Elements of the Cause of Action for Abandonment
Each of the following five elements must be present for a patient to get a proper civil cause of action for the tort of abandonment:
1. Health care treatment was unreasonably discontinued.
2. The termination of healthcare was contrary to the patient's will or with no patient's knowledge.
3. The medical care provider didn't arrange for care by another appropriate skilled health care provider.
4. The health care provider needs to have reasonably foreseen that trouble for the patient would arise through the termination of the care (proximate cause).
5. The sufferer actually suffered harm or loss as a result of the discontinuance of care.
Physicians, nurses, along with other health care professionals have an ethical, in addition to a legal, duty to prevent abandonment of patients. Medical care professional includes a duty to give her or his patient all necessary attention so long as the case required it and cannot leave the patient in the critical stage without giving reasonable notice or making suitable arrangements for that attendance of another.
Abandonment by the Physician
When a physician undertakes treatments for a patient, treatment must continue until the patient's circumstances no more warrant the treatment, health related conditions and the patient mutually agree to end the treatment by that physician, or the patient discharges problems. Moreover, the physician may unilaterally terminate the connection and withdraw from treating that patient as long as he or she provides the patient proper notice of his / her intent to withdraw and an opportunity to obtain proper substitute care.
In the house health setting, the physician-patient relationship doesn't terminate merely because a patient's care shifts in the location from the hospital for the home. If the patient is constantly on the 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 towards the patient. Virtually every situation 'in which homecare is approved by Medicare, Medicaid, or an insurer will be one inch which the patient's 'needs for care have continued. The physician-patient relationship that existed inside the hospital will continue unless many experts have formally terminated by notice to the patient and a reasonable try and refer the patient to an alternative appropriate physician. Otherwise, the doctor will retain her or his duty toward the patient when the patient is discharged from the hospital to the home. Failure to follow through on the part of problems will constitute the tort of abandonment if the patient is injured as a result. This abandonment may expose the physician, 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 designed 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 the doctor intends to continue to supervise that home care personally. Even more important, if your hospital-based physician arranges to achieve the patient's care assumed by another physician, the sufferer must fully understand this transformation, and it should be carefully documented.
As supported by case law, the types of actions that will result in liability for abandonment of a patient will include:
• premature relieve the patient by the physician
• failure from the physician to provide proper instructions before discharging the patient
• the statement through the physician to the patient how the physician will no longer treat the individual
• refusal of the physician to respond to calls or to further attend the individual
• the physician's leaving the individual after surgery or unable to follow up on postsurgical care.
Generally, abandonment doesn't happen if the physician accountable for the patient arranges for the substitute physician to adopt his or her place. This transformation may occur because of vacations, relocation of 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 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 physician is not at liberty to terminate the partnership unilaterally. The physician must still do something to have the patient's care assumed by another as well as to give a sufficiently reasonable time period 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 apply to all health care providers. Furthermore, because the care rendered with the home health agency is provided pursuant to a physician's plan of care, whether or not the patient sued problems for abandonment due to actions (or inactions of the home health agency's staff), the physician may seek indemnification in the home health provider.
ABANDONMENT Through the NURSE OR HOME HEALTH AGENCY
Similar principles to those who apply to physicians affect the home health professional and the home health provider. Your house health agency, as the direct provider of desire to the homebound patient, might be held to the same legal obligation and duty to supply care that addresses a person's needs as is health related conditions. Furthermore, there may be both an authorized and an ethical obligation to carry on 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.
When a home health provider furnishes treatment to a patient, the duty to remain providing care to the patient is a duty owed with the agency itself rather than by the individual professional who may be the employee or the contractor in the agency. The home health provider won't 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 is constantly on the use appropriate, competent personnel to provide the course of treatment consistently with all the plan of care. In the perspective of patient satisfaction and continuity of care, it might be in the best interests of the property health provider to try to provide the same individual practitioner on the patient. The development of a private relationship with the provider's personnel may improve communications as well as a greater degree of trust and compliance by the patient. It should assist to alleviate many of the conditions that arise in the health care' setting.
If your patient requests replacement of a particular nurse, therapist, technician, or home health aide, the house health provider continues to have a duty to provide care to the patient, unless the individual also specifically states he or she no longer desires the provider's service. Home health agency supervisors should follow up on such patient requests to look for the reasons regarding the dismissal, to identify "problem" employees, and to ensure no incident has brought place that might bring about liability. The home health agency should continue providing care to the patient until definitively told to refrain from doing so by the patient.
Managing THE ABUSIVE PATIENT
Home health provider personnel may occasionally encounter an abusive patient. This abuse mayor may not be a result of the medical condition in which 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 surrounding the inability to complete treatments for that visit as objectively as you can. Management personnel should inform supervisory personnel with the home health provider and may complete an internal incident report. If it appears that a criminal act has taken place, such as a physical assault, attempted rape, and other such act, this act must be reported immediately to local law enforcement agencies. The home care provider also needs to immediately notify the two patient and the physician that the provider will terminate its relationship using the patient and that a different provider for these services should be obtained.
Other less serious circumstances may, nevertheless, lead the property health provider to ascertain 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 break the law (for example, by giving illegal drugs or providing non-covered services and equipment and billing them as another thing), or consistently noncompliant patients. Once treatment is undertaken, however, your home health provider is generally obliged to continue providing services until the patient has had a good opportunity to obtain a substitute provider. The same principles apply to failure of the patient to pay for the skills or equipment provided.
As medical professionals, 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 are not likely to be compatible, a substitute provider should be tried. Should it appear how the problem lies using the patient and that it is important for the HHA to terminate its relationship using the patient, the following seven steps ought to be taken:
1. Situations should be documented in the patient's record.
2. The home health provider should give or send instructions to the patient explaining situations surrounding the termination of care.
3. The letter needs to 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 placed in the patient's record.
4. When possible, the patient should be given a certain period of time to obtain replacement care. Usually 1 month is sufficient.
5. In the event the patient has a life-threatening condition or a medical condition that might deteriorate even without continuing care, this condition should be clearly stated in the letter. The need of the patient's obtaining replacement home medical care should be emphasized.
6. The patient should be informed of the location of the nearest hospital emergency department. The sufferer should be told either to go to the nearest hospital emergency department in case there is a medical emergency as well as to call the local emergency number for ambulance transportation.
7. A duplicate of the letter must 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, legal services, medical director, and the patient's attending physician.
The inappropriate relieve a patient from healthcare coverage by the home health provider, whether as a consequence of termination of entitlement, inability to pay, or other reasons, could also lead to liability to the tort of abandonment.
Nurses who passively uphold and observe negligence by the physician or someone else will personally become accountable on the patient who is injured because of that negligence... [H]ealthcare facilities and their nursing staff owe an unbiased duty to patients beyond the duty owed by physicians. Each time a physician's order to discharge is inappropriate, the nurses is going to be help liable for following an order that they knew or should be aware of is below the standard of care.