Professor James T. O’Reilly teaches at the University of Cincinnati College of Law, and has published thirty-eight textbooks on legal issues. He is a member of the National Association of Elder Law Attorneys and is a former chair of the 16,000 member Section of the Administrative Law and Regulatory Practice of the American Bar Association. In his new book How To Protect Elders From Harm, which is part of the Oceana’s Law for the Layperson Legal Almanac Series, is a useful resource for anyone interested in learning more about protecting elders from insufficient care or maltreatment.
It is a natural human feeling to want to safeguard our parents and elderly friends from harm…
The natural first questions is: Should I complain about what I see happening with this elderly person? If you are concerned about safety or risk, or about financial fraud against an elder, yes: express your concerns. The recipients of the complaint will vary according to the situation. If a person is living alone at home, and you believe is in some danger or difficulty after speaking with him or her, consider contacting the local office of your state “Adult Protective Services.” To make it more likely that action will occur, call them with facts, names, or any other details that may facilitate their decision to investigate.
How will I know that the elder needs help? In an elderly neighbor comes to the door covered with bruises when you check in with her, this may be a signal of caregiver abuse…If you visit a nursing home and see deplorable treatment of one or more patients, request a meeting with the administrator. If this does not satisfy your concerns, then contact your health department or state long-tern care officials; if you can find the ombudsman for nursing homes, that local person should be contacted.
Will anyone act on my complaint? Yes. If you act in a calm and businesslike manner, your complaint will receive respect and attention. The more specific you are, the more likely it is than at investigation will begin. Persistence matters, but keep your actions polite and firm.
When must the responding person act on your complaint? The response can vary depending on the person contacted; unfortunately, that person may choose to ignore your complaint entirely. Bureaucrats “must act” when the law requires a response. Ombudsmen for nursing-home patients must act in accordance with their government office’s standards for investigation. Private companies and persons may ignore the complaint, if they choose, but doing so is usually bad for public relations and may induce the person complaining to bring a lawsuit.
How should I best assert my complaint? Visit or call, and be specific; in some cases, be ready to write if the ombudsman or government office requires a particular letter or standard form to be submitted.
Should complaints be initiated locally, and made to the officials of the government agency or of the company affected? Yes. The first step is the nursing-home administrator, the seniors-housing director, of the human-services agency director. Physical-abuse cases should go to the local office of Adult Protective Services or its equivalent. If the offending entity is a provider of services receiving funds form the government, like a nursing-home chain, then consider a complaint letter to the headquarters of that entity, with a copy shown and sent to the federal Office of the Inspector General…
Has this type of harm happened before, or does my case show the necessity of new regulatory protections? Sad, but true, the patterns of elder abuse are very well known. If abuse of your elderly friend or others in this nursing home looks very bad, the chances are that other situations have looked worse. Usually the shortcoming is not that the protections are missing from the rules or manuals or procedures-it’s that they are not actually being implemented. It takes time to discern what’s occurring behind the facade of dignity and caring.
What role does government have as the entity arranging or paying for services to elders? The benefit of government involvement is that its extensive paperwork requirements will create a record that specifies what happened, through what means, with what persons involved.
In practice, this means the possible civil case can be more readily proven. In some cases, the violation of the federal standard or state law will be negligence “per se,” so the injured person will win. Government also sets standards for some of the services or products used by elders and violation of those standards can be used against the defendant.
What role does government have in aiding elders-as protector of vulnerable elders or as regulator of businesses impacting them? This is one of the basic philosophical questions community leaders must decide. Protecting elders from harm requires that laws be written, rules drafted, enforcement staff must be in place, and then inspections and follow-up actions be taken. Is all this worth doing? Or must any remedy require a lawsuit? Societies that value their elders’ wisdom also value their peaceful retirement from daily workplace conflicts. Government should do what it can to reduce harms and to alleviate their consequences.
Does regulatory protection really serve elders’ needs? Yes. Government does what the market won’t do; vulnerable elderly people are not going to be protected by the free market with its deregulated and diminished “safety nets.” The very aged person-over eighty- is likely to be vulnerable, as his or her ability to self-protect had diminished with age and physical infirmity. Government regulation exists to protect the least powerful in society, and thus addresses services and products affecting the elderly.
If we can complain to the government, then why is civil litigation necessary? Complaints that trigger positive changes, with or without regulatory agency intervention, are the ideal. But sometimes it will be necessary to go beyond corrective actions, to gain compensation for harm or to ask a court to intervene in a bad situation to prevent further harm. In general, litigation make sense when a company or person cannot be persuaded to change behavior and the government has failed to act in support of an elder’s needs.
Who can sue? An injured elder could retain an attorney and bring suit. A guardian appointed by the court, or a person with a durable power of attorney, can sue on behalf of the interest of an elder. If the elder dies while the case is still going on, the executor of the estate takes over and seeks damages to be paid to the estate.
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