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As detailed elsewhere in this issue, MICRA places severe restrictions on recoverable damages in actions for medical malpractice. Because of this, it is important to know just which claims are subject to MICRA. While case law is still developing in this area, several distinct claims are evident.
The classic elder abuse case involves an aged plaintiff permanently residing in a longterm care facility. Such a person is being cared for by nurses or by aides who are not required to be licensed, and it is fairly clear that the action is distinct from medical malpractice. But there are other cases that involve patients in hospitals or in transition from hospitals to home by way of skilled nursing facilities. When those patients develop pressure ulcers or other signs of abuse or neglect, the lines between a cause of action for elder abuse and one for professional negligence are far less clear, sometimes permitting plaintiffs to elect an elder abuse theory over an inferior medical malpractice one.
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