Injuries related to the elderly and persons with dementia

The preceding chapter explains the diagnostic issues for dementia evaluation. This chapter addresses both tortious conduct by persons with dementia who are sued as defendants, as well as injuries suffered by persons with dementia when those harms are caused by other persons.

Accidental injuries appear to increase with advanced age, from a variety of physiological causes. CDC data suggests that age and dementia are not causally related but are co-related. Starting at age 65, the risk of developing dementia doubles every 5 years. By age 85 years and older, between 25 percent and 50 percent of people will exhibit signs of Alzheimer's disease. Up to 5.3 million Americans currently have Alzheimer's disease. According to a national survey, dementia affected 37.4 percent of those aged 90 or older. By 2050, CDC expects the number to more than double due to the aging of the population.

The dominant form of dementia, Alzheimer's disease, is the sixth leading cause of death in the United States, and is the fifth leading cause among persons aged 65 and over. Death or serious injury that is related to accidental causes will be the focus of potential tort litigation.

The problems foreseen by attorneys in accepting the tort case of an injured dementia patient include the conventional proofs of cause, event and harm, but also the status of the patient as of the time of the event: did she or he bear legal responsibility for the tortious act, in some way, that a “normal” person would not? The decision to accept representation for a tort liability claim on a contingent fee also must consider the financial losses which the potential plaintiff has suffered, in the instance where the dementia patient missed no work, had no incapacitation from earnings, may be unable to cogently testify and where (in some cases) medical bills had been paid by the state Medicaid agency rather than by the injured person. In the following sections, we describe the typical tort claims which may intersect with the needs of the dementia patient.