Abstract
The number of avoidable deaths of people in care homes is in the thousands per year. The numbers of those abused by carers is in the hundreds of thousands. Despite the extent of the scandal, the issue goes largely unlitigated. However, the issues are relatively straightforward and cases that are brought are generally successful.
The news has been filled with horrific stories involving abuse and unnecessary deaths of old people in hospitals and care homes across the country.
Deaths from starvation and dehydration are frighteningly common, considered to be in the region of 400–500 deaths per year according to figures obtained by the Daily Mail from the Office for National Statistics. 1 Sepsis following bed sores is another common cause of death. The National Health Service (NHS) has only recently begun to reduce the thousands of deaths per year from sepsis following methicillin resistant Staphylococcus aureus (MRSA) and Clostridium difficile infection by taking steps improving hand and ward hygiene. 2 The majority of these deaths were of the elderly. The figures are now down to about 2500 per year, from a peak of almost 10 000 a few years ago. 3 However, deaths following infection from bed sores will greatly exceed these figures. While there are no figures available for the UK, research from the USA suggests that care home bed sore sepsis causes tens of thousands of deaths every year. 4
In addition to thousands of unnecessary deaths, perhaps even more disturbing are the many stories of mistreatment and assault of older patients, especially those with dementia. Abuse is defined by the World Health Organisztion as: A single or repeated act or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person.
5
Patients left naked or left lying in their own faeces or urine soaked clothes are all too common. As is dementia patients tied to their beds to prevent them from wandering. The Department of Health reported that in the region of 150 000 dementia patients are unnecessarily treated with antipsychosis drugs each year, reducing them to a semicomatose state. 7 The Alzheimer's Society reported that this over-prescription of antipsychotics contributes to 1800 deaths per year. Such treatment is convenient for understaffed care homes when the correct treatment is by speaking to the patient and providing a stimulating environment to reduce their confusion and frustration. 8
Despite the horrific stories, litigation concerning the elderly is rare and few personal injury lawyers seek out such work. To put the above figures in context, think of the numbers of lawyers chasing the 2200 road deaths and 170 or so workplace deaths per year or who chase the small number of cerebral palsy births each year caused by events during birth.
Lawyers are perhaps put off Elder claims for the elderly by low quantum. General damages for pre-death suffering tends to attract four figure sums, with periods of pain and suffering lasting a few weeks or months. If there is a surviving spouse, the statutory bereavement award tends to be the largest head of claim. A dependency on the deceased's spouse's pensions can increase the claim. Otherwise, the cost of the funeral is often the only other loss.
However, these claims should be brought. Often, the law is straightforward and strict, with little or any defence. As a result, the vast majority of well evidenced cases settle, with the majority of awards in the £10 000–20 000 range.
Breach of duty—assaults and restraints
Following the House of Lords decision in A v Hoare [2008] UKHL 6 (and other previous cases), care homes and hospitals will be vicariously liable for intentional assaults committed by their staff as well as for negligent acts. There is seldom any defence to an assault claim.
When considering cases of patients restrained in bed, human rights arguments can also be considered. The Human Rights Commission's (HRC) investigation into the use of restraint on the elderly is worth considering.
9
The HRC concludes that:
Blanket’ restraint policies should be avoided: the assessment of risk and the decision to use restraint should be based on an individual's situation. If decisions to use restraint are taken, it must be the least restrictive option and undertaken for the shortest viable length of time. Human rights can be infringed when public authorities are excessively risk averse as well as when they fail to act to prevent risk.
Breach of duty—bed-sore sepsis
European Pressure Ulcer (EUPAP) Grading System divides bed sores into four grades. The higher the grade, the more severe the injury to the skin and underlying tissue. A grade one pressure ulcer is the most superficial type of ulcer. The affected area of skin appears discoloured and is red in white people, and purple or blue in people with darker coloured skin. In grade 1 pressure ulcers, the skin remains intact but it may hurt or itch and it may feel either warm and spongy, or hard. In grade 2 pressure ulcers, some of the outer surface of the skin (the epidermis) or the deeper layer of skin (the dermis) is damaged, leading to skin loss. The ulcer looks like an open wound or a blister. In grade 3 pressure ulcers, skin loss occurs throughout the entire thickness of the skin. The underlying tissue is also damaged. However, the underlying muscle and bone are not damaged. The ulcer appears as a deep cavity-like wound. A grade 4 pressure ulcer is the most severe type of pressure ulcer. The skin is severely damaged and the surrounding tissue begins to die (tissue necrosis). The underlying muscles or bone may also be damaged. People with grade 4 pressure ulcers have a high risk of developing a life-threatening infection (sepsis).
No tissue viability nurse will defend a case where a patient or resident has developed a grade 3 or 4 bed-sore case. For sepsis to develop, the patient must have passed through the grades from 1 to 4 without action being taken to stop the process. The failure to identify the risk of bed sores and act to prevent them is almost always a negligent act. The Waterlow system of scoring for risk is now common and the measures necessary to avoid the development of bed sores are cheap but time consuming. 10 Frequent moving of the patient is the key as well as the avoidance of long period of time lying in faeces and urine.
The only defence to a bed-sore claim is to argue that the patient could not be moved at all for medical reasons. This would be an extremely rare situation, almost exclusively limited to intensive care situations. More often than not the evidence is of gross breach of duty, with patients found by relatives in faeces and urine soaked beds and clothes.
Breach of duty—over prescription of antipsychotics
Most people with dementia experience behavioural and psychological symptoms, such as restlessness and shouting, at some point. Geriatricians, the Alzheimer's Society and others consider such symptoms can be prevented or managed without medication. Over stretched care homes frequently use antipsychotic drugs as a first resort without first identifying if other treatment is more appropriate. Department of Health research estimated that around two-thirds of these prescriptions were inappropriate in the first place. 11
Once prescribed, prolonged continued use is almost always negligent, except in the most extreme of cases. Prescribers must demonstrate regular review and cessation of prescription as soon as possible. No geriatrician will support the long-term prescription of antipsychotic medication. However, understaffed and overworked care home managers pressurize often locum general practitioners to prescribe antipsychotics to otherwise troublesome dementia patients. 12
Breach of duty—malnutrition and dehydration
No expert will defend death from malnutrition or dehydration. Feeding weak and confused elderly patients is time consuming. Too often food is laid out and then collected without being eaten. As above, witness evidence is often the key to establishing this breach of duty. However, fluid and nutrition charts should be among the notes.
Cases such as these are often complicated by infective illness causing vomiting and diarrhoea. Often these infections themselves are negligently caused, through poor hand hygiene and poor environmental hygiene.
General damages for actions leading to death
There is a wide range of awards for general damage for actions leading to death. At one end of the scale, occupational cancers such as mesothelioma, bladder, lung and bowel cancer, which death prolonged over months or even years, attract awards between £30 000 and £90 000. At the other end of the scale, death considered to be instantaneous will receive a nil award — Hicks v South Yorkshire Police (1992) 2 All ER 65.
When claiming compensation for deaths from C. difficile and MRSA infections, I found the cases concerning burn injuries leading to death to be useful comparators for period and extent of suffering. Fallon [Kemp J3–013] awarded £14,600 where the claimant died 30 days after total thickness burns covering 50% of his body. Hawkins [Kemp J3–017] awarded £6300 for death 14 days after similar injury.
A reported settlement in S v Rotherham PCT [Lawtel 31 August 2011] concerned a death following sepsis. The bed-bound patient had pressure areas which were not checked or managed and she suffered a necrotic right heel ulcer which developed sepsis in the heel and septic arthritis of the right knee, as well as skin tears and pressure sores on her buttocks. The claimant died from sepsis as a result of negligence over a 4-month period. The settlement was £8315 (updated for inflation).
There are examples of much lower awards reported. G v Bolton Hospitals NHS Trust [Lawtel 11/2/08] records a general damages award of only £250 for death from sleep apnoea over one night. Clearly, much will on facts of every case but important factors are — duration of suffering prior to death, extent of suffering and awareness of suffering.
General damages for misprescription
It is difficult to compare the reported misprescription cases with the general damages that might be awarded to patients over prescribed antipsychotics. The side-effects of antipsychotics can be very harmful and can rob individuals of their quality of life. Side-effects include excessive sedation, dizziness and unsteadiness, which can lead to increased falls and injuries, as well as parkinsonism (tremors and rigidity), body restlessness, reduced wellbeing, social withdrawal and accelerated cognitive decline. There are also significantly raised mortality risks for stroke and pneumonia. 13
The reported cases on misprescription concern a variety of different drugs. M (A Child) v Mistry Dispensing Chemists ([2002] 2 Q.R. 18) (Kemp L5–010) involved the negligent dispensing of antidepressants causing headaches, nausea, dizziness, loss of appetite, constipation and thirst. There was a full recovery within 3–4 weeks and an award for general damages of £1340 (updated). Ward v Boots (Lawtel 4/5/2011) involved a settlement of a case for over prescription of Zopiclone (a drug given to assist sleep), resulting in hallucinations, trembling and anxiety for approximately 4 weeks. The settlement for general damages was £1580 (updated). C v N (Lawtel 24/08/2011) is another reported settlement, this time for over prescription of Sulpiride (an antipsychotic commonly prescribed to treat schizophrenic conditions) causing tremors, confusion and mobility problems for 6 weeks and adjustment disorder for maximum of 6 months. The reported settlement for general damages was about £5200 (updated).
Evans v NPA (Lawtel 17/6/2005) reported settlement for over prescription of Phenytoin (an antiepileptic drug) causing dizziness, confusion and involuntary tremors, incoherent speech and poor concentration. The claimant fell twice and suffered about 1 year of symptoms, with the general damages settled at £8745 (updated).
General damages: bed sores
Lawtel contains a large number of reported settlements, largely concerning hospital patients and rehabilitation centres. JB v Ashbourne Ltd (Lawtel 17/11/2005) reported settlement for a 49-year-old claimant suffering as a result of the development of pressure sores and dehydration while he was resident at the defendant's care centre between June and July 2001. Hospitalized for 3 1/2 months. The pressure sore took approximately 1 year to heal. The award for general damages was £20,184 (updated). Gallagher v Heart of England NHS (Lawtel 16/12/2009) reported settlement for £19,840 (updated) for pressure sores following a period in hospital which resolved within approximately 12 months.
The remaining cases are all within a similar range. S v Rotherham PCT [Lawtel 31/8/2011] concerning a death following sepsis from bed sores was considered above.
Special losses
For fatal cases, the special damage claim for elderly patients can often be limited to the cost of the funeral. If there is a surviving spouse, then the statutory bereavement award is likely to be the highest head of claim, supplemented perhaps by a dependency on pension and benefits. For those paying privately for care homes, breach of contract claims for fees can be substantial.
Can low value claims be profitable?
Around the country, many firms spend considerable time and effort on low value industrial disease claims. Noise induced hearing loss claims in particular can be horribly complicated, with an expert report required at the outset from an ENT (ear nose and throat) surgeon and then an engineer's report if liability remains in dispute. Further reports can be necessary from audiologists and hearing aid specialists. The quantum is typically below £15 000 and the claims always suffer from limitation concerns. And yet these cases are brought by the hundreds. If such claims can be brought, then there seems no reason why lawyers cannot turn their hand to elder abuse claims.
There is no doubt a crises in the care for older people in this country. While the numbers of older people continue to increase, the current government's austerity agenda is cutting the funds to provide care. Many local councils are shutting their own care homes and contracting out to the private sector. Competitive tendering results in downward pressure on staff costs and facilities. By forcing care home owners and hospital managers to face litigation by elderly patients and their families, then the cost of this negligent treatment will have to be met. Otherwise, the abuse of older patients and care home residents is likely to increase as time goes by. It seems unlikely in the current climate that anything other than litigation will force change in this sector.