults
 Pressure sores
 Abuse

6. Remedies available
 Complain to Aged Care Complaints Scheme
 Civil remedies – negligence/intentional tort
 Little litigation in Australia
 c.f. UK/US

7. Litigation Rare
 Plenty of scope
 Rare – PI Lawyers don’t chase
 Residents unlikely to initiate
 Relatively low quantum
 Work is confronting

8. Why are these cases generally indefensible?
 Pressure sores
 Chemical restraint
 Malnutrition/dehydration

9. Risks of litigation
 Serious medical error –often systemic
 Significant reform issue – staffing
 Need for mandated staff/resident ratios
 Inadequate staffing ratios serious preventable error

10. Increased interest in aged care litigation
 Alliances – advocacy groups + lawyers
 Growth of “elder law”
 Role of litigation in improved care

11. Role of litigation
 Improved patient care
 Calling attention to serious problems
 Deterrent effect
 Economically driven patient safety strategies

12. Case Study 1:
 Dementia patient – escaped – poor security
 Fractured hip + pneumonia …death
 No “falls risk assessment”
 ACCS investigation – ineffective
 Negligence claim

13. Case Study 2:
Family demands to know why father died of malnutrition
http://www.abc.net.au/lateline/content/2013/s3871658.htm

14. Case Study 3:
 Substandard wound care
 89 year old women
 Staff had no training in wound management
 Facility and GP both defendants
 Infection progressed pneumonia death

15. For the future
 Cases should be brought
 Law is straightforward
 Well prepared cases resolve
 Facility and GP both defendants
 Benefits of common law in maintaining
professional standards

16. Thank you