Healthcare Systems

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. 3

In the last few months we’ve seen a lot of Health Care Reform rules and regulations being introduced by the Health and Human Services Department. Every time that happens, the media gets hold of it and all kinds of articles are written in the Wall Street Journal, the New York Times, and the TV network news programs talk about it. All the analysts start talking about the pros and cons, and what it means to businesses and individuals.

The problem with this is, many times one writer looked at the regulation, and wrote a piece about it. Then other writers start using pieces from that first article and rewriting parts to fit their article. By the time the information gets widely distributed, the actual regulations and rules get twisted and distorted, and what actually shows up in the media sometimes just doesn’t truly represent the reality of what the regulations say.

There’s a lot of misunderstanding about what is going on with ObamaCare, and one of the things that I’ve noticed in discussions with clients, is that there’s an underlying set of myths that people have picked up about health care reform that just aren’t true. But because of all they’ve heard in the media, people believe these myths are actually true.

Today we’re going to talk about three myths I hear most commonly. Not everybody believes these myths, but enough do, and others are unsure what to believe, so it warrants dispelling these myths now.

The first one is that health care reform only affects uninsured people. The second one is that Medicare benefits and the Medicare program isn’t going to be affected by health care reform. And then the last one is that health care reform is going to reduce the costs of healthcare.

Health Care Reform Only Affects Uninsured

Let’s look at the first myth about health care reform only affecting uninsured people. In a lot of the discussions I have with clients, there are several expressions they use: “I already have coverage, so I won’t be affected by ObamaCare,” or “I’ll just keep my grandfathered health insurance plan,” and the last one – and this one I can give them a little bit of leeway, because part of what they’re saying is true — is “I have group health insurance, so I won’t be affected by health care reform.”

Well, the reality is that health care reform is actually going to affect everybody. Starting in 2014, we’re going to have a whole new set of health plans, and those plans have very rich benefits with lots of extra features that the existing plans today don’t offer. So these new plans are going to be higher cost.

Health Care Reform’s Effect On People With Health Insurance

People that currently have health insurance are going to be transitioned into these new plans sometime in 2014. So the insured will be directly affected by this because the health plans they have today are going away, and they will be mapped into a new ObamaCare plan in 2014.

Health Care Reform Effect On The Uninsured

The uninsured have an additional issue in that if they don’t get health insurance in 2014, they face a mandate penalty. Some of the healthy uninsured are going to look at that penalty and say, “Well, the penalty is 1% of my adjusted gross income; I make $50,000, so I’ll pay a $500 penalty or $1,000 for health insurance. In that case I’ll just take the penalty.” But either way, they will be directly affected by health care reform. Through the mandate it affects the insured as well as the uninsured.

Health Care Reform Effect On People With Grandfathered Health Plans

People that have grandfathered health insurance plans are not going to be directly affected by health care reform. But because of the life cycle of their grandfathered health plan, it’s going to make those plans more costly as they discover that there are plans available now that they can easily transfer to that have a richer set of benefits that would be more beneficial for any chronic health issues they may have.

For people who stay in those grandfathered plans, the pool of subscribers in the plan are going to start to shrink, and as that happens, the cost of those grandfathered health insurance plans will increase even faster than they are now. Therefore, people in grandfathered health plans will also be impacted by ObamaCare.

Health Care Reform Effect On People With Group Health Insurance

The last one, the small group marketplace, is going to be the most notably affected by health care reform. Even though the health care reform regulations predominantly affect large and medium-sized companies, and companies that have 50 or more employees, smaller companies will also be affected, even though they’re exempt from ObamaCare itself.

What many surveys and polls are starting to show is that some of the businesses that have 10 or fewer employees are going to look seriously at their option to drop health insurance coverage altogether, and no longer have it as an expense of the company. Instead, they will have their employees get health insurance through the health insurance exchanges.

In fact, some of the carriers are now saying they anticipate that up to 50% of small groups with 10 or fewer employees are going to drop their health insurance plan sometime between 2014 and 2016. That will have a very large effect on all people who have group health insurance, especially if they’re in one of those small companies that drop health insurance coverage.

It’s not just uninsured that are going to be affected by health care reform, everybody is going to be impacted.

Health Care Reform Will Not Affect Medicare

The next myth was that health care reform would not affect Medicare. This one is kind of funny because right from the very get-go, the most notable cuts were specifically targeting the Medicare program. When you look at Medicare’s portion of the overall federal, you can see that in 1970, Medicare was 4% of the U.S. federal budget, and by 2011, it had grown to 16% of the federal budget.

If we look at it over the last 10 years, from 2002 to 2012, Medicare is the fastest growing part of the major entitlement programs in the federal government, and it’s grown by almost 70% during that period of time.

Because of how large Medicare is and how fast it’s growing, it’s one of the key programs that ObamaCare is trying to get a handle on, so it doesn’t bankrupts the U.S. Medicare is going to be impacted, and in fact the initial cuts to Medicare have already been set at about $716 billion.

Medicare Advantage Cuts And The Effects

Of that $716 billion cut, the Medicare Advantage program gets cut the most, and will see the bulk of the effects. What that’s going to do is increase the premiums people pay for their Medicare Advantage plans, and reduce the benefits of those plans.

Increased Medicare Advantage Costs

Right now, many people choose Medicare Advantage plans because they have zero premium. When given a choice on Medicare plans, they view it as an easy choice because it’s a free program for them, “Sure, I get Medicare benefits, I don’t pay anything for it; why not.” Now they’re going to see Medicare premiums start to climb, and go from zero to $70, $80, $90, $100. We’ve already seen that with some of the Blue Cross Medicare Advantage plans this year. It’s going to get worse as we go forward in the future.

Reduced Medicare Advantage Benefits

In order to minimize the premium increases, what many Medicare Advantage plans will do is increase the copayments, increase the deductibles, and change the co-insurance rates. In order to keep the premiums down, they’ll just push more of the costs onto the Medicare Advantage recipients. Increased premiums and reduced benefits are what we’re going to see coming in Medicare Advantage plan.

Fewer Medicare Physicians

And then if that wasn’t bad enough, as Medicare doctors begin receiving lower and lower reimbursements for Medicare Advantage people, they’re going to stop taking new Medicare Advantage recipients. We’re going to see the pool of doctors to support people in Medicare starting to shrink as well, unless changes are made over the course of the next five years. So Medicare is going to be affected, and it’s going to be affected dramatically by health care reform. Everybody’s kind of on pins and needles, waiting to see what’s going to happen there.

Health Care Reform Will Reduce Healthcare Costs

The last one, and probably the biggest myth about health care reform, is everybody thinking that ObamaCare will reduce healthcare costs. That’s completely hogwash. Early on in the process, when they were trying to come up with the rules and regulations, the emphasis and one of the goals for reform was to reduce healthcare costs.

But somewhere along the line, the goal actually shifted from cost reduction to regulation of the health insurance industry. Once they made that transition, they pushed cost reductions to the back burner. There are some small cost reduction components in ObamaCare, but the real emphasis is on regulating health insurance. The new plans, for example, have much richer benefits than many plans today: richer benefits means richer prices.

Health Care Reform Subsidies: Will They Make Plans Affordable?

A lot of people hope, “The subsidies are going to make health insurance plans more affordable, won’t they?” Yes, in some cases the subsidies will help to make the plans affordable for people. But if you make $1 too much, the affordable plans are suddenly going to become very expensive and can cost thousands of dollars more over the course of a year. Will a subsidy make it affordable or not affordable is really subject to debate at this point in time. We’re going to have to actually see what the rates look like for these plans.

New Health Care Reform Taxes Passed On To Consumers

Then there’s a whole ton of new health care reform taxes that have been added into the system to help pay for ObamaCare. That means everybody who has a health insurance plan, whether it’s in a large group, a small group, or just as an individual, is going to be taxed in order to pay for the cost of reform. Health care reform adds various taxes on health care that insurance companies will have to collect and pay, but they’re just going to pass it right through to us, the consumer.

Mandate Won’t Reduce Uninsured Very Much

During the initial years of health care reform, the mandate is actually pretty weak. The mandate says that everyone must get health insurance or pay a penalty (a tax). What that’s going to do is make healthy people just sit on the sidelines and wait for the mandate to get to the point where it finally forces them to buy health insurance. People with chronic health conditions that couldn’t get health insurance previously, are all going to jump into healthcare at the beginning of 2014.

At the end of that year, the cost for the plans is going to go up in 2015. I can guarantee that that’s going to happen, because the young healthy people are not going to be motivated to get into the plans. They won’t see the benefit of joining an expensive plan, whereas the chronically ill people are going to get into the plans and drive the costs up.

Health Care Reform’s Purpose Is Just A Matter Of Semantics

The last portion of this is, one of the key things – and it’s funny, I saw it for the first two years, 2010, and ’11 – one of the key things that was listed in the documentation from the Obama administration was: Health Care Reform would help reduce the cost that we would see in the future if we do nothing today. That was emphasized over and over again. That was how they presented health care cost reduction, that it would reduce the future costs. Not today, but it would reduce what we would pay in the future if we did nothing about it now.

Well, that’s great, 10 years from now we’re going to pay less than we might have paid. And we all know how accurate future projections usually are. In the meantime, we’re all paying more today, and we’re going to pay even more in 2014 and more in 2015 and 2016. People are going to be pretty upset about that.

Conclusion

Those three myths, that health care reform is only going to affect the uninsured, that it won’t affect Medicare beneficiaries, and that ObamaCare is going to reduce healthcare costs, are just that. They are myths. There’s nothing to them.

It’s really important that you pay attention to what’s happening with health care reform, because there are more changes that are coming as we go through this year, 2013. Knowing how to position yourself so that you’re in the right spot to be able to make the best decision at the beginning of 2014 is going to be really important for everybody.