Elements of the Cause of Action for Abandonment
All the following five elements must be present for a patient to possess a proper civil source of action for the tort of abandonment:
1. Medical treatment was unreasonably discontinued.
2. The termination of health care was contrary to the patient’s will or without the patient’s knowledge.
3. The medical care provider failed to arrange for care by another appropriate skilled health care provider.
4. The health care provider needs to have reasonably foreseen that problems for the patient would arise in the termination of the care (proximate cause).
5. The patient actually suffered harm or loss on account of the discontinuance of care.
Physicians, nurses, as well as other health care professionals have an ethical, and also a legal, duty to avoid abandonment of patients. The health care professional includes a duty to give his or her patient all necessary attention so long as the case required it and should not leave the patient in a critical stage without giving reasonable notice or making suitable arrangements for that attendance of another.
Abandonment from the Physician
When a physician undertakes treatment of a patient, treatment must continue until the patient’s circumstances no more warrant the treatment, the doctor and the patient mutually accept to end the treatment with that physician, or the patient discharges the physician. Moreover, the physician may unilaterally terminate the relationship and withdraw from treating that patient only when he or she provides the patient proper notice of her or his intent to withdraw with an opportunity to obtain proper substitute care.
In the home health setting, the physician-patient relationship will not terminate merely must be patient’s care shifts rolling around in its location from the hospital towards the home. If the patient continues to need medical services, supervised health care, therapy, or other home health services, the attending physician should ensure that he or she was properly discharged his or her-duties to the patient. Virtually every situation ‘in which home care is approved by Medicare, Medicaid, or even an insurer will be one out of which the patient’s ‘needs for care have continued. The physician-patient relationship that existed in the hospital will continue unless it is often formally terminated by notice for the patient and a reasonable attempt to refer the patient to a new appropriate physician. Otherwise, the doctor will retain his or her duty toward the sufferer when the patient is discharged from the hospital to the home. Failure to follow along with through on the part of the doctor will constitute the tort of abandonment if the patient is injured therefore. This abandonment may expose the doctor, the hospital, and the home health agency to liability to the tort of abandonment.
The attending physician inside the hospital should be sure that a proper referral was created to a physician who will be accountable for the home health patient’s care while it’s being delivered by the home health provider, unless problems intends to continue to supervise that homecare personally. Even more important, in the event the hospital-based physician arranges to offer the patient’s care assumed by another physician, the individual must fully understand this variation, and it should be carefully documented.
As based on case law, the kinds of actions that will lead to liability for abandonment of the patient will include:
• premature relieve the patient by the physician
• failure from the physician to provide proper instructions before discharging the sufferer
• the statement by the physician to the patient that this physician will no longer treat the person
• refusal of the physician to reply to calls or to further attend the sufferer
• the physician’s leaving the sufferer after surgery or failing to follow up on postsurgical care.
Generally, abandonment does not occur if the physician in charge of the patient arranges to get a substitute physician to consider his or her place. This transformation may occur because of vacations, relocation of the physician, illness, distance through the patient’s home, or retirement of the physician. As long as care by an appropriately trained physician, sufficiently knowledgeable with the patient’s special conditions, if any, has been arranged, the courts will most likely not find that abandonment has occurred. Even when a patient refuses to spend the money for care or is not able to pay for the care, the doctor is not at liberty to terminate their bond unilaterally. The physician must still take steps to have the patient’s care assumed by another in order to give a sufficiently reasonable period of time to locate another just before ceasing to provide care.
Although almost all of the cases discussed concern the physician-patient relationship, as pointed out above previously, the same principles apply to all health care providers. Furthermore, for the reason that care rendered with the home health agency emerges pursuant to a physician’s plan of care, even if the patient sued the physician for abandonment because of the actions (or inactions of the property health agency’s staff), the doctor may seek indemnification through the home health provider.
ABANDONMENT With the NURSE OR HOME HEALTH AGENCY
Similar principles to people who apply to physicians sign up for the home health professional along with the home health provider. A home health agency, as the direct provider of care to the homebound patient, might be held to the same legal obligation and duty to deliver care that addresses the patient’s needs as is problems. Furthermore, there may be both a legal and an ethical obligation to remain delivering care, in the event the patient has no alternatives. A moral obligation may still exist to the patient even though the home health provider has fulfilled all legal obligations.
Every time a home health provider furnishes treatment into a patient, the duty to remain providing care to the patient is a duty owed from the agency itself and not by the individual professional who may be the employee or the contractor in the agency. The home health provider doesn’t need a duty to continue offering the same nurse, therapist, or aide towards the patient throughout the procedure, so long as the provider is constantly use appropriate, competent personnel to provide the course of treatment consistently with the plan of care. From the perspective of patient satisfaction and continuity of care, it could be in the best interests of the property health provider to attempt to provide the same individual practitioner to the patient. The development of your own relationship with the provider’s personnel may improve communications along with a greater degree of trust and compliance by the patient. It should help alleviate many of the issues that arise in the health care’ setting.
In the event the patient requests replacing a particular nurse, therapist, technician, or home health aide, your home health provider is still equipped with a duty to provide desire to the patient, unless the patient also specifically states she or he no longer desires the provider’s service. Home health agency supervisors should always follow up on such patient requests to determine the reasons regarding the dismissal, to detect “problem” employees, and to ensure no incident has taken place that might bring about liability. The home health agency should continue providing choose to the patient until definitively told to avoid so by the patient.
Managing THE ABUSIVE PATIENT
Home health provider personnel may occasionally encounter an abusive patient. This abuse mayor might not be a result of the medical condition for which the care is being provided. Personal safety of the baby health care provider should be paramount. If the patient pose an actual physical danger to the individual, she or he should leave the premises immediately. The provider should document in the medical record the facts regarding the inability to complete the procedure for that visit as objectively as you possibly can. Management personnel should inform supervisory personnel in the home health provider and may complete an internal incident report. Whether it appears that a criminal act has brought place, such as a physical assault, attempted rape, or any other such act, this act ought to be reported immediately to local law enforcement agencies. The home care provider also need to immediately notify the two patient and the physician that this provider will terminate its relationship with all the patient and that an alternative provider for these services needs to be obtained.
Other less serious circumstances may, nevertheless, lead your home health provider to determine that it should terminate its relationship which has a particular patient. Examples can sometimes include particularly abusive patients, patients who solicit -the home health provider professional to interrupt the law (for example, by providing illegal drugs or providing non-covered services and equipment and billing them as another thing), or consistently noncompliant patients. Once treatment is undertaken, however, the home health provider is generally obliged to continue providing services before patient has had an acceptable opportunity to obtain a substitute provider. The same principles apply to failure of the patient to pay for the services or equipment provided.
As physicians, HHA personnel should have training on how to handle the difficult patient responsibly. Arguments or emotional comments should be avoided. If it becomes clear a certain provider and patient are not likely to be compatible, an alternative provider should be tried. Should it appear how the problem lies together with the patient and that it is important for the HHA to terminate its relationship with all the patient, the following seven steps should be taken:
1. Instances should be documented inside the patient’s record.
2. Your home health provider should give or send correspondence to the patient explaining conditions surrounding the termination of care.
3. The letter must be sent by certified mail, return receipt requested, or other measures to document patient delivery of the letter. A copy with the letter should be put in the patient’s record.
4. If at all possible, the patient should be given a specific period of time to obtain replacement care. Usually 1 month is sufficient.
5. If your patient has a life-threatening condition or perhaps a medical condition that might deteriorate in the absence of continuing care, this condition should be clearly stated in the letter. The need of the patient’s obtaining replacement home health care should be emphasized.
6. The patient should be informed of the location of the nearest hospital emergency department. The patient should be told with the idea to go to the nearest hospital emergency department in case there is a medical emergency or call the local emergency number for ambulance transportation.
7. A copy of the letter must be sent to the patient’s attending physician via certified mail, return receipt requested.
These steps should not be undertaken lightly. Before such steps are taken, a person’s case should be thoroughly discussed with the home health provider’s risk manager, a lawyer, medical director, and also the patient’s attending physician.
The inappropriate relieve a patient from healthcare coverage by the home health provider, whether as a result of termination of entitlement, lack of ability to pay, or other reasons, could also lead to liability for your tort of abandonment.
Nurses who passively get ready and observe negligence with a physician or someone else will personally become accountable for the patient who is injured because of that negligence… [H]ealthcare facilities in addition to their nursing staff owe an unbiased duty to patients past the duty owed by physicians. Every time a physician’s order to discharge is inappropriate, the nurses will likely be help liable for following a purchase that they knew or should be aware of is below the standard of care.