Elements of the Cause of Action for Abandonment
Each of the following five elements have to be present for a patient to get a proper civil reason for action for the tort of abandonment:
1. Health care treatment was unreasonably discontinued.
2. The termination of medical care was contrary to the patient's will or devoid of the patient's knowledge.
3. The care provider did not arrange for care by another appropriate skilled medical doctor.
4. The health care provider must have reasonably foreseen that harm to the patient would arise through the termination of the care (proximate cause).
5. The individual actually suffered harm or loss due to the discontinuance of care.
Physicians, nurses, and other health care professionals have an ethical, and a legal, duty to stop abandonment of patients. The health care professional includes a duty to give his / her patient all necessary attention providing the case required it and cannot leave the patient in a critical stage without giving reasonable notice or making suitable arrangements for your attendance of another.
Abandonment from the Physician
When a physician undertakes treatments for a patient, treatment must continue before patient's circumstances not warrant the treatment, the doctor and the patient mutually consent to end the treatment by 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 the house health setting, the physician-patient relationship does not terminate merely because a patient's care shifts in the location from the hospital towards the home. If the patient continues to need medical services, supervised medical care, therapy, or other home health services, the attending physician should be sure that he or she was properly discharged his or her-duties for the patient. Virtually every situation 'in which homecare is approved by Medicare, Medicaid, or perhaps 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 has been formally terminated by notice to the patient and a reasonable try and refer the patient to an alternative appropriate physician. Otherwise, problems will retain her or his duty toward the patient when the patient is discharged from the hospital to the home. Failure to adhere to through on the part of the doctor will constitute the tort of abandonment if the patient is injured therefore. This abandonment may expose the physician, the hospital, and the home health agency to liability to the tort of abandonment.
The attending physician from the hospital should make certain that a proper referral was designed to a physician who will be accountable for the home health patient's care while it is being delivered by the home health provider, unless health related conditions intends to continue to supervise that homecare personally. Even more important, when 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 sustained by case law, the sorts of actions that will result in liability for abandonment of an patient will include:
• premature launch of the patient by the physician
• failure in the physician to provide proper instructions before discharging the sufferer
• the statement with the physician to the patient the physician will no longer treat the individual
• refusal of the physician to answer calls or to further attend the person
• the physician's leaving the sufferer after surgery or unable to follow up on postsurgical care.
Generally, abandonment does not occur if the physician to blame for the patient arranges for a substitute physician to consider his or her place. This variation may occur because of vacations, relocation in the physician, illness, distance from the patient's home, or retirement from the physician. As long as care by an appropriately trained physician, sufficiently knowledgeable in the patient's special conditions, if any, has been arranged, the courts will most likely not find that abandonment has occurred. Even in which 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 the relationship unilaterally. The physician must still do something to have the patient's care assumed by another or to give a sufficiently reasonable period of time to locate another just before ceasing to provide care.
Although most of the cases discussed concern the physician-patient relationship, as pointed out previously, the same principles sign up for all health care providers. Furthermore, as the care rendered from the home health agency is provided pursuant to a physician's plan of care, whether or not the patient sued the doctor for abandonment because of the actions (or inactions of the home health agency's staff), the doctor may seek indemnification through the home health provider.
ABANDONMENT BY THE NURSE OR HOME HEALTH AGENCY
Similar principles to people who apply to physicians affect the home health professional and the home health provider. Your house health agency, as the direct provider of want to the homebound patient, could be held to the same legal obligation and duty to offer care that addresses a person's needs as is health related conditions. Furthermore, there may be both the best and an ethical obligation to keep delivering care, in the event the patient has no alternatives. An ethical obligation may still exist for the patient even though the home health provider has fulfilled all legal obligations.
Whenever a home health provider furnishes treatment to some patient, the duty to carry on providing care to the individual is a duty owed from the agency itself and not by the individual professional who seems to be the employee or the contractor of the agency. The home health provider does not have a duty to continue offering the same nurse, therapist, or aide towards the patient throughout the course of treatment, so long as the provider continues to use appropriate, competent personnel to manage the course of treatment consistently with the plan of care. In the perspective of patient satisfaction and continuity of care, it may be in the best interests of the home health provider to provide the same individual practitioner on the patient. The development of a personal relationship with the provider's personnel may improve communications as well as a greater degree of trust and compliance for the patient. It should assist to alleviate many of the issues that arise in the health care' setting.
If the patient requests replacing a particular nurse, therapist, technician, or home health aide, the property health provider still has a duty to provide desire to the patient, unless the individual also specifically states they no longer desires the provider's service. Home health agency supervisors should follow up on such patient requests to ascertain the reasons regarding the dismissal, to detect "problem" employees, and to ensure no incident has gotten 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 in which the care is being provided. Personal safety of the baby health care provider should be paramount. Should the patient pose an actual physical 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 is possible. Management personnel should inform supervisory personnel in the home health provider and really should complete an internal incident report. When it appears that a criminal act has had place, such as a physical assault, attempted rape, or another such act, this act ought to be reported immediately to law enforcement agencies. The home care provider also need to immediately notify both the patient and the physician that the provider will terminate its relationship with the patient and that a different provider for these services should be obtained.
Other less serious circumstances may, nevertheless, lead the house health provider to find out that it should terminate its relationship which has a particular patient. Examples can 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 something different), or consistently noncompliant patients. Once treatment is undertaken, however, the property health provider is generally obliged to continue providing services until the patient has had a reasonable opportunity to obtain a substitute provider. The identical principles apply to failure of a patient to pay for the assistance or equipment provided.
As medical professionals, HHA personnel should have training regarding how to handle the difficult patient responsibly. Arguments or emotional comments needs to be avoided. If it becomes clear that a certain provider and patient will not be compatible, an alternative provider should be tried. Should it appear the problem lies using the patient and that it is necessary for the HHA to terminate its relationship using the patient, the following seven steps needs to be taken:
1. Situations should be documented from the patient's record.
2. The house health provider should give or send instructions to the patient explaining situations surrounding the termination of care.
3. The letter should be sent by certified mail, return receipt requested, or other measures to document patient receiving the letter. A copy from the letter should be put into the patient's record.
4. Whenever possible, the patient should be given some period of time to obtain replacement care. Usually 30 days is sufficient.
5. In the event the patient has a life-threatening condition or even a medical condition that might deteriorate even without the continuing care, this issue should be clearly produced in the letter. The necessity of the patient's obtaining replacement home healthcare should be emphasized.
6. The individual should be informed from the location of the nearest hospital emergency department. The individual should be told to either go to the nearest hospital emergency department in the case of a medical emergency as well as to call the local emergency number for ambulance transportation.
7. A reproduction of the letter should be sent to the patient's attending physician via certified mail, return receipt requested.
These steps really should not be undertaken lightly. Before such steps are taken, a person's case should be thoroughly discussed with all the home health provider's risk manager, an attorney, medical director, and the patient's attending physician.
The inappropriate turmoil a patient from health care coverage by the home health provider, whether as a consequence of termination of entitlement, wherewithal to pay, or other reasons, could also lead to liability for that tort of abandonment.
Nurses who passively the stand by position and observe negligence by way of a physician or someone else will personally become accountable to the patient who is injured as a result of that negligence... [H]ealthcare facilities along with their nursing staff owe an independent duty to patients after dark duty owed by physicians. Whenever a physician's order to discharge is inappropriate, the nurses will likely be help liable for following a purchase order that they knew or should be aware of is below the standard of care.