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Learning Objectives

  • Appreciate the general legal environment within which physicians and other health care professionals function when providing medical care to older patients.

  • Understand the elements of a medical malpractice claim brought against a health care provider.

  • Engage in the process of shared decision-making and informed consent with older patients in a legally appropriate manner.

  • Advise patients and families about available tools to facilitate advance health care planning.

  • Apply in clinical practice the legal requirements for confidentiality of patient information and permissible exceptions to those requirements.

Key Clinical Points

  1. Maintain and apply in clinical practice an acceptable level of knowledge and skill for your specialty (ie, keep up with your field).

  2. Engage in the process of informed and voluntary shared decision-making with your patients or their decision-making surrogates.

  3. Discuss the topic of advance health care planning in a timely and supportive manner with patients, ascertaining the patient’s relevant values and treatment preferences in various contingencies and documenting them in the medical record.

  4. Respect and safeguard the confidentiality of patients’ medical information, but understand the circumstances under which it is legally permissible or even mandatory to reveal what would otherwise be confidential information.


The law regulates human relationships prospectively and retrospectively in a variety of ways. To a large extent, the legal implications of medical practice are generic, in the sense that they apply to patients of all ages. Rules developed to deal with the care of younger adults apply with full force to older persons, whose rights do not diminish just because of advanced chronological age. However, a patient’s advanced years may raise issues demanding particular attention by involved participants in the professional/patient relationship. This chapter concentrates on selected aspects in which the law influences the delivery of geriatric services through its impact on the recognition and enforcement of respective rights and responsibilities of the parties, within the dynamics of an older patient/health care provider relationship.


The U.S. Constitution establishes a federal system of government, under which health care delivery, financing, and other matters are regulated at the national (federal), state, and local levels. Under separation of powers principles, regulation takes the form of (1) constitutional (federal, state, and local) provisions, (2) statutes enacted by elected legislatures, (3) rules or regulations promulgated by executive branch administrative agencies such as health or social service departments on the basis of authority conferred on the agency by the legislature via statute, and (4) common law doctrines created by courts as a matter of public policy and prior case precedent. These various forms of regulation may impose specific or general duties on parties, may authorize but not require parties to act in specific ways, or may prohibit parties from engaging in particular conduct. Health care regulation may be directed at individual health professionals or at health care facilities, agencies, ...

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