painlaw.org : Patients' Right to Palliative Care : Using State Elder Abuse Laws in Pain Treatment Cases

Sick and dying older Americans are often in pain that is misunderstood, ignored or undertreated. The pain treatment given them falls short of existing medical guidelines^1/ and of state laws that require adequate medication for patients suffering chronic pain^2/. Older Americans receive less medication for pain than do younger patients^3/, and older people with dementia receive less pain management than their competent contemporaries^4/. This, combined with several state laws that make deprivation of needed medical treatment a form of elder abuse, suggests that failure to manage an elder person’s pain may be viewed as elder abuse by a court of law.

In June 2001, a California jury decided that a doctor’s failure to manage an elderly cancer patient’s pain violated the state’s elder abuse statute^5/. The family of the deceased patient was awarded $1.5 million^6/. The case was the first of its kind under an elder abuse statute, but it will not be the last.

In the California case, an elderly man whose metastasized lung and bone cancer made him unable to swallow was prescribed intravenous Demerol, a narcotic, to be given in 25- or 50-milligram doses as needed while he was hospitalized. Hospital records showed that his pain through hospitalization was rated between 7-10 on an assessment scale^7/. With a 10 being "unimaginable pain,” hospital nurses expressed concern about his pain levels.^8/

The patient decided to die at home. Upon his discharge, his pain was rated a 10, but he was prescribed only oral Vicodan, a weaker opioid. The doctor refused to prescribe higher levels of opioids. After several days, the family obtained a second doctor. The new doctor prescribed adequate morphine, which brought immediate relief.^9/

The family sued both the medical center and the physician, claiming violation of the California Elder Abuse and Dependent Adult Civil Protection Act.^10/ At trial, the physician defended his actions on grounds that he feared respiratory depression if strong pain medication were administered and that the patient had reacted to earlier Demerol with breathing problems.^11/ The defense also argued that the physician had received no training in pain management during medical school or in continuing medical education courses.^12/ The family was seeking an order to require the doctor to get pain management education.^13/

The California Elder Abuse Act is designed to protect elders and dependent persons from abuse, neglect and abandonment. The Act states that abuse of an elder includes neglect.^14/ Neglect is defined to include failure to provide medical care for physical and mental health needs.^15/ It allows for both criminal prosecutions ^16/ and civil suits ^17/ against those accused of elder abuse. It also allows a victim’s family to bring a lawsuit, even after the victim’s death.^18/

This case was the first in which undertreatment of pain was framed as an elder abuse claim.^19/ However, it was not the first time a physician has been sued under the California Elder Abuse Act for inadequate medical treatment. In May 2000, a physician at a nursing home was found liable for elder abuse for concealing a patient’s bedsore, opposing her hospitalization when it was medically necessary, and then withdrawing from her case shortly before her death.^20/ The nursing home case, like the later case against the doctor, was based on the fact that the California Elder Abuse Act covers the failure to provide medical care for health needs.^21/ Similar provisions in other states’ statues, combined with medical guidelines outlining the proper treatment of pain in sick or dying patients, offer another way to impose responsibility for failures in pain and symptom management.

Guidelines

One reason for the long gap between Millhaven and Eden Medical Center may have been that the overall standards for pain care in the U.S. were so low that proving elder abuse was difficult. In the last several years, however, major strides have been made in defining standards of care and creating a broad clinical consensus that pain must be given serious attention.

Guidelines and policies of government agencies, major medical boards and societies serve a normative function in the medical community. As medical science has improved in its understanding of the physiological and pharmacological elements of pain control, these norms have extended to pain management. In this respect, pain management is no different from other medical advances—it has evolved into a standard of care.

Organizations concerned with the problems of elderly patients have issued guidelines and recommendations for the treatment of pain. The American Geriatric Society issued Clinical Practice Guidelines on the management of chronic pain in the elderly in 1988,^22/ and in 2000, the Joint Commission on Accreditation of Healthcare Organizations began requiring accredited medical facilities to assess and treat pain.^23/ In 2000, the American Bar Association Commission issued a report and approved a resolution stating that adequate pain relief should be considered a basic legal right.^24/

In addition to the elder-specific recommendations, a number of agencies have issued guidelines on the management of pain in all population, including the elderly. In 1994, The Agency for Health Care Policy and Research (now known as the Agency for Health Care Research and Quality) issued guidelines stating that as much as 90 percent of cancer pain could be adequately controlled with existing medications,^25/ and in 1996 the American Academy of Pain Medicine and the American Pain Society issued a consensus statement on the use of opioids in chronic pain management.^26/

State legislatures and medical boards have also recognized the importance of adequate pain medication. In 1998, the Federation of State Medical Boards produced their Model Guidelines for the Use of Controlled Substances for the Treatment of Pain ^27/, which were endorsed by the National Association of State Controlled Substances Authorities,^28/ the Drug Enforcement Administration ^29/ and the National Association of Boards of Pharmacy.^30/ Most states have statutes or guidelines assurring physicians that they will not be penalized for responsible and well-documented treatment of pain using opioids.^31/ Where the guidelines have been adopted as statutes, they often protect doctors who prescribe pain medication from state criminal prosecutions if a patient's death is thereby hastened. Beyond the pain management guidelines, some states have adopted statutes and regulations mandating adequate treatment for chronic pain sufferers.^32/ Effective in 2002, California will require all licensed physicians, nurses and other health care providers to attend pain management classes in order to have their licenses renewed. The cumulative effect of these measures is a reasonable expectation by patients and their families that adequate medical treatment will include the relief of pain whenever possible.

By establishing a standard of care and demonstrating both that pain is treatable and that it should be treated, the measures should also make it much easier to prove that a failure to meet the standard of care constitutes elder abuse.

State Elder Abuse Statutes

Elder abuse statutes vary from state to state. Many states, as well as the Virgin Islands and Guam, now have some sort of statutory protection of the elderly and the disabled. Sixteen states’ statutes provide penalties for the physical abuse or neglect of an elder or dependent adult,^33/ and eight more states provide penalties for the physical or emotional abuse of an elder or vulnerable adult.^34/ Other states penalize only the failure to report suspected elder abuse to the proper authorities.^35/ Once the abuse is reported, the statutes provide that state social workers or other state agency representatives shall step in to correct the abusive situation. In these states, no cause of action is available to the family or the victim against the abuser.^36/ (If the state fails to correct the abuse, however, it may itself be liable under state or federal law.) A handful of other states have elder or dependent adult statutes that create some sort of protection but do not provide specific penalties for abuse.^37/

Of the 25 states that currently penalize the neglect or abuse of an elderly or vulnerable adult, most specifically include the failure to provide medical treatment. Alabama,^38/ California,^39/ Florida,^40/ Maryland,^41/ North Carolina,^42/ South Carolina,^43/ South Dakota,^44/ Utah,^45/ Vermont,^46/ Washington,^47/ and Wyoming ^48/ all include the failure to provide medical care in their definitions of abuse or neglect. Arizona includes in its definition of abuse injuring the health of a vulnerable adult and allowing the health of a vulnerable adult to be endangered.^49/ Nebraska states that the definition of an abused or neglected elder includes one who is denied essential services.^50/ However, Illinois and Virginia specifically state that health care services are not covered by their elder abuse statutes.^51/ The remaining states that criminalize elder abuse do not mention health or medical care and would require court decisions to apply their existing elder abuse statutes to the issue of medical treatment.

In addition to the California provisions that include failure to provide medical care in the definitions of elder abuse and neglect,^52/ the plaintiffs in Bergman v. Eden were aided by sections of the California Elder Abuse Statute that allow for civil suits as well as for criminal prosecutions, that allow family members to bring suit even after the elderly person’s death, and that allow for the collection of attorney’s fees by a successful plaintiff.^53/ A few other states have similar provisions. The elder abuse statutes of Florida,^54/ Oregon ^55/ and Tennessee ^56/ allow for civil suits, allow a cause of action to survive an elderly victim’s death, and allow for collection of attorney’s fees. The state of Washington allows civil suits and attorney’s fees, but does not permit a cause of action to be brought by family members after an elder’s death.^57/ Most states, on the other hand, criminalize elder abuse or the failure to report elder abuse, but do not provide civil remedies.

However, the failure to provide a civil remedy does not necessarily preclude a civil suit. A traditionally recognized principle of tort law says that a criminal statute can create a private right of action for victims of the crime.^58/ While a criminal statute does not automatically create a private remedy, courts have the authority to imply a private cause of action from a criminal statute where the legislature has failed to provide a civil remedy. The U.S. Supreme Court held in Cort v. Ash^59/ that a criminal statute can provide the basis for a civil remedy. The American Law Institute, in the Restatement Second of Torts,^60/ provides a list of factors that courts should consider in determining whether a statute provides a private cause of action. These factors include whether the private remedy would favor the legislative purpose of the statute, whether the private remedy would be necessary to assure the effectiveness of the statute, and whether the statute protects a specific class of persons. Accordingly, undertreatment of pain could allow for an elder abuse action in states where there is no specific civil remedy.

In conclusion, bringing suit for inadequate pain management will be most straightforward under an elder abuse statute that specifically mentions medical treatment. The existence of an elder abuse statute combined with state medical board guidelines or regulations on pain management could provide a basis for an action. Until appellate review shapes limitations, it is reasonable, after the plaintiffs’ recent success in Bergman v. Eden Medical Center, to expect that causes of action brought under state elder abuse statutes will be routinely tacked on to malpractice suits involving pain.

Notes

1. See, note 22-27. Return to text.

2. See, e.g., Bernabei R, et al., “Management of Pain in Elderly Patients with Cancer,” JAMA 1998; 279: 1877-82; Won A, et al., “Correlates and Management of Nonmalignant Pain in the Nursing Homes,” J. of the Amer. Geriatrics Soc. 936-42 (August 1999). See also, American Bar Association Commission on Legal Problems of the Elderly, Report to the House of Delegates, Recommendation, April 2000. Return to text.

3. Honari S, Patterson DR, Gibbons J, Martin-Herz SP, Mann R, Gibran NS, Heimbach DM. Elderly Shortchanged in Pain Medication J Burn Care Rehabil. 1997; 18:500-504. Return to text.

4. Morrison RS, Siu AL. Survival in End-State Dementia Following Acute Illness. JAMA 2000; 284: 47-52. Return to text.

5. Bergman v. Eden Medical Center, Cal. Super. Ct., No. H205732-1, June 13, 2001 Return to text.

6. California’s malpractice laws limit recovery for pain and suffering to $250,000 and the award in this case was similarly reduced after briefing and hearing. The plaintiff argued that there was no statutory history linking the elder abuse statute and the medical malpractice statute and that the penalty structure in the elder abuse legislation indicated a different approach. Defense argued that the nature of the claim (doctor negligence) was a variation on malpractice and should be similarly limited. The order reducing the verdict is on appeal. Whatever the outcome, the jury’s verdict should be read as an indication of public revulsion to untreated pain in the dying. Return to text.

7. Susan Okie, “Doctor’s Duty to Ease Pain at Issue in California Lawsuit; Physicians Are Wary in Prescribing Narcotics,” Wash. Post, May 7, 2001; Susan Okie, “California Jury Finds Doctor Negligent in Managing Pain," Wash. Post, June 15, 2001. Return to text.

8. California: Jury Decides Undertreatment of Pain Was Elder Abuse, Sets $1.5 Million Damages, 10 BNA Health Law Reporter 982, June 21, 2001. Return to text.

9. Berman v. Eden, supra note 5. Return to text.

10. Cal. Welf. & Inst. Code, §§ 15600 - 15675. Return to text.

11. The belief that opioids cannot safely be prescribed because they may cause respiratory depression has been discredited by medical research and experience. See, Fohr SA, “The Double Effect of Pain Medication: Separating Myth from Reality,” J. of Palliative Med. 1998; 1: 315-28. Return to text.

12. California: Jury Decides Undertreatment of Pain Was Elder Abuse, Sets $1.5 Million Damages, 10 BNA Health Law Reporter 982, June 21, 2001. Return to text.

13. Id. Return to text.

14. Cal. Welf. & Inst. Code, § 15610.07. Return to text.

15. Id. § 15610.57. Return to text.

16. Id. § 15656. Return to text.

17. Id. § 15657-15657.3. Return to text.

18. Id. § 15657.3 (c) and (d). Return to text.

19. BNA Health Law Reporter, supra note 9, quoting Kathryn Tucker, legal affairs director for the Compassion in Dying Federation. Return to text.

20. Mack v. Soung, Super. Ct. No. CV001511, 3rd. App. Dist., May 17, 2000. Return to text.

21. Cal. Welf. & Inst. Code § 15610.57. Return to text.

22. American Geriatrics Society Panel on Chronic Pain in Older Persons, “The Management of Chronic Pain in Older Persons,” J. of the Am. Geriatrics Soc., 46: 635-651, 1998. Return to text.

23. JCAHO, Pain Management Standards, added to the Comprehensive Accreditation Manual for Hospitals, effective Jan. 1, 2001. Standards newly added or edited to include pain management requirements are RI.1.2; RI.1.2.7; RI.1.2.8; PE.1.4; TX.3.3; TX.5.4; PF.3.4; CC.6.1; and PI.3.1. Return to text.

24. American Bar Association Commission on Legal Problems of the Elderly, Report to the House of Delegates, Recommendation, April 2000. Return to text.

25. Agency for Health Care Policy & Research (ANCPR), U.S. Dept. of Health & Human Services, Public Health Agency, Clinical Practice Guideline Number 9: Management of Cancer Pain (AHCPR Publication No. 94-0592 1994). Return to text.

26. American Pain Society. Return to text.

27. The Federation of State Medical Boards of the United States, Inc. “Model Guidelines for the Use of Controlled Substances for the Treatment of Pain,” 1998. Return to text.

28. The National Association of State Controlled Substances Authorities, Endorsement of Federation’s Model Guidelines, 1999. Return to text.

29. The Drug Enforcement Administration and Proposed Model Guidelines for the Use of Controlled Substances in Pain Management, Speech by Patricia M. Good before the Federation of State Medical Boards Symposium on Pain Management and State Regulatory Policy, March 17, 1998, Dallas, Texas. Return to text.

30. National Association of Boards of Pharmacy, Letter Endorsing Federation’s Model Guidelines, 2001. Return to text.

31. For a listing of state guidelines, statutes, and regulations on the prescription of controlled substances for the treatment of pain, see the University of Wisconsin Medical School Pain & Policy Studies Group website. Return to text.

32. See, e.g., R.I. Gen. Laws §§ 5-37.4-1 to 5-37.4-1: The Intractable Pain Treatment Act; Okla. Stat. § 435:10-7-11: Intractable Pain; Cal. Bus. & Prof. Code § 2241.5: Intractable Pain Treatment Act. Return to text.

33. Cal. Welf. & Inst. Code §§ 15600-15675; Il. Stat. Ch. 320 § 20/11 et seq.; Iowa Code § 726.8 (addressing dependent adults rather than elders specifically); Md. Ann. Code art. 27, § 35D(1) (2001); Mich. Comp. Laws. Ann. § 750.145n (criminalizing vulnerable adult abuse, rather than elder abuse specifically); Mo. Ann. Stat. §§ 198.070 (failure to report) and 198.067 (civil penalties for abuse in nursing homes); Neb Rev. Stat. § 28-386(1) (2000); N.Y. Penal Law §§ 260.32 and 260.34 (McKinney 2001); N.C. Gen. Stat § 14-32.3; Ore. Rev. Stat. Ch. 124; S.D. Codified Laws Ann. tit. 22 ch. 46; Utah Code § 76-5-111 (2000); Va. Code Ann. § 18.2-369 (2000), as amend. by 2001 Va. Laws ch. 181 (S.B. 801); Rev. Code of Wash. §§ 74.324005 – 74.34.210; W. Va. Code § 9-6-1 (2000); Wyo Stat. §§ 35-20-101 – 35-20-109 (2001). Return to text.

34. Ala. Code. §§ 38-9-1 – 38-9-11; Ariz. Rev. Stat. Ann. § 13-3623 (2001); Fla Stat. Ann. § 415.101 – 415.113; Minn. Stat. Ann. §§ 609.231 and 626.557(d) (2001, as amend. by 2001 Minn. Sess. Law Serv. 1st Sp. Sess. Ch. 9 (S.F. 4) (West)); Nev. Rev. Stat §§ 200.5091 – 200.50995 (West 2001); S.C. Code Ann. tit. 43 ch. 35 (2000); Tenn. Code Ann. §§ 71-6-101 – 71-6-120 (2000); Vt. Stat. Ann.tit. 33, ch. 69 (2000). Return to text.

35. Alaska Stat. § 47.24.010 (2002), as amended by Alaska Law Exec. Ord. 2001-1023; Conn. Gen. Stat. § 17b-407(a) (2001); Ga. Code § 31-8-84; 10 Guam Code Ann. § 2954; Haw. Rev. Stat. § 346-224 (2000); Idaho Code § 39-5303; Iowa Code § 235B.3 (2001), as amend. by 2001 Ia. Legis. Serv. H.F. 680 (West); Kentucky Rev. Stat., tit. XVII, ch. 209; La. Rev. Stat. Ann § 14:403.2 (2001), as amend. by La. Sess. Law Serv. Act 1032 (S.B. 973) (West); N.H. Rev. Stat. Ann. § 161-F:46 (2001); N.J. Stat. Ann. § 52:27G-7.1 (2001); 43A Okla. Stat. Ann. § 101-105; N.M. Stat. Ann. 27-7-30 (2000); R.I. Gen. Laws § 42-66-8.2; Tex. Human Res. Code Ann. Tit. 2 ch. 48. (2001); Virgin Islands Stat., tit. 34 § 453; Wis. Stat. § 46.90(1)(f). Return to text.

36. Some states that criminalize only the failure to report elder abuse do provide definitions of elder abuse that could be useful to a plaintiff attempting to bring a malpractice suit for mismanagement of an elderly person’s pain. For example, the Wisconsin statute defines neglect as “a significant danger to an elder person's physical or mental health because the person who takes care of the elder person is unable or fails to provide adequate food, shelter, clothing or medical or dental care”. Wis. Stat. § 46.90(1)(f). Return to text.

37. Arkansas, tit. 20, ch. 33, requiring criminal records check for nursing home employees; Colorado Stat. § 26-11-205.5, designating funds for community services including, but not limited to, elder abuse prevention; Maine Stat., tit. 22, § 5106, creating a Bureau of Adult and Elder Services; Montana Stat. § 52-1-103, requiring Family Services to administer elder abuse prevention programs. Return to text.

38. Ala. Code. § 38-9-2.

Definitions.

For the purposes of this chapter, the following terms shall have the meanings respectively ascribed to them by this section:

(1) ABUSE. The infliction of physical pain, injury, or the willful deprivation by a caregiver or other person of services necessary to maintain mental and physical health.

(10) NEGLECT. The failure of a caregiver to provide food, shelter, clothing, medical services, or health care for the person unable to care for himself or herself; or the failure of the person to provide these basic needs for himself or herself when the failure is the result of the person's mental or physical inability. Return to text.

39. Cal. Welf. & Inst. Code

§ 15610.07. "Abuse of an elder or a dependent adult" means either of the following:

(a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.

(b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.

§ 15610.37. "Health practitioner" means a physician and surgeon, psychiatrist, psychologist, dentist, resident, intern, podiatrist, chiropractor, licensed nurse, dental hygienist, licensed clinical social worker, or intern, marriage, family, and child counselor, or any other person who is currently licensed under Division 2 (commencing with Section 500) of the Business and Professions Code, any emergency medical technician I or II, paramedic, a person certified pursuant to Division 2.5 (commencing with Section 1797) of the Health and Safety Code, a psychological assistant registered pursuant to Section 2913 of the Business and Professions Code, a marriage, family, and child counselor trainee, as defined in subdivision (c) of Section 4980.03 of the Business and Professions Code, or an unlicensed marriage, family, and child counselor intern registered under Section 4980.44 of the Business and Professions Code, state or county public health or social service employee who treats an elder or a dependent adult for any condition, a coroner, or a religious practitioner who diagnoses, examines or treats elders or dependent adults.

§15610.57. (a) "Neglect" means either of the following:

(1) The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.

(2) The negligent failure of the person themselves to exercise that degree of care that a reasonable person in a like position would exercise.

(b) Neglect includes, but is not limited to, all of the following:

(1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.

(2) Failure to provide medical care for physical and mental health needs. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.

(3) Failure to protect from health and safety hazards.

(4) Failure to prevent malnutrition or dehydration.

(5) Failure of a person to provide the needs specified in paragraphs (1) to (4), inclusive, for themselves due to ignorance, illiteracy, incompetence, mental limitation, substance abuse, or poor health. Return to text.

40. Fla. Stat. Ann. § 415.102

(1) "Abuse" means any willful act or threatened act that causes or is likely to cause significant impairment to a vulnerable adult's physical, mental, or emotional health. Abuse includes acts and omissions.

(15) "Neglect" means the failure or omission on the part of the caregiver to provide the care, supervision, and services necessary to maintain the physical and mental health of the vulnerable adult, including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services, that a prudent person would consider essential for the well-being of a vulnerable adult. The term "neglect" also means the failure of a caregiver to make a reasonable effort to protect a vulnerable adult from abuse, neglect, or exploitation by others. "Neglect" is repeated conduct or a single incident of carelessness which produces or could reasonably be expected to result in serious physical or psychological injury or a substantial risk of death.Return to text.

41. Md. Code 1957, Art. 27, § 35D (a) Definitions (8)(i) “Neglect” means the intentional failure to provide necessary assistance and resources for the physical needs of the vulnerable adult, including food, clothing, toileting, essential medical treatment, shelter, and supervision.Return to text.

42. N.C. Gen. Stat. § 14-32.3. Domestic abuse, neglect, and exploitation of disabled or elder adults.

(a) Abuse.–A person is guilty of abuse if that person is a caretaker of a disabled or elder adult who is residing in a domestic setting and, with malice aforethought, knowingly and willfully: (i) assaults, (ii) fails to provide medical or hygienic care, or (iii) confines or restrains the disabled or elder adult in a place or under a condition that is cruel or unsafe, and as a result of the act or failure to act the disabled or elder adult suffers mental or physical injury.

If the disabled or elder adult suffers serious injury from the abuse, the caretaker is guilty of a Class F felony. If the disabled or elder adult suffers injury from the abuse, the caretaker is guilty of a Class H felony.

A person is not guilty of an offense under this subsection if the act or failure to act is in accordance 0 with G.S. 90-321 or G.S. 90-322.

(b) Neglect.–A person is guilty of neglect if that person is a caretaker of a disabled or elder adult who is residing in a domestic setting and, wantonly, recklessly, or with gross carelessness: (i) fails to provide medical or hygienic care, or (ii) confines or restrains the disabled or elder adult in a place or under a condition that is unsafe, and as a result of the act or failure to act the disabled or elder adult suffers mental or physical injury.

If the disabled or elder adult suffers serious injury from the neglect, the caretaker is guilty of a Class G felony. If the disabled or elder adult suffers injury from the neglect, the caretaker is guilty of a Class I felony.

A person is not guilty of an offense under this subsection if the act or failure to act is in accordance with G.S. 90-321 or G.S. 90-322. Return to text.

43. S.C. Code § 43-35-10(6). “Neglect” means the failure or omission of a caregiver to provide the care, goods, or services necessary to maintain the health or safety of a vulnerable adult including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services. Return to text.

44. S.D. Codified Laws Ann. § 22-46-1. Definition of terms. Terms used in this chapter mean:

(1) "Abuse," physical harm, bodily injury, or attempt to cause physical harm or injury, or the infliction of fear of imminent physical harm or bodily injury on a disabled adult;

(2) "Disabled adult," a person eighteen years of age or older who suffers from a condition of mental retardation, infirmities of aging as manifested by organic brain damage, advanced age or other physical dysfunctioning to the extent that the person is unable to protect himself or provide for his own care;

(3) "Exploitation," the wrongful taking or exercising of control over property of a disabled adult with intent to defraud him of it; and

(4) "Neglect," harm to a disabled adult's health or welfare, without reasonable medical justification, caused by the conduct of a person responsible for the adult's health or welfare, within the means available for the disabled adult, including the failure to provide adequate food, clothing, shelter, or medical care. If a disabled adult is under treatment solely by spiritual means, the court may, upon good cause shown, order that medical treatment be provided for that disabled adult. Return to text.

45. Utah Code Ann. § 76-5-11(k)

"Neglect" means:

(i) the failure of a caretaker to provide habilitation, care, nutrition, clothing, shelter, supervision, or medical care; or

(ii) a pattern of conduct, without the disabled or elder adult's informed consent, resulting in deprivation of food, water, medication, medical services, shelter, cooling, heating, or other services necessary to maintain minimum physical or mental health. Return to text.

46. Vt. Stat. tit. 33 § 6902

(1) “Abuse” means:

(A) Any treatment of an elderly or disabled adult which places life, health, or welfare in jeopardy or which is likely to result in impairment of health;

(B) Any conduct committed with an intent or reckless disregard that such conduct is likely to cause unnecessary harm, unnecessary pain or unnecessary suffering to an elderly or disabled adult;

(9) “Neglect” means the lack of subsistence, medical or other care necessary for well-being. Return to text.

47. Rev. Code of Wash. § 74.34.020(9): "Neglect" means (a) a pattern of conduct or inaction by a person or entity with a duty of care to provide the goods and services that maintain physical or mental health of a vulnerable adult, or that avoids or prevents physical or mental harm or pain to a vulnerable adult; or (b) an act or omission that demonstrates a serious disregard of consequences of such a magnitude as to constitute a clear and present danger to the vulnerable adult's health, welfare, or safety. Return to text.

48. Wyo. Stat. § 35-20-102(a)(xi): "Neglect" means the deprivation, including self-deprivation, of the minimum food, shelter, clothing, supervision, physical and mental health care, and other care necessary to maintain a disabled adult's life or health, or which may result in a life-threatening situation. The withholding of health care from a disabled adult is not neglect if: Return to text.

49. Ariz. Rev. Stat. Ann. § 13-3623. Child or vulnerable adult abuse; emotional abuse; classification; exception; definitions

A. Under circumstances likely to produce death or serious physical injury, any person who causes a child or vulnerable adult to suffer physical injury or, having the care or custody of a child or vulnerable adult, who causes or permits the person or health of the child or vulnerable adult to be injured or who causes or permits a child or vulnerable adult to be placed in a situation where the person or health of the child or vulnerable adult is endangered is guilty of an offense as follows:

1. If done intentionally or knowingly, the offense is a class 2 felony and if the victim is under fifteen years of age it is punishable pursuant to section 13-604.01.

2. If done recklessly, the offense is a class 3 felony.

3. If done with criminal negligence, the offense is a class 4 felony.

B. Under circumstances other than those likely to produce death or serious physical injury to a child or vulnerable adult, any person who causes a child or vulnerable adult to suffer physical injury or abuse or, having the care or custody of a child or vulnerable adult, who causes or permits the person or health of the child or vulnerable adult to be injured or who causes or permits a child or vulnerable adult to be placed in a situation where the person or health of the child or vulnerable adult is endangered is guilty of an offense as follows:

1. If done intentionally or knowingly, the offense is a class 4 felony.

2. If done recklessly, the offense is a class 5 felony.

3. If done with criminal negligence, the offense is a class 6 felony. Return to text.

50. Neb. Stat. § 28-351: “Abuse shall mean any knowing, intentional, or negligent act or omission on the part of a caregiver, a vulnerable adult, or any other person which results in physical injury, unreasonable confinement, cruel punishment, sexual abuse, exploitation, or denial of essential services to a vulnerable adult.”

§ 28-355: “Denial of essential services shall mean that essential services are denied or neglected to such an extent that there is actual physical injury to a vulnerable adult or imminent danger of the vulnerable adult suffering physical injury or death.” Return to text.

51. The Illinois statute states: “Nothing in this Act shall be construed to mean that an eligible adult is a victim of abuse because of health care services provided or not provided by licensed health care professionals.” Il. St. Ch. 320 § 20/11 et seq. The Virginia statute says: “ No responsible person shall be in violation of this section whose conduct was . . . (v) a bona fide, recognized or approved practice to provide medical care.” Va. Code Ann. § 18.2-369(c). Of course, failure to treat pain may well fall outside that exception. Return to text.

52. See, supra note 37. Return to text.

53. Cal. Wel. & Inst. Code §§ 15657 & 15657.03. Return to text.

54. Fla. Stat. Ann. § 415.1111. Return to text.

55. Ore. Rev. Stat. §§ 124.100 – 124.140. Return to text.

56. Tenn. Code Ann. § 71-6-120. Return to text.

57. Rev. Code Wash. § 74.34.200. Return to text.

58. See, generally, Ziegler DH. Rights, Rights of Action, and Remedies: An Integrated Approach. Wash. L. Rev. 2001; 76: 67-147; Iryami R. Give the Dead Their Day in Court: Implying a Private Cause of Action for Defamation of the Dead from Criminal Libel Statutes. Fordham Intellect. Property, Media & Entertain. L. J. 1999; 9: 1083-1124. Return to text.

59. 422 U.S. 66 (1975). Return to text.

60. See Restatement (Second) of Torts § 874A (1977). Section 874A provides: “When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.” Return to text.

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This content is provided by the Project on Palliative Care Law of the Bazelon Center for Mental Health Law. For more information visit the Project's web site at www.painlaw.org.