The Newest Tort: Elder Care Abuse

By Paul M. Iacono

When I first read the news item regarding the five Manitoba families that had launched litigation against a retirement home healthcare corporation. I thought immediately about my own experience as a son, and a son-in-law dealing with aging and infirm loved ones. I also thought of my mediation practice where these kinds of cases are starting to trickle in; and thinking about the litigation setting: the reality is, “there is a slow train coming.”

As I see it the long-term care industry must bolster their defenses on two fronts. The first and most obvious, is dealing with residents who suffer from dementia, and are doing violence, and even killing other patients. This is more of a supervision, isolation, or surveillance issue. Once a resident, is discovered to be violent and aggressive, that individual must be cordoned off from the larger group. They must be monitored with electronic devices or watched by security staff using surveillance cameras. This increases cost, because it leads to an increase in equipment and staff.

The second and more complicated issue is lapses in the provision of health care. Based on the most recent census, statistics Canada tells us that there are 1.3 million individuals aged 80 and older, while 6500 individuals were aged 100 and older. From 2015 to 2021 the number of seniors is projected to exceed the number of children aged 14 and younger for the first time ever.

It is very easy to create a business plan, go out and raise money to start a retirement, healthcare facility. It is very easy to construct a convincing argument that will attract investors. The population is aging, the number of people over the age of 65 is increasing quickly. The bottom line is this: the bricks and mortar, and the equipment, are the easiest part of the equation. The real challenge is developing a plan to deliver a very high quality of healthcare to an increasing number of people. Even more important is the right mix of personnel to deliver this level of care.

Keep in mind, that as the number of seniors increases, there is something else going on in the healthcare field. Our hospitals do not have enough beds for patients who require long-term care. These patients are being pushed out of acute care hospitals, into what are really retirement homes, these facilities, are sometimes unable to deliver the level of care required. These patients have complex health issues both physical and mental, requiring a higher level of sophisticated care. This increasing level of acuity that the retirement homes are facing creates the need for different strategies and care planning. This also creates a need for different kinds of personnel with varying levels of expertise.

It’s a perfect storm. As time passes, there are more people going into hospitals, hospitals that have fewer beds to receive them. Once in there, they are shown the exit as quickly as possible, but when they leave for the retirement home, they are still very ill.

Given this reality, what will happen? There will be more litigation. Tort law will do what it historically has done; “liability equals reliability.” The healthcare facilities need to figure out how to deliver this care; otherwise the volume of litigation will swamp them. Unfortunately, the problem will escalate because according to statistics relating to demographics the population bulge that everyone talks about has not hit yet.

One simple solution might be, to simply increase the number of nurse practitioners that they employ. These are trained individuals who can work with a doctor and prescribe medical treatment. They can be supported by RPNs and PSWs. The RNAO has recommended one registered nurse for every hundred residents in their latest submissions to the Retirement Homes Act but it does not appear to have been accepted. The RNAO, continues to recommend a minimum staff mix in retirement homes of one RN working full-time equivalent per hundred residents and one full-time equivalent registered practical nurse (RPN) per 50 residents for homes that provide one care service or higher.

So ultimately the staff mix by professional qualification must be analyzed and examined. Perhaps even considering having a full time MD on staff or as a readily available consultant would be a good idea. It seems that there is an obvious need to do this sooner rather than later.

Otherwise what will happen, is that the number of lapses will increase and some of these will be tortious, falling short of the standard of care. As with everything in our health care system now that we know the problem exists, with some careful planning and out of the box strategies we can solve these problems. “An ounce of prevention is worth a pound of cure.”