Elements of the Cause of Action for Abandonment
Each of the following five elements have to be present for a patient to experience a proper civil reason for action for the tort of abandonment:
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1. Medical treatment was unreasonably discontinued.
2. The termination of healthcare was contrary to the patient’s will or with no patient’s knowledge.
3. Medical care provider did not arrange for care by another appropriate skilled health care provider.
4. The health care provider really should have reasonably foreseen that injury to the patient would arise through the termination of the care (proximate cause).
5. The patient actually suffered harm or loss as a result of the discontinuance of care.
Physicians, nurses, and also other health care professionals have an ethical, and a legal, duty to prevent abandonment of patients. The medical care professional carries a duty to give his / her patient all necessary attention provided that the case required it and cannot leave the patient inside a critical stage without giving reasonable notice or making suitable arrangements for your attendance of another.
Abandonment by the Physician
When a physician undertakes treatments for a patient, treatment must continue prior to the patient’s circumstances no longer warrant the treatment, the physician and the patient mutually consent to end the treatment with that physician, or the patient discharges the doctor. 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 or her intent to withdraw and an opportunity to obtain proper substitute care.
In the home health setting, the physician-patient relationship doesn’t terminate merely because a patient’s care shifts in the location from the hospital towards the home. If the patient will continue 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 on the patient. Virtually every situation ‘in which home care is approved by Medicare, Medicaid, or perhaps 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’s been formally terminated by notice for the patient and a reasonable make an effort to refer the patient to a new appropriate physician. Otherwise, problems will retain their duty toward the individual when the patient is discharged in the hospital to the home. Failure to adhere to through on the part of problems will constitute the tort of abandonment in the event the patient is injured consequently. This abandonment may expose problems, the hospital, and the home health agency to liability for your tort of abandonment.
The attending physician in the hospital should ensure that a proper referral is made to a physician who will be in charge of the home health patient’s care even though it is being delivered by the home health provider, unless problems intends to continue to supervise that home care personally. Even more important, if the hospital-based physician arranges to offer the patient’s care assumed by another physician, the individual must fully understand this transformation, and it should be carefully documented.
As supported by case law, like actions that will cause 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 individual
• the statement through the physician to the patient how the physician will no longer treat the sufferer
• refusal of the physician to reply to calls or to further attend the person
• the physician’s leaving the person after surgery or failing to follow up on postsurgical care.
Generally, abandonment doesn’t occur if the physician in charge of the patient arranges to get a substitute physician to adopt his or her place. This modification may occur because of vacations, relocation in the physician, illness, distance from your 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, or no, has been arranged, the courts in most cases not find that abandonment has occurred. Even when a patient refuses to pay for the care or is not able to pay for the care, the physician is not at liberty to terminate their bond 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 just before ceasing to provide care.
Although the majority 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, for the reason that care rendered with the home health agency is supplied pursuant to a physician’s plan of care, even if the patient sued the physician for abandonment due to actions (or inactions of the house health agency’s staff), health related conditions may seek indemnification from the home health provider.
ABANDONMENT With the NURSE OR HOME HEALTH AGENCY
Similar principles to those that apply to physicians connect with the home health professional along with the home health provider. Your house health agency, because the direct provider of care to the homebound patient, might be held to the same legal obligation and duty to supply care that addresses the patient’s needs as is the doctor. Furthermore, there may be both a legal and an ethical obligation to continue delivering care, if the patient has no alternatives. A moral obligation may still exist on 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 continue providing care to the sufferer is a duty owed from the agency itself and never by the individual professional who seems to be the employee or the contractor from the agency. The home health provider won’t have a duty to continue offering the same nurse, therapist, or aide on the patient throughout the course of treatment, so long as the provider is constantly use appropriate, competent personnel to give the course of treatment consistently with the plan of care. From 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 towards the patient. The development of a private relationship with the provider’s personnel may improve communications and a greater degree of trust and compliance on the part of the patient. It should help to alleviate many of the conditions that arise in the health care’ setting.
If your patient requests replacing a particular nurse, therapist, technician, or home health aide, the home health provider still has a duty to provide want 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 look for the reasons regarding the dismissal, to detect “problem” employees, and to ensure no incident has taken place that might produce liability. The home health agency should continue providing care to the patient until definitively told to refrain from giving so by the patient.
Dealing with 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 for which the care is being provided. Personal safety of the individual health care provider should be paramount. Should the patient pose an actual physical danger to the individual, he / she 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 possibly can. Management personnel should inform supervisory personnel on the home health provider and will complete an internal incident report. Whether it appears that a criminal act has taken place, such as a physical assault, attempted rape, or other such act, this act needs to be reported immediately to local law enforcement agencies. The home care provider should also immediately notify the 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 property health provider to discover that it should terminate its relationship having a particular patient. Examples might 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 something different), or consistently noncompliant patients. Once treatment solutions are undertaken, however, the property health provider is often obliged to continue providing services prior to the patient has had a fair opportunity to obtain a substitute provider. The same principles apply to failure of a patient to pay for the help or equipment provided.
As physicians, HHA personnel should have training on how to handle the difficult patient responsibly. Arguments or emotional comments needs to be avoided. If it becomes clear which a certain provider and patient will not be compatible, an alternative provider should be tried. Should it appear that the problem lies together with the patient and that it is important for the HHA to terminate its relationship with the patient, the following seven steps should be taken:
1. Situations should be documented within the patient’s record.
2. The home health provider should give or send a letter 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 receiving the letter. A copy of the letter should be put 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. When the patient has a life-threatening condition or perhaps a medical condition that might deteriorate without continuing care, this disorder should be clearly stated in the letter. Involve the patient’s obtaining replacement home healthcare should be emphasized.
6. The person should be informed with the location of the nearest hospital emergency department. The sufferer should be told to either 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 reproduction 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 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 due to termination of entitlement, lack of ability to pay, or other reasons, can also lead to liability for that tort of abandonment.
Nurses who passively uphold and observe negligence by way of a physician or other people will personally become accountable on the patient who is injured due to that negligence… [H]ealthcare facilities as well as their nursing staff owe an independent duty to patients after dark duty owed by physicians. Each time a physician’s order to discharge is inappropriate, the nurses will probably be help liable for following a purchase order that they knew or should be aware of is below the standard of care.