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Steven J. Klearman
Steven J. Klearman
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Ageism and Medical Malpractice

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In a new article courtesy of AAJ, attorneys Elizabeth Faiella and Peter Gulden examine the issue of “ageism” in health care and litigation.

They write, among other things:

When the plaintiff has suffered injury because of a doctor’s failure to diagnose cancer or provide adequate treatment, the lawyer can count on jurors to hold certain biases. They have been conditioned to believe that medical negligence plaintiffs bring frivolous claims against heroic physicians who can’t be blamed for their inability to save the patient from a disease’s inevitable progression. Seasoned plaintiff lawyers know these biases well and welcome the chance to show the jury just how wrong these attitudes are.

Elderly cancer patients regularly face negligence, and when the plaintiff is elderly, another bias enters: ageism. Ageism is directly responsible for incomplete examinations, delayed diagnoses, and undertreatment of these patients.

Many Americans regard the elderly in a less-than-charitable light. People assume that because old people typically don’t work, they aren’t “contributing to society,” and their days of achievement are long over. Their lives are spent watching television, waiting for visitors, and perhaps slipping in and out of dementia, awaiting a fast-approaching death.

This view of the elderly makes every aspect of a medical malpractice case more difficult. It significantly reduces potential damages because a jury’s assessment of damages, both noneconomic and economic, is often guided by the patient’s life expectancy.

The standard of care is also affected. What is clear malpractice in the case of a younger plaintiff is often less clear when the plaintiff is elderly. Causation, too, becomes cloudier. The presence of other medical conditions, along with the weakness and fragility of old age, can complicate the case.

Defense attorneys often take advantage of ageist attitudes. Obviously, no defense lawyer would overtly disparage an elderly plaintiff because of advanced age or failing health. However, he or she might subtly seek to cultivate ageist thinking among jurors, using rhetoric and the testimony of medical experts to exploit this bias…

We are a nation of ageists. That our laws specifically forbid discrimination against the elderly is a testament to the prevalence of this phenomenon in American society. Indeed, a list of the books in which ageism’s influence is discussed would itself fill a book.
Elderly cancer patients regularly face negligence, and when the plaintiff is elderly, another bias enters: ageism. Ageism is directly responsible for incomplete examinations, delayed diagnoses, and undertreatment of these patients.

Many Americans regard the elderly in a less-than-charitable light. People assume that because old people typically don’t work, they aren’t “contributing to society,” and their days of achievement are long over. Their lives are spent watching television, waiting for visitors, and perhaps slipping in and out of dementia, awaiting a fast-approaching death.

This view of the elderly makes every aspect of a medical malpractice case more difficult. It significantly reduces potential damages because a jury’s assessment of damages, both noneconomic and economic, is often guided by the patient’s life expectancy.

The standard of care is also affected. What is clear malpractice in the case of a younger plaintiff is often less clear when the plaintiff is elderly. Causation, too, becomes cloudier. The presence of other medical conditions, along with the weakness and fragility of old age, can complicate the case.

Defense attorneys often take advantage of ageist attitudes. Obviously, no defense lawyer would overtly disparage an elderly plaintiff because of advanced age or failing health. However, he or she might subtly seek to cultivate ageist thinking among jurors, using rhetoric and the testimony of medical experts to exploit this bias.

Nationally, plaintiff attorneys have only a 37 percent chance of winning a medical malpractice case.2 Why, then, should a trial lawyer expend resources on a case that is almost certain to be more difficult to win than the average? There are two reasons: because the elderly need us, and because these cases can be won.

We are a nation of ageists. That our laws specifically forbid discrimination against the elderly is a testament to the prevalence of this phenomenon in American society. Indeed, a list of the books in which ageism’s influence is discussed would itself fill a book. Knowing this and understanding how ageist attitudes affect the care of the elderly can help your case succeed.