Patient Abandonment - Home Health Care

Each of the following five elements must be present for a patient to have a proper civil cause of action for the tort of abandonment:

1. Health 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 health care provider failed to arrange for care by another appropriately skilled health care provider.

4. The health care provider should have reasonably foreseen that harm to the patient would arise from 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 other health care professionals have an ethical, as well as a legal, duty to avoid the abandonment of patients. The health care professional has a duty to give his or her patient all necessary attention as long as the case required it and should not leave the patient in a critical stage without giving reasonable notice or making suitable arrangements for the attendance. [2]

Summary show

Abandonment by the Physician

When a physician undertakes treatment of a patient, treatment must continue until the patient’s circumstances no longer warrant the treatment. The physician 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 relationship and withdraw from treating that patient only if 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 does not terminate merely because a patient’s care shifts in its location from the hospital to the home. If the patient continues to need medical services, supervised health care, therapy, or other home health services, the attending physician should ensure 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 in which the patient’s ‘needs for care have continued. The physician-patient relationship in the hospital will continue unless it has been formally terminated by notice to the patient and a reasonable attempt to refer the patient to another appropriate physician. Otherwise, the physician will retain his or her duty toward the patient when the patient is discharged from the hospital to the home. Failure to follow through on the part of the physician 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 for the tort of abandonment.

The attending physician in the hospital should ensure that a proper referral is made to a physician responsible for the home health patient’s care while the home health provider is delivering it unless the physician intends to continue to supervise that home care personally. Even more important, if the hospital-based physician arranges to have the patient’s care assumed by another physician, the patient must fully understand this change, and it should be carefully documented.

As supported by case law, the types of actions that will lead to liability for abandonment of a patient will include:

• premature discharge of the patient by the physician

• failure of the physician to provide proper instructions before discharging the patient

Read More Articles :

• the statement by the physician to the patient that the physician will no longer treat the patient

• refusal of the physician to respond to calls or to further attend the patient

• the physician’s leaving the patient after surgery or failing to follow up on postsurgical care. [3]

Generally, abandonment does not occur if the physician responsible for the patient arranges for a substitute physician to take his or her place. This change may occur because of vacations, relocation of the physician, illness, distance from the patient’s home, or retirement of the physician. As long as care by an appropriately trained physician, sufficiently knowledgeable of the patient’s special conditions, if any, has been arranged, the courts will usually not find that abandonment has occurred. [4] Even where a patient refuses to pay for the care or cannot pay for the care, the physician is not at liberty to terminate the relationship unilaterally. The physician must still take steps to have the patient’s care assumed by another [5] or give a sufficiently reasonable time to locate another 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 by the home health agency is provided according to a physician’s plan of care, even if the patient sued the physician for abandonment because of the actions (or inactions of the home health agency’s staff), the physician may seek indemnification from the home health provider. [6]

ABANDONMENT BY THE NURSE OR HOME HEALTH AGENCY

Similar principles to those that apply to physicians apply to the home health professional and the home health provider. As the direct provider of care to the homebound patient, a home health agency may be held to the same legal obligation and duty to deliver care that addresses the patient’s needs as is the physician. Furthermore, there may be legal and ethical obligations to continue delivering care if the patient has no alternatives. An ethical obligation may still exist to the patient even though the home health provider has fulfilled all legal obligations. [7]

When a home health provider furnishes treatment to a patient, the duty to continue providing care to the patient is a duty owed by the agency itself and not by the individual professional who may be the employee or the agency’s contractor. The home health provider does not have a duty to continue providing the same nurse, therapist, or aide to the patient throughout the course of treatment, so long as the provider continues to use appropriate, competent personnel to consistently administer the treatment 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 attempt to provide the same individual practitioner to the patient. The development of a personal 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 problems that arise in the health care setting.