Elements of the Cause of Action Presso Graphy 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 appropriately 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 the 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. [2]
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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 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 responsible for the home health patient’s care while the home health provider is delivering it 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. It should be carefully documented, Net Maddy.
