Elements of the Cause of Action for Abandonment
All the following five elements has to be present for a patient to experience a proper civil reason behind 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 with no patient's knowledge.
3. Medical care provider failed to arrange for care by another appropriate skilled medical doctor.
4. The health care provider must have reasonably foreseen that problems for the patient would arise in the termination of the care (proximate cause).
5. The patient actually suffered harm or loss on account of the discontinuance of care.
Physicians, nurses, and other health care professionals have an ethical, in addition to a legal, duty to prevent abandonment of patients. The health care professional carries a duty to give her or his patient all necessary attention so long as the case required it and cannot leave the patient inside a critical stage without giving reasonable notice or making suitable arrangements for that attendance of another.
Abandonment with the Physician
When a physician undertakes management of a patient, treatment must continue prior to the patient's circumstances no longer warrant the treatment, health related conditions and the patient mutually agree to end the treatment by that physician, or the patient discharges the physician. Moreover, the physician may unilaterally terminate the partnership and withdraw from treating that patient provided that he or she provides the patient proper notice of her or his intent to withdraw as well as an opportunity to obtain proper substitute care.
In the home health setting, the physician-patient relationship won't terminate merely must be patient's care shifts in the location from the hospital to the home. If the patient is constantly on the need medical services, supervised healthcare, 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 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 within the hospital will continue unless it's been formally terminated by notice to the patient and a reasonable attempt to refer the patient to an alternative appropriate physician. Otherwise, the physician will retain his / her duty toward the individual 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 because of this. This abandonment may expose health related conditions, the hospital, and the home health agency to liability for your tort of abandonment.
The attending physician in the hospital should be sure that a proper referral was created to a physician who will be responsible 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, when the hospital-based physician arranges to have the patient's care assumed by another physician, the patient must fully understand this variation, and it should be carefully documented.
As sustained by case law, the types of actions that will lead to liability for abandonment of the patient will include:
• premature relieve the patient by the physician
• failure in the physician to provide proper instructions before discharging the sufferer
• the statement with the physician to the patient the physician will no longer treat the sufferer
• refusal of the physician to reply to calls or to further attend the individual
• the physician's leaving the patient after surgery or unable to follow up on postsurgical care.
Generally, abandonment doesn't happen if the physician responsible for the patient arranges for any substitute physician to look at his or her place. This transformation may occur because of vacations, relocation from the physician, illness, distance from the 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, if any, has been arranged, the courts in most cases not find that abandonment has occurred. Even the place where a patient refuses to spend the money for care or is not able to pay for the care, the doctor is not at liberty to terminate the relationship unilaterally. The physician must still do something to have the patient's care assumed by another or give a sufficiently reasonable stretch of time to locate another just before ceasing to provide care.
Although almost all 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 given pursuant to a physician's plan of care, set up patient sued problems for abandonment because of the actions (or inactions of the home health agency's staff), the doctor may seek indemnification in the home health provider.
ABANDONMENT Through the NURSE OR HOME HEALTH AGENCY
Similar principles to those who apply to physicians sign up for the home health professional as well as the home health provider. A property health agency, because direct provider of want to the homebound patient, may be held to the same legal obligation and duty to deliver care that addresses a person's needs as is problems. Furthermore, there may be both an authorized and an ethical obligation to continue delivering care, if your 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 keep providing care to the person is a duty owed by the agency itself and never by the individual professional who might be the employee or the contractor with the agency. The home health provider doesn't need a duty to continue supplying the same nurse, therapist, or aide for the patient throughout the treatment, so long as the provider is constantly use appropriate, competent personnel to give the course of treatment consistently with the plan of care. Through the perspective of patient satisfaction and continuity of care, it may be in the best interests of your home health provider to provide the same individual practitioner on the patient. The development of an individual 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 arise in the health care' setting.
In the event the patient requests replacement of a particular nurse, therapist, technician, or home health aide, the home health provider continues to have a duty to provide want to the patient, unless the person also specifically states he / she no longer desires the provider's service. Home health agency supervisors must always follow up on such patient requests to determine the reasons regarding the dismissal, to detect "problem" employees, and to ensure no incident has taken place that might help with liability. The home health agency should continue providing care to the patient until definitively told to avoid so by the patient.
Dealing with 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 baby health care provider should be paramount. Should the patient pose an actual danger to the individual, he / she should leave the premises immediately. The provider should document in the medical record the facts surrounding the inability to complete the treatment for that visit as objectively as is possible. Management personnel should inform supervisory personnel in the home health provider and really should complete an internal incident report. Whether or not this appears that a criminal act has brought place, such as a physical assault, attempted rape, and other such act, this act ought to be reported immediately to law enforcement agencies. The home care provider must also immediately notify both the patient and the physician how the provider will terminate its relationship using the patient and that a different provider for these services must be obtained.
Other less serious circumstances may, nevertheless, lead the property health provider to discover that it should terminate its relationship with a particular patient. Examples can include particularly abusive patients, patients who solicit -the home health provider professional to break the law (for example, by providing 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 normally obliged to continue providing services prior to the patient has had a good opportunity to obtain a substitute provider. Precisely the same principles apply to failure of an patient to pay for the assistance or equipment provided.
As medical professionals, HHA personnel should have training concerning how to handle the difficult patient responsibly. Arguments or emotional comments should be avoided. If it becomes clear that the certain provider and patient will not be compatible, an alternative provider should be tried. Should it appear the problem lies using the patient and that it is important for the HHA to terminate its relationship with the patient, the following seven steps needs to be taken:
1. The circumstances should be documented in the patient's record.
2. The house 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 another measures to document patient receipt of the letter. A copy of the letter should be placed in the patient's record.
4. When 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 a medical condition that might deteriorate even without the continuing care, this issue should be clearly mentioned in the letter. Require the patient's obtaining replacement home healthcare should be emphasized.
6. The person should be informed in the location of the nearest hospital emergency department. The patient should be told with the idea to go to the nearest hospital emergency department in case of a medical emergency or to call the local emergency number for ambulance transportation.
7. A duplicate of the letter should be sent to the patient's attending physician via certified mail, return receipt requested.
These steps should not 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 services, medical director, as well as the patient's attending physician.
The inappropriate relieve a patient from healthcare coverage by the home health provider, whether because of termination of entitlement, being unable to pay, or other reasons, can also lead to liability for your tort of abandonment.
Nurses who passively the stand by position and observe negligence by way of a physician or anybody else will personally become accountable for the patient who is injured as a result of that negligence... [H]ealthcare facilities as well as their nursing staff owe a completely independent duty to patients at night duty owed by physicians. Whenever a physician's order to discharge is inappropriate, the nurses is going to be help liable for following a purchase order that they knew or should be aware of is below the standard of care.