Your Duty As A Healthcare Professional To Report Elder Abuse

Scott H. Harris
Director, Litigation Department
December 1, 2007

You have known and treated Mrs. Merriweather, one of your elderly patients for many years. Mrs. Merriweather has been in to see you several times in the last year and you have noticed that her mental acuity has declined. She has trouble remembering current events and seems generally confused about routine matters. You have talked to her about assisted living, but she won’t hear of it. She has lived in the same community her whole life, attended the same church and her neighbors are her close friends.

Today she presents with complaints of being over tired, having trouble sleeping, and is tearful. You probe a little as to what is troubling her. She tells you that she has been told by her grandniece that she should begin looking for an apartment because the grandniece and her husband are planning to sell her home of forty years. You ask some more questions. Mrs. Merriweather is not sure, but she thinks she might have signed over the deed to her home to her grandniece, but only after her nephew promised her that she could live in the apartment on the second floor of the home for as long as she was able. You ask about her other financial resources and she responds by saying that she gave her nephew her power of attorney and she isn’t sure what she has, but thinks she got a note from the bank yesterday informing her of an overdraft of her checking account. She volunteers that she doesn’t want to talk to her nephew about this because he will just get angry and tell her that she must not trust him.

After this conversation, you are even more concerned about your patient and worry that her nephew may be trying to take advantage of her. Do you have a legal duty to report this to anyone? Under the laws of New Hampshire, Maine and Vermont, you may.

Although the laws vary slightly by state, they all require health care providers, including but not limited to doctors, dentists, psychologists, nurses, hospitals, nursing homes, and home health care agencies, to report known or suspected abuse, neglect or exploitation of an incapacitated, dependent or vulnerable adult.

The New Hampshire and Maine statutes require that the abuse or suspected abuse be reported immediately to the appropriate state agency, and the Vermont statute requires that a report be filed with the appropriate agency within forty eight hours. An appropriate state agency would be the New Hampshire Department of Health and Human Services, the Vermont Department of Disabilities, Aging and Independent Living, and the Maine Bureau of Elder and Adult Services.

!The first question you ask yourself is: Do I have enough?

Under the statutes, abuse includes emotional, physical and sexual abuse; neglect is an act or omission that deprives a person of essential services or needs; and exploitation is the illegal or improper use of an incapacitated, dependent or vulnerable adult’s person or property for another person’s profit or advantage. An incapacitated or dependent adult is a person eighteen years of age or older (or an emancipated minor) who has some physical or mental disability that impairs his ability to care for himself. Under the Vermont statute, reporting is required for a vulnerable adult who, in addition to being incapacitated, must also be unable to protect himself from abuse, neglect or exploitation.

In this case, you know that Mrs. Merriweather’s mental capacity has declined and although you don’t know for certain that Mrs. Merriweather has been exploited, you suspect, from your conversation with her, that she has. You think maybe you should report this but you’re still not sure. You ask yourself, what are the consequences if I don’t report?

The penalties imposed by these statutes vary by state. In New Hampshire, a person who knowingly fails to make a report is guilty of a misdemeanor. Under Maine law, a knowing failure to report is a civil violation for which a fine of up to $500 may be imposed. Further, any licensed professional who violates the Maine statute must be reported to the appropriate licensing organization. In Vermont, a willing violation of the statute may be sanctioned by an administrative penalty of up to $500 for each twenty-four hour period for which a report is not made, up to a maximum of $5,000.

You’re thinking that you should report this but Mrs. Merriweather asked you not to tell anyone about it. Do you have to report it anyway?

The answer, most likely, is yes. The New Hampshire law provides for an exception to reporting only for an attorney who has learned of the abuse through privileged communication. All others are required to report even if the information would otherwise be privileged. The Maine law provides an exception only where the reporter has learned of the abuse through the professional treatment of the abused person, the abused person came to him for a problem related to the abuse, the abused person is not incapacitated, and his life or health is not immediately threatened. Vermont provides no exception for the reporting of privileged or confidential information.

You also wonder, what if I report this and I’m wrong? Can I be held liable to those I reported as suspected abusers?

If you act in good faith, the answer, generally, is no. The laws of all three states provide immunity from civil liability for those who make a report under the statute in good faith, and New Hampshire and Vermont provide immunity from criminal liability as well.

Finally, you ask yourself, what if I don’t make a report and Mrs. Merriweather loses all her assets to her nephew, could I be liable to Mrs. Merriweather or her heirs or creditors for that loss?

The reporting laws do not specifically allow the abused person or others, such as heirs or creditors, who may be injured by the failure to report to bring a civil action against a party who failed to report. Further, due to the fairly recent enactment of these laws, there are no cases addressing the liability of health care providers for injuries or damages sustained due to a failure to report.

While generally there is no legal duty to protect someone from the criminal acts of others, courts have imposed such a duty on health care providers, particularly doctors and therapists, due to the special relationship between them and their patients. Further, in analogous cases regarding child abuse reporting laws, courts have held that an action for medical malpractice can be grounded in the failure to report suspected child abuse, if that failure does not conform to the ordinary skill and care expected of a physician. Moreover, courts have allowed the violation of child abuse reporting statutes as evidence of negligence in such an action. Therefore, it is possible that a health care provider could be held liable for injuries or damages suffered due to a failure to report.

As the elderly population continues to grow, so will the number of Mrs. Merriweathers. Health care providers should develop risk management procedures to ensure that they comply with the reporting statutes when dealing with such patients, not only to avoid the statutory penalties, but also to avoid potential lawsuits.