Statutes and regulations endeavor to direct behavior throughout society and allow injured individuals to recover for harm. However, the enactment of a particular law—or the absence thereof—can have other unintended consequences. What facially appears to facilitate resolution can, in practice, actually construct hurdles that inhibit this very goal. This paradox is especially prevalent in laws affecting the elder population in need of long- term care services, such as in a nursing home, assisted living, or other long-term care setting.
Older adults in long-term care facilities need legal services just like any other subset of our population but have a unique set of needs. When injuries occur in the long-term care setting, the older adult or a family member may seek accountability. Yet, they often lack the financial means or energy to bring a legal claim. A nursing home resident is not focused on enforcing his or her rights or suing the very company providing him or her with necessary care. The resident is often either unaware of a potential legal claim or is unable to contact an attorney, let alone retain one. Even if a claim is pursued, the current legal framework limits recovery and accountability for older victims. Without the ability to meaningfully pursue their legal claims, society sends the wrong message to older adults—essentially stripping them of voice under the current legal framework. Legal claims on behalf of the elder population range anywhere from breach of contract, retaliatory discharge, and medical malpractice, to violation of rights. This article explores the claim of medical malpractice, in particular, and highlights the barriers older adults encounter under Minnesota law in trying to resolve their claims. It concludes by offering some proposed changes to improve the legal landscape for our elder population.