Kenyon HomeCare ConsultingAbandonment Or Termination Of Homecare Services For Violence? - Kenyon HomeCare Consulting (206) 721-5091

Kenyon Connects

Abandonment Or Termination Of Homecare Services For Violence?

Today’s article, written by Elizabeth Hogue, a well-known health care attorney provides guidance about how to terminate services to patients in the face of violence or threatened violence against field staff members. Homecare field staff who provide services on behalf of private duty agencies, hospices, Medicare-certified home health agencies and home medical equipment (HME) companies are extremely vulnerable. Contributing to their vulnerability is the fact that they work alone on territory that may be unfamiliar and over which they have little control. Staff members certainly need as much protection as possible.

In Part 1 of this series, exposure to workplace violence was reviewed from the point of view of requirements of the Occupational Safety and Health Administration (OSHA). Also, the previous article addressed the potential liability of all types of home care providers for negligence when employees are injured as a result of violence. This article provides guidance about how to terminate services to patients in the face of violence or threatened violence. Providers are at risk for legal liability of abandonment when they terminate services to patients. Violence or threatened violence, however, likely warrants immediate termination of services. Providers show concern understandably about the possibility of legal liability associated with the termination of beneficial services.Abandonment

Liability for Abandonment

Specifically, providers remain concerned about the possibility of liability for abandonment of patients. Practitioners often speak of abandonment as though it is equivalent to termination of services. On the contrary, patients who want to hold case managers liable for abandonment must show that:

  1. Providers unilaterally terminate the provider/patient relationship
  2. Without reasonable notice
  3. 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. In instances of violence or threatened violence, this requirement of proof of abandonment may be met when providers decide unilaterally to discontinue services.

Requirements of Abandonment

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 should view what is reasonable on a continuum. That is, on one extreme end of the spectrum are patients who are violent or threaten violence. Practitioners are likely justified in terminating services immediately to patients who fall into this category. Providers are also likely justified in ending services to patients whose family members threaten violence or are actually violent.

Statutes and/or regulations in some states govern how much notice must be given to patients prior to termination of services. Some of these statutes address the issues of violence or threatened violence and permit providers to terminate services to patients immediately under these circumstances. Providers must carefully review requirements for the state in which the patient resides before terminating services.

After staff members agree that immediate termination of services due to violence or threatened violence is reasonable, patients and attending physicians should receive notice verbally and in writing. Written notices should be hand-delivered to patients’ homes. Although it is desirable, it is unnecessary to obtain a signature verifying receipt. Written notices to physicians may be faxed or hand-delivered.

After giving notice, providers must terminate care as planned. Practitioners are sometimes tempted to continue services in the face of pleas from patients, physicians, and/or family members. Providers must bear in mind, however, that one of their most important responsibilities is to protect staff members from harm.

How Providers Defeat Claims of Abandonment

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 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 rare instances, appropriate action may include sending an ambulance to take a patient to the nearest hospital. Even if patients refuse transport by ambulance, providers may avoid liability because patients likely assumed the risk or were contributorily negligent when they refused transport via ambulance.

In Conclusion

It does not appear that the world is becoming a kinder, gentler place for anyone. Field staff members must face their vulnerability every day. Those who are behind the firing line must provide support by shielding them from threatened or actual violence whenever possible.

If you need to develop or implement a comprehensive program to prevent violence in the workplace, Kenyon HomeCare Consulting is here to help! Schedule an appointment to speak with one of our experts or give us a call at 206-721-5091.

For more information about this or other legal issues in homecare, contact Elizabeth as outlined below.

Elizabeth E. Hogue, Esq.

Office: (877) 871-4062

Twitter: @HogueHomecare

ElizabethHogue@ElizabethHogue.net

©2017 Elizabeth E. Hogue, Esq. All rights reserved.

 

Category: Finances, Leadership, News

Leave a Reply

Your email address will not be published. Required fields are marked *