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Chapter 58 Geriatric Patients

Marshall B. Kapp, JD, MPH, FCLM

Elder Mistreatment Guardianship and Its Alternatives Research with Older Human Subjects

Financing Medical Care for Geriatric Patients Elder Law as a Growing Specialty

Medical advances enable more Americans to live longer than their predecessors. The segment of our population that is over 65 years old continues to increase exponen- tially. According to the National Center for Health Statistics, “During 1950 to 2000, the U.S. population grew older. From 1950 to 2000, the percent of the population under 18 years of age fell from 31 percent to 26 percent while the percent 65–74 years increased from 6 to 7 percent and the percent 75 years and over increased from 3 to 6 percent. From 2000 to 2050 it is anticipated that the percent of the population 65 years and over will increase substantially. Between 2000 and 2050 the per- cent of the population 65–74 years of age will increase from 7 to 9 percent and the population 75 years old and over will increase from 6 to 12 percent. By 2040 the pop- ulation 75 years and over will exceed the population 65–74 years of age.”1

A relatively small number (1.47 million, or 43 per 1000 population) of the over-65 population lived in nursing facilities and received their health care there in 1999. However, the likelihood of nursing home residency increased dramatically with age, ranging in that year from 194,000 residents 65–74 years old to 518,000 residents 75–84 years old and 720,000 residents aged 85 and older.2

The likelihood of developing chronic health problems increases sharply with age. Most older persons have at least one chronic condition and multiple conditions are not uncommon. The most common chronic conditions in per- sons aged 65 and older are arthritis, hypertension and other heart problems, sensory impairments, orthopedic impairments, sinusitis, and diabetes. Other problems include memory loss, dementia, and depression. Mental stress often creates serious physical complications in the aged. The major causes of death for older people are heart disease, stroke, and cancer.

Most of the generic chapters in this volume are fully per- tinent to care of the elderly, although general medicolegal concepts frequently take on special nuances as applied specifically to older persons. For instance, the requirement of informed consent to medical interventions applies to persons of all ages, but when older persons are involved, special attention must be paid to issues of decisional capac- ity and (especially when the patient is institutionalized) the voluntariness of decisions.

The current chapter does not, however, comprehen- sively discuss the particular application of generic concepts to older persons. Instead, the purpose here is to outline a few selected topics involving the intersection of law and medicine in the care of the elderly population.

ELDER MISTREATMENT

Only in the last few decades have we been willing to pub- licly admit, let alone begin to address, the phenomenon of serious mistreatment of older persons both within home and community-based settings and institutional environ- ments.3 The problem is a prevalent one4 and is by no means limited to the United States5 or to any particular racial or ethnic group.6

The definition of elder abuse and neglect is a matter of state law. Each state has enacted its own statutory schema in this arena, with substantial variation among particular definitions and procedures as a consequence.7

The National Research Council has described elder mis- treatment as:

(a) intentional actions that cause harm or create a serious risk of harm (whether or not harm is intended) to a vulner- able elder by a caregiver or other person who stands in a trusted relationship to the elder or (b) failure of a caregiver to satisfy the elder’s basic needs or to protect the elder from harm.8

These actions or inactions may take place in the elder’s own home or that of a relative, at the hands of an informal caregiver,9 or in an institutional setting.10 A single incident may constitute abuse or neglect in most states, although usually a repeated pattern is discovered and in some jurisdictions it is necessary to meet statu- tory definitions of abuse and neglect. Random criminal assaults of older persons by strangers (e.g., in the context of a robbery) generally are excluded from the category of elder mistreatment as it is being considered in this chapter.

Among the different forms of elder mistreatment are: physical (e.g., assault, forced sexual contact, overmedica- tion, inappropriate physical restraints); psychological or emotional (e.g., threats); denial of basic human needs by the caregiver (e.g., withholding indicated medical care or

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