Withholding Medicine

Our Attorneys Fight Back Against Nursing Homes That Withheld Medicine from Your Loved Ones 

As people get older, they may become more dependent on others in their lives to help them. For instance, a daughter may need to run errands and get groceries for her aging mother, or a nursing home resident might heavily rely on the home’s staff to provide appropriate medical attention and help with day-to-day activities.

In elder abuse cases where a caretaker, family member or staff member does not take the necessary steps to ensure an older person’s safety and health (both mental and physical), negligence can be a contributing factor and can lead to serious charges and penalties under California law.

Medication Errors in the Elderly

Medication errors are a common form of nursing home negligence, and in some cases, can amount to abuse. It may seem like administering medicine should be quite a simple task, but medication errors occur all too often. A study published in the Journal of the American Geriatrics Society found that medication errors in nursing homes affect 16% to 27% of residents. The actual number is likely much higher, as many instances of medication errors go undetected or unreported. While most medication errors produce mild to no harm, severe medication errors can cause permanent disability or even death. Contact our California elder abuse lawyers if someone you love has been negatively affected by medication errors.

Negligence in California Nursing Homes and Assisted Living

Negligence can be deliberate or accidental, but in either instance, the negligent party is acting in a way that does not benefit the victim and may even cause significant harm. When determining whether a caretaker was negligent, it is important to first consider the duty of care that the accused abuser owed to the victim. Anyone in a position of caregiving or assistance has a responsibility to act in their patient’s best interest and to be responsible and proactive in taking care of that individual.

For example, a nurse in an assisted living home has a responsibility to take care of the residents under his or her watch by bringing them food and drink, giving them basic medical care, administering medications as needed, and much more. If the nurse fails to uphold those responsibilities in any way, he or she can be considered negligent. This could include forgetting to bring resident water and/or drinks during the day, or deliberately withholding medical care when a resident needs it. Each action is on the extreme end of the spectrum, but both cause harm to the resident and violate the nurse’s responsibility to take care of the resident.

Our California Elder Abuse Lawyers Handle Medication Errors as a Result of Negligence

Most medication errors are the result of negligence. In nursing homes, administering medication is a significant undertaking for staff and requires close communication between patients’ doctors and the nursing home staff handling the medication. Medication errors can occur at any point along this chain of command and can be committed by anyone — doctors, nurses, certified nursing assistants (CNAs) orderlies, and technicians. Some examples of negligent medication errors include: 

• Prescribing a medication that may have adverse reactions with other drugs the patient is taking
• Administering the wrong medication 
• Administering the wrong form of medication (i.e., pill vs. liquid) 
• Using an incorrect administration technique (i.e., oral vs. intravenous) 
• Administering expired medication
• Administering too much or too little of a particular medication
• Skipping doses of a medication
• Administering doses of medication at the wrong time
• Administering a medication required to be taken with food on an empty stomach 
• Slicing or cutting pills that should not be split 
• Failing to document the administration of a medication 
• Failing to monitor the patient after administering the medication when required 

There are many reasons why medication errors occur, but most can be traced back to the causes of general nursing home negligence. Understaffing, improper training, miscommunications, and staff burnout all contribute to errors in administering medication and many other forms of nursing home neglect.

Deliberate Medical Negligence

Receiving prompt, accurate medical care and attention is critical for many older people in maintaining their quality of living and their health status. When this care is withheld for whatever reason, it can cause serious illness or even death.

A huge part of this medical care is daily medications. Many older people have pills they need to take every day at specific times to keep them going and to control any medical conditions, age-related or otherwise. If people who need medication do not receive it, there could be an issue of neglect or abuse. Administering medication properly is part of the responsibility placed on a caretaker, but if a caretaker repeatedly forgets to provide medication, even if it is done accidentally, this puts the older dependent at risk. Even worse is when the caretaker refuses to provide medication on purpose — such acts can certainly be deemed neglect and abuse.

Intentional Medication Errors

Intentional medication errors are less common than the negligent variety, but they are a major form of nursing home abuse. Typically, deliberate medication errors occur when the perpetrator wants to punish or subdue the victim or as a show of power. Some examples of intentional medication errors include: 

• Withholding medication 
• Over- and under-medication —  including potentially fatal drugs such as fentanyl and morphine
• Administering a medication the victim has refused 
• Administering a medication the perpetrator knows will harm the victim 
• Use of medication as a form of restraint 

Intentional medication errors are considered very serious breaches of California Patients’ Rights and can expose the perpetrators to stiff civil and criminal penalties. In some cases, they can lead to severe long-term consequences or even death. If you are aware of intentional medication errors being committed in a hospice, assisted living facility or nursing home, you should consider speaking to our California nursing home abuse lawyers as soon as possible to stop the practice and prevent further harm. 

Why Do Medication Errors Occur?

Medication errors occur for a variety of reasons. One of the most common is honest mistakes. Many nursing homes are chronically understaffed and do not have the resources they need to care for their residents adequately. These conditions lead to overworked staff and neglect, which makes careless mistakes more likely. Another common cause is miscommunication between a resident’s treating physician and nursing home staff. For example, a resident may have a complex dosing regimen wherein he or she needs to take a particular medication multiple times a day or maybe unable to take one medication if he or she has already taken a different medication that day. Such details can easily be lost in translation while making their way through the medical bureaucracy. And in some cases, there is a more sinister explanation. For example, unscrupulous nursing home staff may be tempted to sedate residents with psychoactive drugs when a resident becomes “too much to handle” or intentionally administer a medication that could cause resident harm. Intentional use of sedatives or other psychotropic drugs may constitute “chemical restraint,” which is a form of elder physical abuse.

Can Nursing Home Staff Make Medication Decisions for Residents?

Generally, no. A nursing home resident’s doctors prescribe medications as part of a comprehensive course of treatment for the patient. While nursing home staff may be permitted to administer certain over-the-counter medications (e.g., pain relievers, antihistamines, etc.), they are not authorized to deviate from residents’ prescribed treatment plans.

Can Nursing Homes and Assisted Living Facilities Be Held Liable for Medication Errors?

Yes, nursing homes may be held liable for the actions of their staff. The most common legal theory of liability in medication error cases is negligence, which requires the plaintiff to show that nursing home staff behavior fell below the relevant standard. To illustrate: Nursing home staff owe their residents a duty to administer medication correctly. If a staff member fails to administer medication correctly when a reasonable staff member would have done so in the same or similar circumstances, the staff member may be liable for negligence. If the medication error was intentional, a plaintiff could rely on the laws related to intentional torts, such as elder physical abuse by chemical restraint, assault, or battery. Nursing homes may also be held liable through the theory of negligent hiring, in which the plaintiff argues that the nursing home failed to properly vet its employees and should have known that the employee in question would pose a risk to its residents.

What Are Some Possible Effects of Withholding Medication?

The possible effects of medication errors range from momentary discomfort and inconvenience to death. The specifics of each case will depend upon the patient’s condition, the type of medication they are taking, the severity of the error, and the length of time the error is sustained. General negative outcomes of medical errors can include:

• Worsening of the underlying condition the medication is intended to treat
• Severe side effects and allergic reactions
• Injuries sustained from administering contraindicated medications
• Contributing to or causing premature death

If you suspect that someone you care about is being improperly medicated, you should contact a California medication error attorney.

Determining Liability for Medication Errors

Nursing homes that incorrectly administer medication to their residents in such a way that causes harm may be held liable. Unfortunately, it is not always easy to nail down the particulars of why a particular member of nursing home staff erred, but it usually boils down to one or more of the following theories of liability:

• Negligence: Most medication errors are not intentional. Rather, they are the result of careless mistakes that could have been avoided. Because nursing homes have a duty to prevent harm to their residents — which includes administering medication correctly and refraining from withholding medicine — they may be liable if staff members breach that duty and the breach results in harm.
• Negligent hiring: Nursing homes have a duty to hire and train workers who are capable of providing the appropriate level of care to their residents. Unfortunately, nursing homes are not always as diligent as they should be vetting applicants, which can cause incompetent or otherwise unqualified individuals to be hired. If one of those individuals causes harm by incorrectly administering medicine, the nursing home be held liable under a theory of negligent hiring.
• Intentional torts: Nursing home staff who act intentionally, such as by intentionally withholding medicine, using sedatives or other psychotropic drugs as a form of chemical restraint, or administering a medication a staff member knows will cause harm, may be held liable for intentional torts such as assault and battery. They may also face criminal liability in some circumstances.

If you know that medication errors are occurring but are unsure of how to hold a nursing home liable, please contact a California medication error attorney.

Do You Need an Attorney? And Why Should You Choose Us?

It is not always necessary to hire an attorney when there has been a medication error in a nursing home. For example, if it only happens once and the nursing home catches the error, the incident likely will resolve itself. However, if it is part of a larger pattern of behavior or occurs frequently, you may need to involve an attorney who can begin legal proceedings against the nursing home. If you decide you would like to hire an attorney, you have many to choose from, and we encourage you to shop around. However, the attorneys at Evans Law Firm, Inc. have an extensive track record of success in holding nursing homes liable for injuries to their residents. As a law firm that focuses primarily on elder law, we have the depth and breadth of experience handling elder law matters in California courts that are difficult to find elsewhere.

Withholding Medicine Is Not Exclusively a Nursing Home Problem

Medication errors are most commonly associated with nursing homes, but the problem is actually far larger. Private caregivers, including members of an elderly person’s own family, are also capable of making mistakes (and worse). Liability for caregivers is based on many of the same legal theories as those for nursing homes (i.e., negligence and intentional torts), but medication errors can be more difficult to uncover in private settings. If you suspect that a caregiver is withholding medicine from someone you care about, you should consider speaking to a California medication error attorney as soon as possible to discuss legal options for having the caretaker removed.

Fight Back Against Assisted Living and Nursing Home Abuse with Our Skilled Attorneys

At Evans Law Firm, Inc., we work to protect victims of elder abuse from further negligence and mistreatment and help them bring their abusers to justice. Our San Mateo County elder abuse lawyers are well-versed in California law and know how to prove negligence and misconduct when it occurs. For more information or to discuss your case, contact us online or by phone at 415-441-8669 today. Our offices are conveniently located in Los Angeles and San Francisco.