Elements of the Cause of Action for Abandonment
Every one of the following five elements must be present for a patient to possess a proper civil reason behind action for the tort of abandonment:
1. Medical care 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 care provider didn't arrange for care by another appropriate skilled health care provider.
4. The health care provider really should have reasonably foreseen that harm to the patient would arise from your termination of the care (proximate cause).
5. The person actually suffered harm or loss because of the discontinuance of care.
Physicians, nurses, along with other health care professionals have an ethical, and a legal, duty to avoid abandonment of patients. The care professional carries a duty to give their patient all necessary attention as long as the case required it and should not leave the patient inside a critical stage without giving reasonable notice or making suitable arrangements to the attendance of another.
Abandonment by the Physician
When a physician undertakes management of a patient, treatment must continue prior to the patient's circumstances no more warrant the treatment, problems and the patient mutually accept to end the treatment with that physician, or the patient discharges health related conditions. Moreover, the physician may unilaterally terminate the connection and withdraw from treating that patient only when he or she provides the patient proper notice of his / her intent to withdraw as well as an opportunity to obtain proper substitute care.
In your home health setting, the physician-patient relationship doesn't terminate merely want . patient's care shifts in its location from the hospital on the home. If the patient continues to need medical services, supervised medical care, therapy, or other home health services, the attending physician should make certain that he or she was properly discharged his or her-duties on the patient. Virtually every situation 'in which home care 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 from the hospital will continue unless it has been formally terminated by notice to the patient and a reasonable try to refer the patient to another appropriate physician. Otherwise, the physician will retain her or his duty toward the person when the patient is discharged through the hospital to the home. Failure to adhere to 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 the doctor, the hospital, and the home health agency to liability for that tort of abandonment.
The attending physician from the hospital should make certain that a proper referral was designed to a physician who will be in charge of the home health patient's care while it is being delivered by the home health provider, unless problems intends to continue to supervise that home care 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 sustained by case law, like actions that will lead to liability for abandonment of an patient will include:
• premature launch of the patient by the physician
• failure of the physician to provide proper instructions before discharging the person
• the statement through the physician to the patient the physician will no longer treat the individual
• refusal of the physician to reply to calls or to further attend the person
• the physician's leaving the patient after surgery or neglecting to follow up on postsurgical care.
Generally, abandonment doesn't occur if the physician to blame for the patient arranges for any substitute physician to take his or her place. This transformation may occur because of vacations, relocation with the physician, illness, distance in the patient's home, or retirement of the physician. As long as care by an appropriately trained physician, sufficiently knowledgeable from the patient's special conditions, if any, has been arranged, the courts will often not find that abandonment has occurred. Even when a patient refuses to pay for the care or is unable to pay for the care, the physician is not at liberty to terminate the relationship unilaterally. The physician must still make a plan to have the patient's care assumed by another or give a sufficiently reasonable period of time to locate another prior to ceasing to provide care.
Although almost all of the cases discussed concern the physician-patient relationship, as outlined above previously, the same principles apply to all health care providers. Furthermore, as the care rendered through the home health agency emerges pursuant to a physician's plan of care, whether or not the patient sued problems for abandonment as a result of actions (or inactions of the home health agency's staff), the physician may seek indemnification from the home health provider.
ABANDONMENT With the NURSE OR HOME HEALTH AGENCY
Similar principles to those who apply to physicians apply to the home health professional along with the home health provider. A home health agency, as the direct provider of want to the homebound patient, may be held to the same legal obligation and duty to offer care that addresses the patient's needs as is health related conditions. Furthermore, there may be both an authorized and an ethical obligation to carry on delivering care, when the patient has no alternatives. A moral obligation may still exist towards the patient even though the home health provider has fulfilled all legal obligations.
Each time a home health provider furnishes treatment with a patient, the duty to keep providing care to the patient is a duty owed with the agency itself rather than by the individual professional who seems to be the employee or the contractor of the agency. The home health provider doesn't need a duty to continue providing the same nurse, therapist, or aide to the patient throughout the treatment course, so long as the provider continues to use appropriate, competent personnel to give the course of treatment consistently together with the plan of care. From the perspective of patient satisfaction and continuity of care, it may be in the best interests of the home health provider to try and provide the same individual practitioner to the patient. The development of an individual relationship with the provider's personnel may improve communications along with a greater degree of trust and compliance for the patient. It should assistance 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, your home health provider retains a duty to provide choose to the patient, unless the sufferer also specifically states he or she no longer desires the provider's service. Home health agency supervisors would be wise to follow up on such patient requests to determine the reasons regarding the dismissal, to detect "problem" employees, and to ensure no incident has had place that might help with liability. The home health agency should continue providing desire to the patient until definitively told not to do 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 that the care is being provided. Personal safety of the people health care provider should be paramount. If the patient pose a physical danger to the individual, they should leave the premises immediately. The company should document in the medical record the facts surrounding the inability to complete the treatment for that visit as objectively as you can. Management personnel should inform supervisory personnel on the home health provider and should complete an internal incident report. If it appears that a criminal act has taken place, such as a physical assault, attempted rape, or another such act, this act ought to be reported immediately to local law enforcement agencies. The home care provider also need to immediately notify both patient and the physician that this provider will terminate its relationship together with the patient and that an alternative provider for these services should be obtained.
Other less serious circumstances may, nevertheless, lead the house health provider to determine that it should terminate its relationship having a particular patient. Examples may include particularly abusive patients, patients who solicit -the home health provider professional to interrupt the law (for example, by offering illegal drugs or providing non-covered services and equipment and billing them as another thing), or consistently noncompliant patients. Once treatment methods are undertaken, however, the home health provider is usually obliged to continue providing services prior to the patient has had a fair opportunity to obtain a substitute provider. Precisely the same principles apply to failure of the patient to pay for the skills or equipment provided.
As physicians, HHA personnel should have training on how to handle the difficult patient responsibly. Arguments or emotional comments ought to be avoided. If it becomes clear a certain provider and patient will not be compatible, a replacement provider should be tried. Should it appear that this problem lies with all the patient and that it is essential for the HHA to terminate its relationship using the patient, the following seven steps ought to be taken:
1. Situations should be documented from the patient's record.
2. The property health provider should give or send correspondence to the patient explaining instances surrounding the termination of care.
3. The letter ought to be sent by certified mail, return receipt requested, or any other measures to document patient receiving the letter. A copy in the letter should be used 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 the patient has a life-threatening condition or even a medical condition that might deteriorate in the absence of continuing care, this issue should be clearly stated in the letter. Involve the patient's obtaining replacement home health care should be emphasized.
6. The patient should be informed with the location of the nearest hospital emergency department. The sufferer 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 should 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, a person's case should be thoroughly discussed with all the home health provider's risk manager, legal services, 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 to the tort of abandonment.
Nurses who passively stand by and observe negligence by a physician or someone else will personally become accountable for the patient who is injured due to that negligence... [H]ealthcare facilities in addition to their nursing staff owe an independent duty to patients after dark duty owed by physicians. When a physician's order to discharge is inappropriate, the nurses will probably be help liable for following an investment that they knew or should know is below the standard of care.