One avenue for the aggrieved aged care resident or their family is the common law remedy of negligence. This is common in the UK and US, but less so in Australia. There are a number of reasons for the low number of claims here including: unwillingness by residents and their families to make complaints for fear of reprisal; a poor attitude to complaints in the system; and an ineffective complaints mechanism.
An aged care claim can be extremely confronting, but the legal issues are not difficult.
How will we prove negligence?
Patients may not be able to give evidence but their families can provide first-hand accounts, including photographs. CCTV cameras in aged care facilities can help. In many cases, the allegations are indefensible. The Aged Care facility is obliged to keep records of clinical care provided. Access to these records is possible, and they provide invaluable evidence as to care, or lack of care.
Examples would be extreme grade 4 bedsores, inappropriately prolonged use of anti-psychotic medication, use of anti-psychotic medication on residents who do not require it, failure to treat infections leading to death, failure to dress wounds adequately, failure to monitor blood sugar levels and treat diabetes appropriately and neglect (from malnutrition or dehydration). Reports to the Aged Care Complaints Commission on whether the aged care provider complied with quality of care principles may also play a role in determining if there has been neglect.
Ultimately, using evidence provided by families, contemporaneous photographic and video evidence, together with medical records from the aged care facility and third party providers (e.g. GPs and Hospitals) we can obtain accurate expert evidence as to whether the care provided is acceptable in a first world country such as Australia.
Are damages payable?
If negligence is proven, damages for out of pocket expenses and pain and suffering will be appropriate. Exemplary damages might be payable in a case of “outrageous intentional conduct” such as physical restraint assault or, in extreme cases, murder.
When an elderly patient has died, grieving family members may be entitled to damages based on mental harm. Although generally modest, these damages are a function of the degree of mental harm suffered by the individual. For those families who have witnessed egregious care which placed their family member in life-threatening peril, damages can be substantial. Given the challenges, most cases will be settled via negotiation, and conducting a claim prior to legal proceedings being commenced often works best.
Is it worth going to court?
Many problems that lead to serious medical error are systemic in nature: that is, they don’t occur in isolation but are part of a chain of events, such as the way medications are stored, leading to preventable error. There is a clear connection between the incidence of serious preventable errors and inadequate staffing, high staff turnover or the use of under-qualified and overworked staff.
Alliances are developing between aged care advocacy groups and lawyers who see that litigation may be the best way to highlight systemic problems in aged care and improve standards. Litigation also affects the bottom line, providing an economic incentive for aged care providers to improve patient care.
In bringing a negligence action, you are stating publicly that you have, or a loved one has, been harmed by the carelessness or substandard behaviour of a person or institution who owed you duty of care. By standing up and speaking out, you are helping to prevent others from being harmed by a similar event in the future. Insurance companies and negligent care providers do not want you to enforce your legal rights and speak out against the care that you or a loved one has received.
If you have concerns about the care of a loved one in an aged care facility, contact one of our lawyers today.
Our health and elder law teams are highly respected in health and medical litigation, with specialist knowledge accumulated over 30 years. Our team can assist you by providing expert advice and legal support regarding your options. Contact us today on (02) 4929 3995 of firstname.lastname@example.org.
*The material provided in our information sheets is for general knowledge only and is not a substitute for independent legal advice. For further information about the issues affecting you, please contact one of our experienced and professional lawyers for expert advice.