Most people are well aware of the fact that if a hospital or doctor makes a mistake, or is negligent, a medical malpractice claim can be made. However, when hospice services fail to provide care, or provide substandard care, individuals, family members, and loved ones, are often confused about possible legal remedies. Shockingly, this occurs more often than the hospice industry would like to admit.
People in hospice care generally must be terminally ill and seeking palliative care, meaning medical treatment that is not intended to cure the problem, but rather just reduce or relieve associated pains. Hospices contract with these individuals to provide palliative care, such as the administration of strong pain medications, physical therapy, and even helping with hygiene and other matters. When a hospice fails to provide care, or is negligent in the care provided, there may be legal claims depending on the resulting injury.
Wrongful death claims are often perceived as impossible claims against a hospice because the patients in hospice are terminal. However, this is myth. If a hospice’s actions, or failures, were the cause of a loved one’s death, they may be held liable.
For example, if a hospice fails to empty a catheter bag, and this failure results in an infection that the patient succumbs to, this may provide the basis for a wrongful death claim.
Breach of Contract
When a person goes into hospice care a contract or agreement usually must be signed. The hospice agrees to provide certain services, and the patient, family member, or guardian, agrees to pay. If the services just are not provided, or not provided according to the terms, a breach of contract claim can be filed for the hospice violating terms of the agreement. In addition to getting a full or partial refund on the contract price, a person may be entitled to consequential damages as well. These claims are less suited to cases that involve physical injuries, distress, and other non-economic damages.
Ordinary and Gross Negligence
When an injury results due to a hospice service’s actions, or failures, a claim for negligence may be possible. Negligence claims essentially require an injured person to prove that their injury was the result of another person’s, or entity’s, failure to uphold a duty, or obligation. In a case against a hospice, generally, the service will owe a duty to the patient to not injure them while providing care, such as by dropping them, delaying treatment, over administering medication, or administering the wrong medication. If the failure to uphold the duty is the result of shockingly bad conduct, it could rise to the level of gross negligence.
When a hospice service agrees to provide the administration of medical treatment, such as medication, physical therapy, in-patient or continuous in-home nurse care, or even diagnostic monitoring, the potential for a medical malpractice claim exists. Often, medical malpractice claims are referred to as medical negligence claims because the claims are somewhat similar, though the former is indeed much more complex and nuanced. Basically, a medical malpractice claim against a hospice alleges that the service, or a medical practitioner, such as doctor, nurse or qualified/certified caregiver, failed to act with the same level of care as a reasonable service or medical professional would have acted in the situation. Administering the wrong medication, or failing to ensure proper training of staff, are easy to understand examples of medical negligence.
In addition to claims surrounding the hospice services themselves, individuals in hospice care are also at risk of elder abuse. Though these claims are rare, hospice patients are often vulnerable and elderly, and as such, they can be easy targets for an unscrupulous hospice worker. Types of elder abuse include physical assault, financial abuse, and neglect or abandonment. Elder abuse claims can be pursued both criminally and civilly.
Who Can File a Claim?
Depending on the type of claim, and your state’s laws, who can file a lawsuit on behalf of an injured, or deceased, hospice patient will vary. Generally, in a wrongful death matter, the spouse, children, or next of kin, or the individual’s estate, will be able to file the action. But, if the injured patient is alive, the hospice patient themselves, or their guardian, can file a lawsuit. However, after the individual dies, state laws treat posthumous injury claims differently.