the medical malpractice crisis, noneconomic damages
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Catherine, at age eighty-seven, had already endured a mastectomy for breast cancer and, upon admission to a local nursing home, did not have any pressure sores, but required extensive assistance from nursing home staff for all aspects of her physical care. (1) On April 22, 2000, Catherine was admitted to a hospital where it was discovered that she had two Stage IV pressure sores, both with odor and critical infection. (2) Pressure sores are “cavities of dead tissue that form in the skin … and are … prone to infection,” requiring daily skin care for those who are immobile. (3) Due to the severity of her wounds, Catherine required extensive surgery. (4) The Department of Human Services found Catherine “soaked in urine” which was “in contact with [her painful pressure sores] and raw tissue [was] exposed.” (5) Treatments ordered by her physician had not been performed. (6) Isabel, at age eighty-two, also entered a nursing home, but with Alzheimer’s disease, diabetes, hypertension, and a known history of wandering. (7) Alzheimer’s disease is “the most common form of dementia,” a progressively worsening condition often referred to as “organic brain syndrome.” (8) Dementia includes symptoms of memory changes, intellectual defects, behavioral disturbances, and “confusion concerning the performance of everyday tasks, like bill paying, cooking, personal hygiene, [and] problems with language.” (9) Aware of the symptoms of her condition, a nurse noted that Isabel was not in her room, but did not report that she was missing for one hour and forty five minutes. (10) One hour after the report was made, Isabel was found outside the nursing home, “lying on the ground, unresponsive but still breathing, fire ants were crawling on her face and neck[, and s]he was foaming at the mouth and nose.” (11) “The facility had a non-functioning door alarm monitoring system” which would have prevented “wandering residents from leaving the facility.” (12) These examples of reckless abandonment of care leave numerous questions about why and how this could have happened. However, the more controversial question is: Where is the retribution for elderly individuals who are injured under the care of nursing home staff? The logical answer would be for the individual, or his or her relatives, to attempt a lawsuit for all damages involved. Yet even under the scrutiny of the United States Supreme Court, “[s]tates may discriminate on the basis of age without offending the Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest.” (13) Otherwise, the elderly are not a suspect classification of individuals, such as those discriminated against on the basis of race or gender. (14) According to the Supreme Court, “[o]lder persons … have not been subjected to a ‘history of purposeful unequal treatment’” (15) and have not suffered discrimination reflecting “prejudice and antipathy.” (16) This renders all elderly individuals, including those under comprehensive care by nursing homes, an unprotected class of citizens under the Equal Protection Clause of the Fourteenth Amendment. More : accessmylibrary.com |