Patient Abandonment – Home Health Care

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. 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 appropriate 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 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 of another. [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 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 that existed 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 who will be responsible for the home health patient’s care while it is being delivered by the home health provider, 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

• 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 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 to give a sufficiently reasonable period of time to locate another prior to 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 pursuant 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. A home health agency, as the direct provider of care to the homebound patient, 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 both a legal and an ethical obligation 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 contractor of the agency. 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 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. 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.

If the patient requests replacement of a particular nurse, therapist, technician, or home health aide, the home health provider still has a duty to provide care to the patient, unless the patient also specifically states he or she no longer desires the provider’s service. Home health agency supervisors should 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 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 mayor may 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 a physical danger to the individual, he or 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 possible. Management personnel should inform supervisory personnel at the home health provider and should complete an internal incident report. If it appears that a criminal act has taken place, such as a physical assault, attempted rape, or other such act, this act should be reported immediately to local law enforcement agencies. The home care provider should also immediately notify both the patient and the physician that the provider will terminate its relationship with the patient and that an alternative provider for these services should be obtained.

Other less serious circumstances may, nevertheless, 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 providing non-covered services and equipment and billing them as something else), or consistently noncompliant patients. Once treatment is undertaken, however, the home health provider is usually obliged to continue providing services until the patient has had a reasonable opportunity to obtain a substitute provider. The same principles apply to failure of a patient to pay for the services or equipment provided.

As health care professionals, HHA personnel should have training on how to handle the difficult patient 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 it is necessary for the HHA to 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 patient 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 certain period of time to obtain replacement care. Usually 30 days is sufficient.

5. If the patient has a life-threatening condition or a medical condition that might deteriorate in the absence of continuing care, this condition should be clearly stated in the letter. The necessity of the patient’s obtaining 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 either 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 copy 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 counsel, medical director, and the patient’s attending physician.

The inappropriate discharge of a patient from health care coverage by the home health provider, whether because of termination of entitlement, inability to pay, or other reasons, may also lead to liability for the tort of abandonment. [8]

Nurses who passively stand by and observe negligence by a physician or anyone else will personally become accountable to the patient who is injured as a result of that negligence… [H]ealthcare facilities and their nursing staff owe an independent duty to patients beyond the duty owed by physicians. When a physician’s order to discharge is inappropriate, the nurses will be help liable for following an order that they knew or should know is below the standard of care. [9]

Similar principles may apply to make the home health provider vicariously liable, as well.

Liability to the patient for the tort of abandonment may also result from the home health care professional’s failure to observe, examine, assess, or monitor a patient’s condition. [10] Liability for abandonment may arise from failing to take timely action, as well as failing to summon a physician when a physician is needed. [11] Failing to provide adequate staff to meet the patient’s needs may also constitute abandonment on the part of the HHA. [12] Ignoring a patient’s complaints and failing to follow a physician’s orders may likewise constitute a tort of abandonment for a nurse or other professional staff member.

1. Lee v. Dewbre, 362 S.W.2d 900 (Tex. Civ. App. 7th Dist. 1962).

2. Kattsetos v. Nolan, 368 A.2d 172 (Conn. 1976).

3. 61 AM. Jur. 2d, Physicians and Surgeons § 237 (1981).

4. See, e.g., Tripp v. Pate, 271 S.E.2d 407 (N.C. App. 1980).

5. Ricks v. Budge, 64 P.2d 208 (Utah 1937).

6. M.D. Nathanson, Home Healthcare Answer Book: Legal Issues for Providers 212 (1995).

7. See, generally, E.P. Burnzeig, The Nurse’s Liability for Malpractice (1981).

8. Sheryl Feutz-Harter, Nursing Caselaw Update: In appropriate Discharging of Patients, 2 J. Nursing L. 49 (1995).

9. Id., 53.

10. See, e.g., Pisel v. Stamford Hosp., 430 A.2d1 (Conn. 1980) (nurses were held liable for failing to monitor the condition of a patient).

11. See, e.g., Sanchez v. Bay General Hosp., 172 Cal. Rptr. 342 (Cal. App. 1981); Valdez v. Lyman-Roberts Hosp., Inc. 638 S.W. 2d 111 (Tex. 1982).

A Socialized Health Care System Requires Population Control and Impeccable Registries

In a nationalized health care system, you need to know who is who – otherwise the system could never be able determine who is entitled. The structure depends on how the system is created and designed, but with a nationalized health care system you will be tracked by the state where you reside and how you move in a manner that is unseen in America. The nationalized health care system becomes a vehicle for population control.

If you leave the United States and are no longer a resident of the state, even if you are a citizen and might maintain a driving license, you will have to report immediately if you want to avoid the 13% health care tax. I use the number 13% as it is in Sweden to exemplify the actual tax pressure that is laid upon you for the nationalized health care.

Let’s say you moved and you do not want to pay the 13% tax for services you do not receive, can receive, or want to taken out from the tax roll. The mammoth entity has no interest to let you go so easy. You will end up having to reveal your private life – partner, dwellings, travel, money, and job to prove your case that you have the right to leave the public health care system and do not need to pay the tax. If you have to seek an appeal, your information could be a part of administrative court documents that are open and public documents. As soon as you return to the United States, you will be automatically enrolled again and the taxes start to pile up.

Public universal health care has no interest in protecting your privacy. They want their tax money and, to fight for your rights, you will have to prove that you meet the requirements to not be taxable. In that process, your private life is up for display.

The national ID-card and national population registry that includes your medical information is a foundation of the nationalized health care system. You can see where this is going – population control and ability to use the law and health care access to map your whole private life in public searchable databases owned and operated by the government.

By operating an impeccable population registry that tracks where you live, who you live with, when you move and your citizen status including residency the Swedes can separate who can receive universal health care from those not entitled. The Swedish authorities will know if you have a Swedish social security number, with the tap of the keyboard, more information about yourself than you can remember. The Swedish government has taken sharing of information between agencies to a new level. The reason is very simple – to collect health care tax and suppress any tax evasion.

It is heavily centralized and only the central administration can change the registered information in the data. So if you want to change your name, even the slightest change, you have to file an application at a national agency that processes your paperwork. This centralized population registry makes it possible to determine who is who under all circumstances and it is necessary for the national health care system. Otherwise, any person could claim to be entitled.

To implement that in the United States requires a completely new doctrine for population registry and control. In an American context that would require that every existing driving license had to be voided and reapplied under stricter identification rules that would match not only data from Internal Revenue Service, state government, municipal government, Social Security Administration, and Department of Homeland Security but almost any agency that provides services to the general public. The reason why a new population registry would be needed in the United States is the fact that lax rules dating back to the 1940s up until the War on Terrorism, and stricter identification criteria following 9/11, has made a significant percentage of personal information about individuals questionable.

If America instead neglects maintaining secure records, determining eligibility for public health care would not be possible and the floodgates for fraud would open and rampant misuse of the system would prevail. This would eventually bring down the system.

It is financially impossible to create a universal health care system without clearly knowing who is entitled and not. The system needs to have limits of its entitlement. A social security number would not be enough as these numbers have been handed out through decades to temporary residents that might not even live in the United States or might today be out of status as illegal immigrants.

The Congress has investigated the cost of many of the “public options”, but still we have no clear picture of the actual realm of the group that would be entitled and under which conditions. The risk is political. It is very easy for political reasons to extend the entitlement. Politicians would have a hard time being firm on illegal immigrants’ entitlement, as that would put the politicians on a collision course with mainly the Hispanic community as they represent a significant part of the illegal immigrants. So the easy sell is then that everyone that is a legal resident alien or citizen can join according to one fee plan and then the illegal immigrants can join according to a different fee structure. That assumes that they actually pay the fee which is a wild guess as they are likely to be able to get access to service without having to state that they are illegal immigrants.

It would work politically – but again – without an impeccable population registry and control over who is who on a national level, this is unlikely to succeed. The system would be predestined to fail because of lack of funds. If you design a system to provide the health care needs for a population and then increase that population without any additional funds – then naturally it would lead to a lower level of service, declined quality, and waiting lists for complex procedures. In real terms, American health care goes from being a first world system to a third world system.

Thousands, if not a million, American residents live as any other American citizen but they are still not in good standing with their immigration even if they have been here for ten or fifteen years. A universal health care system will raise issues about who is entitled and who is not.

The alternative is for an American universal health care system to surrender to the fact that there is no order in the population registry and just provide health care for everyone who shows up. If that is done, costs will dramatically increase at some level depending on who will pick up the bill – the state government, the federal government, or the public health care system.

Illegal immigrants that have arrived within the last years and make up a significant population would create an enormous pressure on a universal health care, if implemented, in states like Texas and California. If they are given universal health care, it would be a pure loss for the system as they mostly work for cash. They will never be payees into the universal health care system as it is based on salary taxes, and they do not file taxes.

The difference is that Sweden has almost no illegal immigrants compared to the United States. The Swedes do not provide health care services for illegal immigrants and the illegal immigrants can be arrested and deported if they require public service without good legal standing.

This firm and uniform standpoint towards illegal immigration is necessary to avoid a universal health care system from crumbling down and to maintain a sustainable ratio between those who pay into the system and those who benefit from it.

The working middle class that would be the backbone to pay into the system would not only face that their existing health care is halved in its service value – but most likely face higher cost of health care as they will be the ones to pick up the bill.

The universal health care system would have maybe 60 million to 70 million “free riders” if based on wage taxes, and maybe half if based on fees, that will not pay anything into the system. We already know that approximately 60 million Americans pay no taxes as adults add to that the estimated 10-15 million illegal immigrants.

There is no way that a universal health care system can be viably implemented unless America creates a population registry that can identify the entitlements for each individual and that would have to be designed from scratch to a high degree as we can not rely on driver’s license data as the quality would be too low – too many errors.

Many illegal immigrants have both social security numbers and driver’s licenses as these were issued without rigorous control of status before 9/11. The alternative is that you had to show a US passport or a valid foreign passport with a green card to be able to register.

Another problematic task is the number of points of registration. If the registration is done by hospitals – and not a federal agency – then it is highly likely that registration fraud would be rampant. It would be very easy to trespass the control of eligibility if it is registered and determined by a hospital clerk. This supports that the eligibility has to be determined by a central administration that has a vast access to data and information about our lives, income, and medical history. If one single registration at a health care provider or hospital would guarantee you free health care for life and there is no rigorous and audited process – then it is a given that corruption, bribery, and fraud would be synonymous with the system.

This requires a significant level of political strength to confront and set the limits for who is entitled – and here comes the real problem – selling out health care to get the votes of the free riders. It is apparent that the political power of the “free” health care promise is extremely high.

A promise that can not alienate anyone as a tighter population registry would upset the Hispanic population, as many of the illegal immigrants are Hispanics – and many Hispanics might be citizens by birth but their elderly parents are not. Would the voting power of the younger Hispanics act to put pressure to extend health care to elderly that are not citizens? Yes, naturally, as every group tries to maximize its own self-interest.

The risk is, even with an enhanced population registry, that the group of entitled would expand and put additional burden on the system beyond what it was designed for. That could come though political wheeling and dealing, sheer inability from an administrative standpoint to identify groups, or systematic fraud within the system itself.

We can speculate about the outcome but the challenges are clear. This also represents a new threat to the privacy and respect for the private sphere of the citizenry as an increased population registration and control empowers the government with more accurate information about our lives and the way we live our lives. Historically, has any government when given the opportunity to get power taken that opportunity and given that power back to the people after the initial objective was reached? Governments like to stick to power.

To ensure the universal health care system is designed to function as intended it, would require procedures that would limit fraud, amass a significant amount of personal information, have access to all your medical data, and also determine who you are beyond any doubt. Just to be able to determine if you are entitled or not and, track the expenditures you generate.

The aggregation of these data could also open the floodgates for any data mining within these data under the pure excuse that it would help the universal health care system to better “serve you” and lower the costs.

To lower the costs also means to identify which procedures should not be done on which type of patients as it is not viable based on the government’s interest to optimize your productivity under your life cycle. The collection of data has a tendency to look inviting and good when we start to collect it but aggregated data and personal information creates a deep intrusion in our privacy.