Category Archives: Insurance

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]

Ten Tips for Comparing Health Care Policies

Australians already know that health coverage can provide security for individuals and families when a medical need arises. Many, however, do not know how to find the best value when comparing health insurance policies.

Below are 10 tips everyone should read before shopping for private health coverage.

1. Choose coverage that concentrates on your specific health needs, or potential health needs.

The first thing you should do before comparing your health plan options is determine which policy features best fit your needs. A 30-year-old accountant, for instance, is going to need very different coverage than a 55year-old pro golfer, or a 75-year-old retired veterinarian. By understanding the health needs that most often correspond to people in your age and activity level group – your life stage – you can save money by purchasing only the coverage you need and avoid unnecessary services that aren’t relevant. For instance, a young family with two small children isn’t going to need coverage for joint replacement or cataract surgery. A 60-year-old school teacher isn’t going to need pregnancy and birth control-related services.

Whether it’s high level comprehensive care you’re after, or the least expensive option to exempt you from the Medical Levy Surcharge while providing basic care coverage, always make sure you’re comparing health insurance policies with only those services that make sense for you and your family.

2. Consider options such as Excess or Co-payment to reduce your premium costs.

When you agree to pay for a specified out-of-pocket amount in the event you are hospitalized, you sign an Excess or Co-payment option that will reduce your health insurance premium.

If you choose the Excess option, you agree to pay a predetermined, specific amount when you go to hospital, no matter how long your stay lasts. With a Co-payment option, you agree to pay a daily sum up to a pre-agreed amount. For example, if Joanne has an Excess of $250 on her medical coverage policy and is admitted to hospital, regardless of how long her stay turns out to be, she will pay $250 of the final bill. If Andrew has signed a $75×4 Co-payment with his provider, he will pay $75 per day for just the first the first four days of his hospitalization.

For younger individuals who are healthy and fit with no reason to expect to land in hospital any time soon, either of these options are great ways to reduce the monthly cost of your medical insurance premiums.
Keep in mind that different private insurers have their own rules when it comes to Excess and Co-payments, including how many payments you will need to make annually on either option. It is important to read the policy thoroughly and ask questions in advance in order to have a clear understanding of what you are paying for, and what you can expect coverage-wise in the event that you are hospitalized. Also, make sure you choose an Excess option greater than $500 if you’re purchasing an individual policy, or $1,000 for family coverage, in order to be exempted from the Medicare Levy Surcharge.

3. Pay your health insurance premium in advance before the cost increases.

Each year insurance providers increase their premiums by approximately five percent sometime around the first of April, a practice approved by the Minister of Health. By instituting these annual increases, your health insurance provider retains the ability to fulfill their obligations to policyholders despite increasing medical costs.

Most private medical policy providers allow policy holders to pay for one year’s premium in advance, which locks them into the previous year’s rate for an additional 12 months – a great way to save money. In order to take advantage of the savings offered, most insurers require payment in full be made within the first quarter of the year, between January and March.

4. Lock in to low cost health insurance at an early age.

The most obvious advantage any Australian can take when it comes to saving money on your insurance premiums is to buy in early to the least expensive rate available. And by early, we mean before age 31. Everyone who is eligible for Medicare will receive at least a 30 percent rebate from the government on the price of their health care premium, no matter what age you are. However, by purchasing hospital coverage before the July first following your 31st birthday, you can be ensured the lowest premium rate available.

After age 31, your health insurance rate is subjected to a two percent penalty rate increase for every year after age 30 that you did not have health insurance. Therefore, if you wait to purchase private health coverage until you’re age 35, you will pay 10 percent more annually than you would have if you had purchased it at age 30.

There are exemptions for some people who were overseas when they turned 30, or for new immigrants, and certain others under special exception status. However, if you purchased private insurance after age 30 and are paying an age loading penalty on your health coverage, you will be relieved of the excess penalty after 10 years of continual coverage.

The earlier in life that you lock in to a private health plan, the more money you will save both immediately and over your lifetime.

5. Choose a health care provider who already works with your health fund.

Determine which hospital you prefer if and when the need for treatment does arise, and seek out those health insurance providers that have an agreement with your hospital of choice before making a decision on your health insurance purchase.

It’s a good idea to also find out if your insurer has a list of “preferred providers,” which would include those physicians and practitioners who also have made arrangements with the health funds regarding their charges for services. Request this information from every provider when comparing health insurance policies. This way you can be sure you’ll receive the full gamut of benefits available at the lowest possible cost. These preferred providers often have “no gap” cover – special rates that reduce or eliminate out-of-pocket expenses to policyholders.

6. Double check your health insurance policy before you schedule any treatment or procedures to make sure you have coverage.

Any time you are headed to a private hospital for treatment, first check to see if the hospital and your health insurance provider have an agreement to be absolutely sure you have adequate coverage. At the same time, check with your insurance provider, physician and the hospital to see if there is a Gap between their fees and the government’s Medicare Benefits. This is extremely important because if your physician charges more than Medicare covers and you do not have a “no Gap” plan set up, you could find yourself responsible for a considerable bill. Simply contact your doctor and your insurance company to double check on these items, and avoid being saddled with an out-of-pocket expense your weren’t expecting.

7. File your expense claims promptly.

When you have a health insurance membership card, you can file a claim against your benefits at the time of treatment with no additional paperwork or filing to worry about, at least in most cases. Sometimes, you may still need to file a claim with your insurance provider. When that happens, make sure to file your claim promptly. The typical cut off for insurers to pay health care claims is two years. You can file your health insurance claim directly with your provider or at your area Medicare office, which has a reciprocal agreement in place with most insurance providers.

8. Whenever you travel overseas, suspend your health coverage.

Anytime you travel overseas for more than a few weeks but less than 24 months, certain medical insurance providers allow policyholders to suspend their memberships for the time they’re out of the country, freeing the policyholders from paying premiums during that time period. While your insurance policy is suspended, your Lifetime Health Cover status remains intact, so you do not have to worry about age loading added when you return home. Contact your health insurance provider to make sure of their policy and rules regarding waiting periods and re-activation.

Remember too that Australia has reciprocal arrangements in certain countries, including New Zealand, Finland, Ireland, Italy, Malta, the Netherlands, Sweden and the U.K.
9. Review your policy benefits annually.

Lifestyles change, individuals get married, have children, age – children grow up and move out on their own, couples separate. A lot can happen in the span of 12 months, which is why the Private Health Insurance Ombudsman recommends that everyone review their policy benefits once every year to make sure your coverage still fits your needs.

Regardless of your life changes, your Lifetime Health Cover status remains protected, and waiting periods for benefits that equal your current coverage are waived in compliance with the Private Health Insurance Act of 2007. This means you will be able to file claims related to features you had before you made any changes without interruption in benefits.

10. Compare policies to get the best price and the coverage you need.

To make sure that you are getting the best possible price on your health insurance premium, you must compare policies from different insurers, Make sure you are comparing policies that reflect the treatment plan and coverage you need, without filler services that you won’t need. The more you know about private health coverage and government sponsored Medicare, the more likely you will find the best value for your money when it comes time to purchasing or renewing your health coverage.