Time to review information about liability for abandonment of patients in a world afflicted with coronavirus!
First, a number of rules applicable to providers have been relaxed in recent days. There are still, however, rules that must be followed.
For the time being, providers have a “boatload” of goodwill from regulators, enforcers and lawmakers. But if they start getting information about patients being adversely affected by providers’ actions, their goodwill will disappear quickly. Don’t squander it!
In addition, when the state of emergency is over, it will be business as usual and providers will surely be held responsible for their practices. Don’t pay the price retrospectively!
It’s clear that the well-being of patients remains paramount, but it’s also clear that staff members must be protected. Staff members’ fears and concerns are surely legitimate. Nonetheless, when services are discontinued, providers must take great care to make sure that patients are not adversely affected as a result.
Providers are at risk for legal liability when they terminate services to patients. One type of liability that providers may incur is liability for abandonment of patients. Providers often speak of abandonment as though it is equivalent to termination of services. On the contrary, patients who want to hold providers liable for abandonment must show that:
- Providers unilaterally terminated the provider/patient relationship
- Without reasonable notice
- When further action was needed
Patients who fail to prove any one of these requirements are likely to lose their lawsuits against providers.
As indicated above, abandonment requires unilateral termination of the relationship between the patient and the provider by the provider. Patients who terminate relationships with providers, therefore, lose the ability to bring a successful claim for this type of liability. Some patients and their families don’t want visits from home care providers right now because they are worried about contracting the coronavirus from them. When patients terminate relationships with providers, it is clear that providers have no liability.
The second requirement of abandonment means that providers who give patients reasonable notice prior to termination of services will not be liable for abandonment. The key question is: what is “reasonable” notice? Providers are advised to view what is reasonable on an individualized basis.
Providers must conduct a case conference to determine a reasonable amount of notice to patients. Participants in the case conference must take into account all relevant factors when making decisions about reasonable notice periods. They should, for example, consider availability of staff, what patients want, the clinical condition of patients and their mental status, availability of alternative sources of care, etc. The results of case conferences must be documented.
A reasonable period of time, unless a specified period of notice is mandated by state statutes or regulations, is probably between one and three days for most patients. After staff members agree upon a reasonable notice period, patients and attending physicians should receive verbal and written notice. Written notices should be hand-delivered to patients’ homes. Although it is desirable, it is unnecessary to obtain a signature verifying receipt.
Finally, providers can defeat claims of abandonment if patients for whom services are discontinued need no further attention. How do providers know whether further attention is needed? Is this requirement as subjective as it appears?
On the contrary, judges are likely to make retrospective determinations about whether further attention was needed. The basis for such determinations will probably be whether patients were injured as a result of termination. In other words, the law is likely to conclude that no further attention was needed, so long as patients are not injured as a result of termination of services.
What kind of injury must patients prove? Can patients who attempt to prove emotional damage only as a result of termination of services by case managers win lawsuits?
The “good news” for providers is that courts generally require proof of physical injury or damage before they will find providers liable for abandonment. Providers must, therefore, take appropriate steps to make certain that patients are not physically injured as a result of termination of services. In some instances, appropriate action may include sending an ambulance to take the patient to the nearest hospital. If patients refuse transport by ambulance, patients will have been contributorily negligent or will have assumed the risk so that providers are likely to avoid liability.
Now is the time for providers to re-educate themselves about the possibility of liability for abandonment, and to take positive steps to prevent this type of legal liability.
©2020 Elizabeth E. Hogue, Esq. All rights reserved.