Guarding Against Liability for Negligence in the Healthcare Industry

Normally in the healthcare industry "negligence" refers to medical malpractice or a failure to provide proper health related services. Important to note is that it can also refer to the breach of any legal standard of care or standard of conduct.  The law of negligence requires that persons conduct themselves in a manner that conforms to certain standards of conduct. Where those standards are violated or breached by a person, the law requires a person to compensate someone who is injured as a result of an act or omission.

The Restatement (Second) of Torts¹  defines negligence as "conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm." Negligence generally consists of five elements, including:

• A duty of care owed by the defendant to the plaintiff;
• A breach of that duty;
• An actual causal connection between the defendant's conduct and the resulting harm;
• Proximate cause, which relates to whether the harm was foreseeable; and
• Damages resulting from the defendant's conduct.

In many cases, a statute or other law may establish specific duties, such as the duty of a person to act in certain circumstances.  For example, some professionals, such as doctors and lawyers, are required to uphold a standard of care expected in their profession. When a professional fails to uphold such a standard of care, they may be liable for malpractice, which is based on the law of negligence.
One such statute that creates a duty of care is under Ohio Revised Code section 5101.60-61.  Pursuant to these sections,
 
"any attorney, physician, osteopath, podiatrist, chiropractor, dentist, psychologist, any employee of a hospital as defined in section 3701.01 of the Revised Code, any nurse licensed under Chapter 4723. of the Revised Code, any employee of an ambulatory health facility, any employee of a home health agency, any employee of a residential facility licensed under section 5119.22 of the Revised Code that provides accommodations, supervision, and personal care services for three to sixteen unrelated adults, any employee of a nursing home, residential care facility, or home for the aging, as defined in section 3721.01 of the Revised Code, any senior service provider, any peace officer, coroner, member of the clergy, any employee of a community mental health facility, and any person engaged in social work or counseling having reasonable cause to believe that an adult is being abused, neglected, or exploited, or is in a condition which is the result of abuse, neglect, or exploitation shall immediately report such belief to the county department of job and family services. This section does not apply to employees of any hospital or public hospital as defined in section 5122.01 of the Revised Code."

(Emphasis added.)  The statute also explains that the reports made shall be made orally or in writing except that oral reports shall be followed by a written report if a written report is requested by the department. O.R.C. section 5101.61.  Written reports shall include:

• The name, address, and approximate age of the adult who is the subject of the report;
• The name and address of the individual responsible for the adult's care, if any individual is, and if the individual is known;
• The nature and extent of the alleged abuse, neglect, or exploitation of the adult;
• The basis of the reporter's belief that the adult has been abused, neglected, or exploited.

If one of the individuals identified in the statute have reason to believe an adult is being exploited,²  he or she is required to (shall) report the exploitation.  A duty exists.  The failure to report said exploitation constitutes a breach of that duty.  The question remains whether that failure to report becomes a causal connection between the harm to the elder adult and the breach.  If the breach of duty results in the continued abuse or exploitation, the argument can be made. 

The analysis then turns to whether the failure to report exploitation of an elder adult is the proximate cause, resulting in actual damages.  Certainly it is foreseeable that allowing exploitive conduct to go unreported will result in a financial loss to an elder adult.  So while the Ohio Revised Code does protect a person with reasonable cause to believe that an adult is suffering abuse, neglect, or exploitation, who makes a report³  or who testifies in any administrative or judicial proceeding arising from such a report, from civil or criminal liability on account of such investigation, report, or testimony, except liability for perjury, it does not address liability resulting from the failure to make such a report. 

This leaves a gaping hole when guarding against liability for negligence in the health care arena.  Reporting elder abuse, including financial exploitation, is a real concern with real consequences.  For question or comments on this topic, please contact an attorney in our Healthcare Practice Group at WWR-HealthCare@weltman.com.