Also known as financial exploitation, elder financial abuse is defined by the Older Americans Act as “the fraudulent or otherwise illegal, unauthorized, or improper act or process of an individual, including a caregiver or fiduciary, that uses the resources of an older individual for monetary or personal benefit, profit, or gain, that results in depriving an older individual of the rightful access to, or use of, benefits, resources, belongings, or assets.”
In other words, any time a person illegally benefits from the assets of an elderly individual, elder financial abuse has occurred.
The National Adult Protective Services Association (NAPSA) reports that the rate of elder financial abuse is exceedingly high, with as many as 1 in 20 older adults reporting financial mistreatment. Sadly, less than 50% of financial exploitation cases are reported.
Who commits these acts?
Most often, those who take advantage of the elderly are “trusted” people, such as family members, friends, and caregivers. Other individuals such as nursing home staff, neighbors, pastors, and bank employees may also use their positions to influence the elderly. New romantic interests may also coerce the elderly into changing their finances. According to NAPSA, “90% of abusers are family members or trusted others.”
What are the common ways the elderly are exploited?
The most common areas in which the elderly are manipulated include the following:
- Powers of attorney
- Joint bank accounts
- Beneficiary designations
In these instances, the elderly victim often allows a trusted person access to his/her finances and assets through these documents. The trusted person will then use the funds for his/her own purposes, often neglecting the victim’s financial needs. This can lead to stolen money, assets, or properties. Some victims may find themselves suddenly destitute or homeless, without insurance, and robbed of their savings.
One recent study found that “of the seniors who experienced fraud, 1.8 % lost their home or other major assets, […] 6.7% skipped medical care, and 4.2% reduced their nutritional intake for budgetary reasons.”
Who is at risk?
Most at risk are those elderly people who suffer from mental or physical disabilities including Alzheimer’s or dementia, those who are single and isolated, those who are unfamiliar with financial matters or technology, and those with predictable financial patterns (such as a monthly pension or social security check).
There are two significant qualifications for victimization:
- Lack of mental capacity – a condition in which an elderly person does not understand the nature and effect of his/her actions
- Undue influence – a situation in which a trusted person abuses his/her position and overcomes the free will of the elderly person with threats or intimidation
What should I look for if I suspect financial abuse?
Signs of elder financial exploitation can include the following:
- Large bank withdrawals or transfers between accounts
- Eviction notices, disconnected utilities, unpaid bills
- Unexplained ATM withdrawals
- Forged documents
- Undocumented financial arrangements
- Sudden and new “best friends”
- Missing property and belongings
- Substandard care
What can I do?
If you suspect that someone you know is a victim of elder financial abuse, contact an attorney immediately. An attorney should act quickly to stop assets from being transferred or, if they have been transferred, sue for damages.
If you believe you have a case, please contact us at 740-374-5346 or use our contact form. We will work with you to ensure the safety and financial security of your loved ones.
An Overview of Damages
Most of us have a general concept of “damages” as they relate to a lawsuit, but what does the term really mean?
Damages are the monetary remedy awarded by a court in a civil action to one party (a plaintiff) who has been injured by another party (a defendant) through wrongful conduct, a breach of duty, or a violation of a right. Damages attempt to measure the financial harm the defendant caused the plaintiff. The purpose of damages is to restore the injured person to the position he/she was in before being harmed.
Damages are separate from costs, which are the expenses associated with the lawsuit. Damages are also different than the verdict, which is the final decision issued by a judge or jury.
Ordinarily, the law recognizes three types of damages: compensatory, nominal, and punitive. Compensatory damages are awarded to restore what a plaintiff has lost due to the wrongdoing of a defendant. Nominal damages are awarded when a plaintiff has suffered no significant loss or injury, but has endured an invasion of rights. Punitive damages are awarded to penalize a defendant for particularly malicious acts or conduct. General rules determine what types of damages can be awarded in each situation.
Compensatory damages, as the name suggests, compensate the plaintiff for loss and injury. These damages must be measured as real and tangible, although this can be difficult with cases claiming emotional distress, pain, and/or suffering.
A plaintiff can recover damages for a variety of reasons:
- physical impairment, including long-term effects
- mental impairment, such as memory loss or reduced intellectual capacity
- physical pain and suffering, including present and future
- mental pain and suffering, including trauma, grief, anxiety, and humiliation
- loss of earnings, including present and future
- reasonable and necessary expenses, such as medical costs
Nominal damages are typically awarded when the harm is minimal, but an award is justified based on the circumstances. These awards are typically symbolic sums, such as one dollar or the court costs.
A famous case of nominal damages was when Winston Churchill sued author Louis Adamic. Adamic had falsely written that Churchill was intoxicated at a White House dinner. Churchill was awarded one schilling, or approximately 25 cents.
Punitive, or exemplary, damages can be awarded to a plaintiff in addition to compensatory damages in cases where a defendant has acted in an explicitly vindictive or malicious manner. Punitive damages do not serve as reimbursement, but rather as a punishment for the defendant and a deterrent to those who might act in similar ways.
Punitive damages can be awarded based on:
- the nature of the defendant’s behavior
- the scope of the plaintiff’s injury or loss
- how similar cases awarded punitive damages
- the amount that would discourage the defendant based on the defendant’s assets
Punitive damages are awarded infrequently and have limitations. Most often, the defendant’s actions had to be willful, wanton, reckless, malicious, oppressive, or fraudulent. Monetary compensation from punitive damages is most often awarded to the plaintiff, although some states have a split-recovery rule where some of the damages are given to the state.
What Is the Role of a Radiologist?
A radiologist is a medical specialist who has been trained to read and interpret the results of medical images, such as MRIs, CTs, and x-rays. A radiologist works in conjunction with other physicians who request imaging tests. For instance, if a primary care physician orders a chest x-ray, the radiologist will read and interpret the results of the x-ray, and then return those interpretations and results to the primary physician.
What is Radiology Malpractice?
There are two types of radiology malpractice: misreading an image and failure to communicate with the consulting physician. 75% of lawsuits against radiologists come from one of these two situations.
Misreading an Image
The most common form of radiology malpractice is due to diagnostic errors – the failure to correctly read or interpret the medical image.
At times, when examining test results, a radiologist can “miss” a vital finding or may focus on one type of medical condition over another.
For instance, a primary physician may request a chest x-ray of a patient to rule out pneumonia. When the radiologist looks for pneumonia, the image is clear of that illness. However, during examination of the x-ray, the radiologist may overlook a mass. Later, the patient is determined to have lung cancer as a result of that mass. The radiologist, therefore, can be found negligent in evaluating the initial x-ray.
Frequently missed diagnoses include breast and lung cancer, vascular disease, and aneurysms.
The second most common type of radiology malpractice occurs when a radiologist and a referring physician miscommunicate. This can occur when a radiologist does not provide test results to the physician or fails to mention concerns about the patient’s imaging. It can also occur when the physician fails to read the radiologist’s full report and overlooks details about the evaluation of the scan.
Radiologists and physicians are required by medical malpractice law to communicate effectively not only with each other, but also with their patients.
When Should I See an Attorney?
Radiology malpractice cases can be quite difficult, with complex medical and legal details. If you believe that the health of you or a loved one was jeopardized as a result of radiology malpractice, contact an attorney as soon as possible.
In the instance of misreading an image, an attorney will make the case, with the help of medical expert witnesses, that any other competent radiologist would have noticed an abnormality in the medical image.
If miscommunication between physicians is the issue, at least one of the two doctors – the radiologist or the referring physician – will be liable for the damage. Courts can also decide to penalize both physicians in a given case.
If you believe that you have a radiology malpractice case resulting in injury or death, contact us at 740.374.5346 or use our convenient contact form.
Preparing for Your First Meeting With Your Personal Injury Lawyer
In a previous article, I discussed the qualities you should look for in a personal injury attorney (trial experience, previous work with personal injury cases, a successful track record, etc). Once you have found the right lawyer, you will meet with him or her.
At the initial meeting, you should provide your attorney with as much evidence and information regarding your case as you can. Properly documenting police reports, medical reports, damage reports, photos, and/or eye-witness accounts allows for a stronger case. Make sure to bring all correspondence from any insurance company. Make sure to bring a copy of the “declarations page” for any insurance policy that you may have had in force. (The “declarations page” shows what types of coverage you had purchased and the amounts of coverage.)
The more documents that you can give your lawyer at the beginning of your case, the faster your lawyer can get your case moving. Ultimately, this will yield a faster, and perhaps larger, settlement.
Slips on Snow or Ice
We typically receive several calls each winter regarding falls on ice or snow. These slips and falls can be serious. I once encountered a case in which a business patron actually had his leg amputated, resulting from complications of a fall on ice.
However, most people misunderstand what obligations property owners have regarding snow and ice. Contrary to popular belief, property owners and business owners generally have no duty to clear snow and ice. (They often mistakenly believe that they do, and accordingly clear the ice and snow.)
In Ohio, snow and ice are considered general hazards of living in the northern parts of the United States. Everyone is supposed to take care to avoid slipping on snow or ice. In most cases, if a business owner fails to shovel the snow or put salt on ice, and you fall, you have no case against the business owner (or homeowner, or whomever). Shoveling snow or removing ice is, legally speaking, merely a courtesy extended to the walking public.
There is one major exception, however. If a property owner creates an unnatural accumulation of snow or ice, then the owner can be liable. For example, a property owner has a gutter that is facing in a direction that causes water to flow over a walking surface. The water freezes and causes a slip hazard. The owner can be liable in that situation.
More complicated are the “snow pile” cases. Store owners with large parking lots plow the snow into large piles. The snow starts to melt, creating new ice. Courts have gone both ways on these cases. Ultimately, whether the ice unnaturally accumulated will be the deciding factor.
If you think that you may have a case arising from a slip on ice, please call us at 740-374-5346.
Life Insurance Claim Denials caused by Portability and Conversion Mistakes
During the last four years, I have had several cases in which children and widows of deceased employees were denied the life insurance benefits that had been purchased through their employer’s benefit plan. In each case, the employer, in conjunction with the life insurer, botched the “conversion” process.
Employers often will sponsor “group” term life insurance plans for their employees. The employees are usually given a small policy for which the employee pays no premium. In many cases, the employees can also purchase additional “voluntary” term life insurance for much higher policies. The greater the premium, the more the total insurance.
What is little understood is that when the employee quits or retires, the coverage will cease. There is usually a 30 or 31 day period in which the employee must file a new application to “convert” the group policy to an “individual” policy. This is often called “portability” of the policy. The beauty of this choice is that the employee who elects to “convert” need not pass a physical or be otherwise insurable. The employee can be very sick, in fact. By law, the insurer must accept the employee. (They may charge a king’s ransom for premiums.)
The key is: the employee must properly make the election and fill out the correct applications with the insurer. Otherwise, the coverage ends. Life insurers usually are not keen on writing these types of policies, so they will not go out of their way make sure they are converted.
I have been seeing employers who: (1) fail to inform their employee of these conversion rights, or (2) misinform the employees about these conversion rights.
Every case is different. The first question is: what does the plan state? What does the summary plan description state? What did the retirement benefits counseling documents state? The written documents will play a big role in any eventual lawsuit. The second question is: what did the employer tell the employee?
I have seen unusual life insurance policies that state “We will contact you within 30 days to discuss conversion.” Then, the insurer does not contact the retiree. That is a problem. The insurer broke the promise.
I have also seen large employers give their employees written documents stating that there is active coverage when there is not. This is a misrepresentation of true state of affairs, and it may cause the employer to be liable for the value of the policy.
There is even a reported case in which the employer remained silent about the employee’s conversion benefits and was held liable for those benefits. The retiree was very ill and his girlfriend (and beneficiary of the life insurance policy) called to ask about continuing “his benefits.” The company explained how to continue his health insurance under COBRA, but said nothing about his life insurance benefits. The Court of Appeals held the employer responsible for paying the life insurance benefits.
Most of these conversion disputes are governed by ERISA (Employee Retirement Income Security Act)—at least with private employers. Under ERISA, aggrieved beneficiaries may have a claim for breach of fiduciary duty in these situations. ERISA prescribes duties for any employer, agent, insurer, or other persons who advise employees and their families regarding benefits—“fiduciaries” under the statute. The fiduciary can be liable to misrepresenting important details to participants. And, as I mentioned earlier, sometimes they can be liable for not providing enough information.
If you are being denied life insurance proceeds because the insurer claims that your loved one failed convert or “port” the group life policy, please give us a call at 740-374-5346.
Fields, Dehmlow & Vessels, LLC