The US legal system ensures that physicians rarely will be sued for malpractice over an incident relating to the care of an elderly patient. The primary reason is that the measure of recovery—mainly, lost earn¬ings—is very low for elderly persons, whose economically productive work life usually is behind them. Because the prospective calculation of lost earnings is low, the award will be small, and because most malprac¬tice cases are arranged on a contingent fee basis, the lawyer’s fee will be small. Therefore, the whole enterprise is usually unattractive to neg¬ligence attorneys. The risk of malpractice for other health care provid¬ers is even smaller, in part because the legal system assumes that their assets are not as great as those of physicians.
Legal activity is more likely to focus on the propriety of discontinu¬ing treatment and the issues of surrogate decision making. Also, more assault and battery cases are being brought for not discontinuing treat¬ment after it has been refused by a debilitated but decisionally capable patient or by the family. In some nursing home cases, judges or juries have found criminal negligence based generally on patterns of disre¬gard that violate specific regulations for institutional behavior.