Elements of the Cause of Action for Abandonment
Every one of the following five elements must be present for a patient to have a proper civil reason behind 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 minus the patient's knowledge.
3. The health care provider did not arrange for care by another appropriate skilled health care provider.
4. The health care provider must 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 due to the discontinuance of care.
Physicians, nurses, as well as other health care professionals have an ethical, in addition to a legal, duty to avoid abandonment of patients. The medical care professional includes a duty to give his / her patient all necessary attention providing the case required it and cannot 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 treatment of a patient, treatment must continue before patient's circumstances will no longer warrant the treatment, the physician 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 their bond and withdraw from treating that patient as long as he or she provides the patient proper notice of his or her intent to withdraw and 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 rolling around in its location from the hospital to the home. If the patient continues to need medical services, supervised healthcare, therapy, or other home health services, the attending physician should make sure 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 out of 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 to the patient and a reasonable attempt to refer the patient to a different appropriate physician. Otherwise, health related conditions will retain her or his duty toward the patient when the patient is discharged through the hospital to the home. Failure to check out through on the part of the physician will constitute the tort of abandonment in the event the patient is injured therefore. This abandonment may expose the doctor, the hospital, and the home health agency to liability for your tort of abandonment.
The attending physician from the hospital should make sure that a proper referral was designed to a physician who will be to blame for the home health patient's care while it's being delivered through the home health provider, unless the doctor intends to continue to supervise that homecare personally. Even more important, when the hospital-based physician arranges to get the patient's care assumed by another physician, the sufferer must fully understand this transformation, and it should be carefully documented.
As backed up by case law, the sorts of actions that will lead to liability for abandonment of your patient will include:
• premature discharge of the patient by the physician
• failure in the physician to provide proper instructions before discharging the patient
• the statement from the physician to the patient that the physician will no longer treat the individual
• refusal of the physician to answer calls or to further attend the sufferer
• the physician's leaving the patient after surgery or unable to follow up on postsurgical care.
Generally, abandonment does not occur if the physician responsible for the patient arranges for the substitute physician to adopt his or her place. This transformation may occur because of vacations, relocation in the physician, illness, distance from your patient's home, or retirement from the physician. As long as care by an appropriately trained physician, sufficiently knowledgeable with the patient's special conditions, or no, has been arranged, the courts will usually not find that abandonment has occurred. Even where a patient refuses to pay for the care or is unable to pay for the care, problems is not at liberty to terminate the connection unilaterally. The physician must still make a plan to have the patient's care assumed by another or to give a sufficiently reasonable stretch 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 above previously, the same principles sign up for all health care providers. Furthermore, because the care rendered with the home health agency is given pursuant to a physician's plan of care, get the job done patient sued health related conditions for abandonment due to the actions (or inactions of the house health agency's staff), the doctor may seek indemnification in the home health provider.
ABANDONMENT From the NURSE OR HOME HEALTH AGENCY
Similar principles to those that apply to physicians affect the home health professional and also the home health provider. A property health agency, because direct provider of choose to the homebound patient, could 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 a legal and an ethical obligation to keep delivering care, if your patient has no alternatives. A moral obligation may still exist to the patient even though the home health provider has fulfilled all legal obligations.
When a home health provider furnishes treatment into a patient, the duty to keep providing care to the sufferer is a duty owed from the agency itself instead of by the individual professional who might be the employee or the contractor with the agency. The home health provider doesn't have a duty to continue giving the same nurse, therapist, or aide for the patient throughout the treatment course, so long as the provider is constantly use appropriate, competent personnel to provide the course of treatment consistently together with the plan of care. From 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 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 conditions 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 desire to the patient, unless the sufferer also specifically states he or she no longer desires the provider's service. Home health agency supervisors must always follow up on such patient requests to ascertain 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 want to the patient until definitively told to refrain from doing so by the patient.
Handling THE ABUSIVE PATIENT
Home health provider personnel may occasionally encounter an abusive patient. This abuse mayor is probably not a result of the medical condition in which the care is being provided. Personal safety of the person health care provider should be paramount. When the patient pose a physical danger to the individual, he / she should leave the premises immediately. The company should document in the medical record the facts around the inability to complete the procedure for that visit as objectively as you can. Management personnel should inform supervisory personnel with the home health provider and really should complete an internal incident report. Whether it appears that a criminal act has had place, such as a physical assault, attempted rape, or another such act, this act should be reported immediately to law enforcement agencies. The home care provider also need to immediately notify the patient and the physician the provider will terminate its relationship with the patient and that a different provider for these services needs to be obtained.
Other less serious circumstances may, nevertheless, lead the home health provider to ascertain that it should terminate its relationship with a particular patient. Examples may 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 solutions are undertaken, however, the property 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 an 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 ought to be avoided. If it becomes clear that a certain provider and patient will not be compatible, a substitute provider should be tried. Should it appear how the problem lies with all the patient and that it is necessary for the HHA to terminate its relationship with all the patient, the following seven steps should be taken:
1. Situations should be documented from the patient's record.
2. The property health provider should give or send a letter to the patient explaining instances surrounding the termination of care.
3. The letter needs to be sent by certified mail, return receipt requested, and other measures to document patient delivery of the letter. A copy with the letter should be put into the patient's record.
4. Whenever possible, the patient should be given a specific period of time to obtain replacement care. Usually Four weeks is sufficient.
5. If the patient has a life-threatening condition or a medical condition that might deteriorate even without continuing care, this issue should be clearly mentioned in the letter. The need 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 patient should be told to either go to the nearest hospital emergency department in case of a medical emergency as well as to call the local emergency number for ambulance transportation.
7. A reproduction of the letter must be sent to the patient's attending physician via certified mail, return receipt requested.
These steps shouldn't be undertaken lightly. Before such steps are taken, the patient's case should be thoroughly discussed with the home health provider's risk manager, legal counsel, medical director, as well as the patient's attending physician.
The inappropriate discharge of a patient from medical coverage by the home health provider, whether as a result of termination of entitlement, being unable to pay, or other reasons, could also lead to liability to the tort of abandonment.
Nurses who passively stand by and observe negligence by the physician or anyone else will personally become accountable to the patient who is injured due to that negligence... [H]ealthcare facilities along with 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 probably be help liable for following an order that they knew or should be aware of is below the standard of care.