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Elements of the Cause of Action for Abandonment
Every one of the following five elements should be present for a patient to experience a proper civil source of action for the tort of abandonment:
1. Health care treatment was unreasonably discontinued.
2. The termination of medical was contrary to the patient's will or without the patient's knowledge.
3. The care provider didn't arrange for care by another appropriate skilled health care provider.
4. The health care provider must have reasonably foreseen that injury to the patient would arise from your termination of the care (proximate cause).
5. The sufferer actually suffered harm or loss because of the discontinuance of care.
Physicians, nurses, and also other health care professionals have an ethical, as well as a legal, duty in order to avoid abandonment of patients. Medical care professional has a duty to give his / her patient all necessary attention provided that the case required it and should not leave the patient in the critical stage without giving reasonable notice or making suitable arrangements for the attendance of another.
Abandonment by 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 agree to end the treatment with that physician, or the patient discharges the physician. Moreover, the physician may unilaterally terminate the partnership and withdraw from treating that patient provided that he or she provides the patient proper notice of his / her intent to withdraw plus an opportunity to obtain proper substitute care.
In your house health setting, the physician-patient relationship will not terminate merely because a patient's care shifts in their location from the hospital on the home. If the patient will continue to need medical services, supervised healthcare, therapy, or other home health services, the attending physician should make certain 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 an insurer will be one in which the patient's 'needs for care have continued. The physician-patient relationship that existed in the hospital will continue unless many experts have formally terminated by notice for the patient and a reasonable try and refer the patient to an alternative appropriate physician. Otherwise, the physician will retain his or her duty toward the individual when the patient is discharged in the hospital to the home. Failure to follow through on the part of the physician will constitute the tort of abandonment in the event the patient is injured because of this. This abandonment may expose problems, the hospital, and the home health agency to liability to the tort of abandonment.
The attending physician from the hospital should be sure that a proper referral was created to a physician who will be to blame for the home health patient's care though it may be being delivered with the home health provider, unless the physician intends to continue to supervise that homecare personally. Even more important, in the event the hospital-based physician arranges to achieve the patient's care assumed by another physician, the individual must fully understand this modification, and it should be carefully documented.
As backed up by case law, the sorts of actions that will bring about liability for abandonment of an patient will include:
• premature turmoil the patient by the physician
• failure of the physician to provide proper instructions before discharging the person
• the statement from the physician to the patient that this physician will no longer treat the patient
• refusal of the physician to answer calls or to further attend the patient
• the physician's leaving the patient after surgery or failing to follow up on postsurgical care.
Generally, abandonment doesn't happen if the physician responsible for the patient arranges for the substitute physician to consider his or her place. This change may occur because of vacations, relocation in the physician, illness, distance in the patient's home, or retirement in 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 often not find that abandonment has occurred. Even the place where a patient refuses to spend the money for care or is struggling to pay for the care, problems 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 stretch of time to locate another before ceasing to provide care.
Although most of the cases discussed concern the physician-patient relationship, as pointed out above previously, the same principles apply to all health care providers. Furthermore, since the care rendered from the home health agency is provided pursuant to a physician's plan of care, even if the patient sued the doctor for abandonment because of the actions (or inactions of your home health agency's staff), health related conditions may seek indemnification from the home health provider.
ABANDONMENT Through the NURSE OR HOME HEALTH AGENCY
Similar principles to people who apply to physicians affect the home health professional as well as the home health provider. Your house health agency, because direct provider of choose to the homebound patient, may be held to the same legal obligation and duty to offer care that addresses a person's needs as is the physician. Furthermore, there may be both a legal and an ethical obligation to continue delivering care, when the patient has no alternatives. A moral obligation may still exist for 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 sufferer is a duty owed by the agency itself and never by the individual professional who seems to be the employee or the contractor of the agency. The home health provider won't have a duty to continue providing the same nurse, therapist, or aide for the patient throughout the procedure, so long as the provider continues to use appropriate, competent personnel to provide the course of treatment consistently together with the plan of care. In the perspective of patient satisfaction and continuity of care, it can be in the best interests of the property health provider to attempt to provide the same individual practitioner for 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 assist to alleviate many of the issues that arise in the health care' setting.
When the patient requests replacing of a particular nurse, therapist, technician, or home health aide, the home health provider still has a duty to provide desire to the patient, unless the sufferer also specifically states he / she no longer desires the provider's service. Home health agency supervisors would be wise to follow up on such patient requests to discover the reasons regarding the dismissal, to detect "problem" employees, and to ensure no incident has gotten place that might give rise to liability. The home health agency should continue providing choose to the patient until definitively told to refrain from giving so by the patient.
COPING WITH THE ABUSIVE PATIENT
Home health provider personnel may occasionally encounter an abusive patient. This abuse mayor will not be a result of the medical condition which is why the care is being provided. Personal safety of the people health care provider should be paramount. If your patient pose an actual danger to the individual, she or he should leave the premises immediately. The provider should document within the medical record the facts around the inability to complete the therapy for that visit as objectively as you possibly can. Management personnel should inform supervisory personnel with the home health provider and really should complete an internal incident report. If it appears that a criminal act has gotten place, such as a physical assault, attempted rape, or any other such act, this act should be reported immediately to law enforcement agencies. The home care provider must also immediately notify the two patient and the physician that this provider will terminate its relationship with the patient and that an alternative solution provider for these services must be obtained.
Other less serious circumstances may, nevertheless, lead the home health provider to find out that it should terminate its relationship having a particular patient. Examples can sometimes include particularly abusive patients, patients who solicit -the home health provider professional to interrupt the law (for example, through providing illegal drugs or providing non-covered services and equipment and billing them as something different), or consistently noncompliant patients. Once treatment methods are undertaken, however, the home health provider is normally obliged to continue providing services before patient has had a good opportunity to obtain a substitute provider. Exactly the same principles apply to failure of the patient to pay for the skills or equipment provided.
As physicians, HHA personnel should have training regarding how to handle the difficult patient responsibly. Arguments or emotional comments should be avoided. If it becomes clear that the certain provider and patient will not be compatible, an alternative provider should be tried. Should it appear the problem lies with the patient and that it is essential for the HHA to terminate its relationship with the patient, the following seven steps needs to be taken:
1. The circumstances should be documented within the patient's record.
2. Your home health provider should give or send correspondence to the patient explaining instances surrounding the termination of care.
3. The letter should be sent by certified mail, return receipt requested, and other measures to document patient receipt of the letter. A copy of the letter should be put into the patient's record.
4. If at all possible, the patient should be given some period of time to obtain replacement care. Usually Thirty days 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 issue should be clearly stated in the letter. The necessity of the patient's obtaining replacement home healthcare should be emphasized.
6. The person should be informed in the location of the nearest hospital emergency department. The person should be told either to go to the nearest hospital emergency department in case there is a medical emergency in order to call the local emergency number for ambulance transportation.
7. A copy of the letter needs to be sent to the patient's attending physician via certified mail, return receipt requested.
These steps mustn't be undertaken lightly. Before such steps are taken, the patient's case should be thoroughly discussed with all the home health provider's risk manager, an attorney, medical director, along with the patient's attending physician.
The inappropriate turmoil a patient from healthcare coverage by the home health provider, whether as a result of termination of entitlement, being unable to pay, or other reasons, might also lead to liability to the tort of abandonment.
Nurses who passively get ready and observe negligence by a physician or anyone else will personally become accountable on the patient who is injured as a result of that negligence... [H]ealthcare facilities as well as their nursing staff owe an unbiased duty to patients at night duty owed by physicians. Whenever a physician's order to discharge is inappropriate, the nurses is going to be help liable for following an order that they knew or ought to know is below the standard of care.