Elderly Patients Pose a Disproportionate Malpractice Risk

Roughly 11% of the United States population is age 70 or older, but for the caregivers attending to them in health care settings, elderly individuals present a disproportionate patient safety challenge.

Even under optimal care conditions, older patients are susceptible to injuries from falls and immobility. When care dips below the acceptable standard, then adverse events among older patients accelerate the risk of malpractice allegations. If the current staffing shortages persist while America’s population continues to age, then we are likely to see more claims and lawsuits involving elderly patients.

Candello data indicate that 16% of patients involved in all MPL cases are age 70 or older. When we focus on cases in which nursing was identified as the service responsible for the patient at the trigger point for a malpractice case, we see that 46% of those patients were age 70 or older.

Medical Professional Liability Cases
Asserted 2016–2020

*Includes reserves for open cases and payments on closed cases
Source: Candello cases from 2016–2020 with Nursing as the primary responsible service

Two-thirds of “nursing” cases filed from 2016-2020 allege failures in patient monitoring or ensuring the patient’s safety. Cases with those allegations are dominated by the consequences of decubitus ulcers and patient falls. In 44% of all nursing cases, the patient experienced a high-severity injury or died (compared to 41% for all MPL cases in the same time frame).

The average incurred loss for nursing cases ($184,000) is well below the overall MPL average of $274,000, but the impact on the involved patients and families is clearly significant. Even though nurses constitute a relatively small percentage of MPL case defendants—even when nursing was the responsible service—they are, of course, impacted by any patient injury. The personal ramifications for all caregivers involved in adverse events—and the lingering effect on staff stress and morale—demand leadership attention.

Even the most successful programs for minimizing pressure injuries and patient falls require commitment, vigilance, and staffing. Such programs can mitigate the risks and support a defensible care standard if an injury leads to a claim or suit. Under extenuating circumstances, adjustments to those programs (e.g., adding patient check huddles, falls contracts, etc.) that shore up staffing-related vulnerabilities will be important.

While this analysis focuses on care prior to COVID-19, the pandemic’s impact on health care staffing is ubiquitous. Advances in technology and technique may offer some efficiency, but vigilance will remain the key to demonstrating that each patient was treated within the standard of care for all patients.

Organizations that are unable to sustain an established standard of care due to staffing or other circumstances have to examine how they will align offered services and patient expectations with today’s on-the-ground reality. That may prompt hard decisions for health care leaders, but without due attention to the problem, elderly patients who suffered because their care fell below what they expected may increasingly look for compensation through the legal and insurance systems.