Elements of the Cause of Action for Abandonment
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. Healthcare treatment was unreasonably discontinued.
2. The termination of health care was contrary to the patient’s will or without knowledge.
3. The health care provider failed to arrange care by another appropriately skilled 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 suffered harm or loss due to 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 must give their patient all necessary attention as long as the case requires it and should not leave the patient in a critical stage without giving reasonable notice or making suitable arrangements for attendance. [2]
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 they provide the patient proper notice of their intent to cancel and an opportunity to obtain appropriate 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 needs medical services, supervised health care, therapy, or other home health services, the attending physician should ensure they are properly discharged from their 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 patients ‘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 their duty toward the patient when 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. This abandonment may expose the physician, the hospital, and the home health agency to liability for the tort of abandonment.
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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. At the same time, it is being delivered by the home health provider unless the physician intends to continue personally supervising that home care. 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 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
• 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 to 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 their place. This change may occur because of vacations, physician relocation, illness, distance from the patient’s home, or physician retirement. As long as care by an appropriately trained physician sufficiently knowledgeable of the patient’s special conditions 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 is unable to 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 healthcare providers. Furthermore, because the care rendered by the home health agency is provided under 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 care provider 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 the physician. Furthermore, there may be a legal and ethical obligation to continue providing care if the patient has no alternatives. A moral 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 is 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 treatment so long as the provider continues to use appropriate, competent personnel to administer the course of treatment consistently with the 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. Developing a personal relationship with the provider’s personnel may improve communication and a greater degree of trust and compliance on the part of the patient. It should help alleviate many of the problems in the healthcare setting.
If the patient requests replacing a particular nurse, therapist, technician, or home health aide, the home health provider still must provide care unless the patient specifically states they no longer desire the provider’s service. Home health agency supervisors should always follow up on such patient requests to determine the reasons for the dismissal, detect “problem” employees, and ensure no incident that might give rise to liability. The home health agency should continue providing care to the patient until definitively told not to do so by the patient.
COPING WITH THE ABUSIVE PATIENT
Home health provider personnel may occasionally encounter an abusive patient. This abuse may not result from the medical condition for which the care is provided. The personal safety of the individual healthcare provider should be paramount. Should the patient pose a physical danger to the individual, they should leave the premises immediately. The provider should document the facts surrounding the inability to complete the treatment for that visit as objectively as possible in the medical record.
Management personnel should inform the home health provider’s supervisory personnel and complete an internal incident report. Suppose it appears that a criminal act has taken place, such as a physical assault, attempted rape, or other such action. In that case, this act should be reported immediately to local law enforcement agencies. The home care provider should also immediately notify the patient and the physician that the provider will terminate its relationship with the patient and obtain an alternative provider for these services.
Nevertheless, other less serious circumstances may lead the home health provider to determine 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 providing illegal drugs or non-covered services and equipment and billing them as something else), or consistently non-compliant patients. Once treatment is undertaken, however, the home health provider is obliged to continue providing services until the patient has had a reasonable opportunity to obtain a substitute provider. The same principles apply to the failure of a patient to pay for the services or equipment provided.
As health care professionals, HHA personnel should be trained to handle difficult patients responsibly. Arguments or emotional comments should be avoided. If it becomes clear that a certain provider and patient are not likely to be compatible, a substitute provider should be tried. Should it appear that the problem lies with the patient and that the HHA must terminate its relationship with the patient, the following seven steps should be taken:
1. The circumstances should be documented in the patient’s record.
2. The home health provider should give or send a letter to the patient explaining the circumstances surrounding the termination of care.
3. The letter should be sent by certified mail, return receipt requested, or other measures to document the patient’s receipt of the letter. A copy of the letter should be placed in the patient’s record.
4. If possible, the patient should be given a period to obtain replacement care. Usually, 30 days is sufficient.
5. If the patient has a life-threatening medical condition that might deteriorate without continuing care, the letter should clearly state this condition. The patient’s need to obtain replacement home health care should be emphasized.
6. The patient should be informed of the location of the nearest hospital emergency department. The patient should be told to go to the closest hospital emergency department in case of a medical emergency or call the local emergency number for ambulance transportation.
7. A copy of the letter should be sent to the patient’s attending physician via certified mail, return receipt requested.
