TITLE ‘Failure to Thrive,’ or a Failure to Investigate?
https://www.nytimes.com/2024/05/13/science/medicine-geriatrics-failure-thrive.html
EXCERPT: Just as pediatricians were beginning to challenge the wisdom of this term, the use of “failure to thrive” spread to a new field, geriatrics. In 1976, three neurologists noted the similarity between this “well-defined pediatric syndrome” and a pattern of muscle wasting and cognitive decline in some of their older patients that led to sudden death. Before long, adult “failure to thrive” had become an official diagnosis and a research priority for the Institute of Medicine. Like a virus jumping from species to species, it had made the jump across specialties. And in this field, too, problems soon appeared.
Geriatrics is a field of sleuthing. To solve medical enigmas, doctors must become detectives, teasing out the effects of overlapping causes that include chronic conditions, acute injuries, social factors and the normal process of aging. It is a challenge that tests the patience of many doctors; the number of certified geriatricians in the United States, now just over 7,000, has been decreasing since 2017.
By masquerading as a diagnosis, the term “failure to thrive” cuts that sleuthing process short, shutting down inquiry before doctors can determine the real cause, said Dr. Clara Tsui, a geriatrician at St. Paul’s Hospital in Vancouver, British Columbia. Last month, she saw the label in the medical notes of an 82-year-old man with Alzheimer’s, who had fallen and hit his head. Even though a brain scan showed internal bleeding, the man had been diagnosed only with “failure to thrive” — which, Dr. Tsui noted, “is not a diagnosis at all.”
Dr. Martha Spencer, a geriatrician and colleague of Dr. Tsui at St. Paul’s, called the phrase vague, demeaning and ageist. “It baffles me as to why it’s lingered so long,” she said.
In 2020, Dr. Spencer and Dr. Tsui led a study that found that older patients who were given the label “failure to thrive” waited significantly longer to be admitted to a hospital. Once admitted, these patients experienced longer hospital stays, which are known to increase the risk of infection and other complications. By the time these patients were released, most of them — 88 percent — had received specific diagnoses, such as kidney failure or severe dehydration.
In other words, the authors concluded, the “failure” label tended to mask treatable illnesses, while burdening the patient with unnecessary delays in their care. A diagnosis of “failure” could become a self-fulfilling prophecy, leading doctors to assume that they were just another older patient on the inevitable path to decline. (Similarly, researchers have found that “acopia,” a bit of medicalese that literally means “not coping” and is still sometimes used in the U.K. and Australia, often leads doctors to overlook acute illnesses.)
The term is the diagnostic equivalent of throwing one’s hands up and saying there is nothing more to do, said Dr. Catherine Sarkisian, a geriatrician at the University of California, Los Angeles, School of Medicine: “‘We’re done here, you’re already going down the drain.’”
TITLE: Nursing Homes Wield Pandemic Immunity Laws To Duck Wrongful Death Suits
https://kffhealthnews.org/news/article/nursing-home-pandemic-immunity-wrongful-death-lawsuits/
EXCERPT: KFF Health News found that more than 1,100 covid-related lawsuits, most alleging wrongful death or other negligent care, were filed against nursing homes from March 2020 through March of this year.
While there’s no full accounting of the outcomes, court filings show that judges have dismissed some suits outright, citing state or federal immunity provisions, while other cases have been settled under confidential terms. And many cases have stalled due to lengthy and costly arguments and appeals to hash out limits, if any, of immunity protection.
In their defense, nursing homes initially cited the federal Public Readiness and Emergency Preparedness Act, which Congress passed in December 2005. The law grants liability protection from claims for deaths or injuries tied to vaccines or “medical countermeasures” taken to prevent or treat a disease during national emergencies.
The PREP Act steps in once the secretary of Health and Human Services declares a “public health emergency,” which happened with covid on March 17, 2020. The emergency order expired on May 11, 2023.
The law carved out an exception for “willful misconduct,” but proving it occurred can be daunting for families — even when nursing homes have long histories of violating safety standards, including infection controls.
Governors of at least 38 states issued covid executive orders, or their legislatures passed laws, granting medical providers at least some degree of immunity, according to one consumer group’s tally. Just how much legal protection was intended is at the crux of the skirmishes.
Nursing homes answered many negligence lawsuits by getting them removed from state courts into the federal judicial system and asking for dismissal under the PREP Act.
For the most part, that didn’t work because federal judges declined to hear the cases. Some judges ruled that the PREP Act was not intended to shield medical providers from negligence caused by inaction, such as failing to protect patients from the coronavirus. These rulings and appeals sent cases back to state courts, often after long delays that left families in legal limbo.
“These delays have been devastating,” said Jeffrey Guzman, a New York City attorney who represents Schapers and other families. He said the industry has fought “tooth and nail” trying to “fight these people getting their day in court.”
TITLE: Lawsuit against Kentucky provider allowed to proceed amid heightened scrutiny of caregivers’ COVID immunity
https://www.mcknights.com/news/lawsuit-against-kentucky-provider-allowed-to-proceed-amid-heightened-scrutiny-of-caregivers-covid-immunity/
EXCERPT: The case decided by the Kentucky Court of Appeals on Friday was brought by David Massamore, the surviving son of Jean Massamore, who lived at River’s Bend Retirement Community in Kuttawa. The community consists of a four-star, 40-bed skilled nursing unit and assisted living apartments.
In March of 2020, the community had begun prohibiting access to outside visitors but was still hosting social events for residents without requiring its employees to wear personal protective equipment.
In late-March 2020, Jean Massamore developed symptoms of COVID and died “a few days later.” According to the lawsuit, which was filed in 2021, the community had until that point “conducted no COVID-19 testing on staff or residents with symptoms.”
Her son’s lawsuit alleged River’s Bend “owed a duty … to provide custodial care, services, and supervision that a reasonably careful assisted living facility would provide under similar circumstances.”
He argued that the community “acted with oppression, fraud, and/or malice, or were grossly negligent by acting with wanton or reckless disregard for the health and safety of [Decedent]” and that his mother “suffered injury as a direct and proximate result of such negligence, oppression, fraud, malice, or gross negligence.”
Many state immunity provisions, including two separate standards in Kentucky, allowed cases to proceed if a plaintiff could prove gross negligence, and the Court of Appeals agreed a case could be made here. The court also confirmed earlier decisions that the provider did not qualify for federal protection because there was no allegation regarding the use of “countermeasures” needed to invoke the PREP Act.
While the case can proceed, the opinion does concede judges are granting “wide latitude” when reviewing the state’s common sense standard for a sufficient allegation of gross negligence. While the Kentucky COVID-19 Immunity Act disallows a dismissal when gross negligence can be argued, a jury could still find on the provider’s behalf.
A state Circuit Court considering the case previously noted “there is no sharp, well-defined, dividing line between simple negligence and gross negligence,” calling the standard in this case “a question for the jury.”