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]

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. 342 (Cal. App. 1981); Valdez v. Lyman-Roberts Hosp., Inc. 638 S.W. 2d 111 (Tex. 1982).

12. Czubinsky v. Doctors Hosp., 188 CAl. Rptr. 685 (1983).

Marketing Your Business Online

How can a business that is already successful in reaching their local market extend their marketing reach online? The good news is that the traditional offline marketing that has always worked so well will still work at least as effectively to promote your online presence. The other side of the coin is that to promote your business online, the old traditions need some updating to keep up with online marketing best practices.

Any business should already have a marketing plan and objectives from their offline initiatives, so let’s jump straight into the technology aspects of online marketing. I generally look at the following things first, because they can be done at very low or no initial cost, and also because subsequent specialist marketing won’t be as successful without these things in place. Of course there is a huge amount more to online marketing, the extent of which could easily be justified as a full-time university course. This is the pre-school notes, to help get your site to a starting point on a low budget if you can’t quite afford to be calling in the big guns to market your site for you professionally just yet.

1. Site optimization
This is always the place to start, because the effectiveness of everything which follows is often dependent on this being done up front. When I say this, I include great content and intuitive navigation as the basis for everything. Only once your site has been optimized for intelligent visitors should you tweak it for search engines, but never at the expense of the former.

Search engines look at things like keyword density and how specifically a page matches a specific search term. Of course this is extremely over simplistic, but nevertheless a worthwhile starting point. By identifying 10-20 key terms you would like search engines to pick up on, and creating specialised pages with relevant information which utilises those terms in the right way, you will start getting much better results once your site has been indexed.

You will find that it is best to use specialised keyword phrases, for example “precision-engineered bolts” is likely to get better placement than a generic term like “engineering parts”. You should also work to create a single page for every key phrase you want picked up on, and include the key phrase in the title, meta tags and use all the words in the body of the page at a high density relative to other words. You should also preferably include the key phrase in the page title, as well as the URL of the page, for example, “http://www.mysite.com/precision_engineered_bolts/”. Each page should use a different title, specifically based on the key phrase utilised in that page’s content.

Your site should really be developed using XHTML and CSS these days, table-based design has numerous technical problems associated with it, and it results in a lower keyword density than the current standards.

Ideally you should use a content management system which incorporates and facilitates all of the above quickly and effortlessly. This will allow you to manage your own content optimization, with a bit of trial-and-error.

2. Linking and indexing
The next step is to get search engines to start to notice and index your site. Google, for example, won’t even look at your site until it has been linked to by at least one other indexed site. Paid inclusion (paying the search engines to index your site on a priority schedule) can be appropriate at this phase if you need to urgently accelerate this process, however it is not always necessary.

Especially useful at this stage can be participating in forums serving your primary target market. This has the dual benefit of creating awareness of your business within communities you would like to reach, and at the same time can help create incoming links to your site, something that search engines pay particular attention to. Ensure that your site details are included as a link in the footer of your posts.
Never use a forum to spam members or submit unsolicited advertising posts — that just has the opposite effect of destroying your business’ credibility. Some forums have a separate advertising section in which it may be appropriate to professionally post information about your services and products. Always make sure that your presence represents a valuable contribution to the community. Stay on topic and be professional, helpful and constructive.

Search engines take many factors into consideration when ranking a site. New sites, for example, don’t initially fare well, however you will find they will allocate some credibility weighting to you the longer your site is up and running. The biggest factor though, external to the site itself, is the number of inbound (preferably non-reciprocal) links from other sites, and the context and wording of the referring link, as well as the ranking of the referring page, and referring site. The popularity of those sites plays a big role, as well as how high up in the site’s own hierarchy the link is. By way of example, a link from http://www.news.com.au counts for much more than a link from a very deeply embedded page like http://www.somesitesomewhere.com/subdirectory/theattic/someoldforgottenpage .

3. Implement online marketing partnerships with high-profile online businesses
This is where you can really benefit if implemented successfully. When I was previously running the e-commerce business unit for a large company, rather than pay high-traffic websites to advertise on their sites, which can be very much untargeted, we offered them a percentage of sales. In other words, we provided them with the banners to promote the service, and implemented simple tracking of where our visitors were coming from, and then paid a percentage of the total revenue to the referrer. This resulted in very low marketing costs to us, and the referring sites started placing more and more emphasis on their side to ensure that we got top placement whenever they were low on paid inventory.

Another effective medium-term strategy is to provide content of value to sites which serve your target market. They benefit from your topical content, you benefit from the exposure and links.

4. Dabble in paid keyword advertising
Only at this point should you actually be starting to pay for online advertising. These forms of advertising, however, allow you to specifically target certain people, which means you get a much better return on investment than simply advertising to everyone. This can take some trial and error to find what works best, but the amount you pay should be less than the amount of business you generate, and should normally include full measurement and reports on a reasonably regular basis, preferably online.

For this purpose, I often suggest starting with Google. They are by far the most popular search engine globally, they have a very good reputation, provide reporting online, and are probably the most likely to produce results initially. Yahoo and MSN also have excellent paid link systems, and they keep getting better all the time. The latest offerings from all three are now also starting to allow targeting to specific demographics, a trend that is likely to become the preferred way to target online audiences once the capabilities for this type of targeting matures.

5. Involve an internet marketing specialist
At this point, you should be starting to see some results, and be in a good position to ask some intelligent questions. Preferably deal only with a business that has a good reputation (ask for client contact details so you can find out how effective they are), and has preferably has been around for at least a few years. They should also provide very detailed reports (ask for examples of these up front), and be able to explain in detail how they go about promoting your site, on which sites they do so, the number of views and clickthroughs per site per day, and how effective each promotion was relative to the next. They should also meet with you at least once a month to review successes and failures and involve you in the decision-making process of where next to promote your business. At least monthly, you should be in a position to evaluate your cost per sale for various promotions, and to change your focus accordingly.

Especially be wary of businesses who claim unrealistically quick results, or base their business mainly only on search engine submission, or use deceptive practices to try and “trick” search engines into ranking you higher. These usually at best produce no value, and can in some cases lead to your site being removed or ranked very low by search engines.

Learning to Trade Forex – Don’t Base Your Trading Decisions Solely on Recommendations of Experts

Are you new to forex market and beginning to learn how to trade forex? Forex trading has now become a popular choice for retail investors to make quick money. Gone are the days when forex trading was restricted to large corporations alone. Thanks to global electronic network and online trading, many are pursuing forex trading as a part time occupation too.

Due to increased competition, forex brokers also are looking for ways and means to attract new traders and retain their existing ones. Forex trading offers excellent opportunities of making money. However trading of sort being speculative in nature is always risky. Particularly any new forex trader can be easily misled and misinformed. Internet scams which fool the public are also widely prevalent these days.

What precautions must you take as a newcomer?

1) Base your trading decisions on logic and analysis

The technological revolution which has made it easy for one and all to trade forex is also responsible for airing the views of Expert traders. It is very easy to be tempted and believe what is said in television and radio programs by financial experts. However what is missed by most viewers is that these experts merely give a broad picture and forecast. Trading merely because of an opinion expressed by an expert is pointless. Any skilled forex trader will always remember to base his trading decisions on logic and sound analysis. Hence it is very important that based on expert opinion you do your own research before entering into a transaction.

2) To trade forex learn the basics of technical and fundamental analysis

To understand market movements make use of technical analysis in forex trading. Tools such as trends, charts and indicators are used in performing technical analysis of the forex market. In case you are interested in knowing about the long term trend of a currency pair, fundamental analysis will be of help to you. Fundamental analysis entails analyzing the economic conditions of the countries whose currency pair you are trading in. For example if you intend to trade US Dollars and Japanese Yen, fundamental analysis will involve analyzing the economic conditions of America with respect to Japan.

Starting A Business Online – How Do I Spot The Right One For Me?

Starting a business online can be an arduous and unrewarding task. For starters, there are so many options out there – how do I spot the right one for me? How can I develop a laser beam approach to help me recognise the business of my dreams? One way to answer to that question is to build a framework to work in. If you want to know what that looks like, read on!

Starting a business online begins with choosing the right model, so you need to figure out how to unscramble the desires lurking beneath the surface. The best way is to take time out at the beginning to ask yourself a series of focused questions that will become the framework for your business online.

It also helps you spot a blind alley when you see one. Expert marketing means it is so easy to be led along by every promise, it can be difficult to figure out if the business you are considering is truly what you want.

Skipping this step can also set you up for a lot of disappointment as well as wasted time and money. It might be harder to spot the online ‘opportunities’ that are not totally genuine, or not really workable to a newbie. So, make yourself a coffee, find a quiet area and ask yourself the following questions:

1) Do I want to deal with a physical product? Am I happy to be involved with handling and receiving goods? Do I want a product I can promote online, but also physically sell, or do I want to make products and sell them on the internet marketplace?

Answering these questions will help you identify whether the online business platform you require is for an established product or one you are making yourself. An example of this would be running a party plan business. You would be out and about in the community, meeting new people, selling a well known brand, but you would also be using Facebook and ebrochures to build a thriving business online. Or you could design and make your own products and set up shop using somewhere like Etsy to promote and sell your own goods.

2) Do I just want an electronic product or service? Do I want a business promoting somebody else’s internet product or do I prefer to use the skills I already possess?

Answering these questions will help you identify which specific type of electronic business you want. An example of this would be an affiliate using the Clickbank and Amazon marketplace to promote other people’s products to earn commission. Or it would be starting your own Virtual Assistant business to offer online typing or secretarial services for customers around the world.

3) Do I want to physically store and ship goods to other people, or have someone else do it for me?

Answering these questions will help you identify the businesses that will do all the work for you. An example of this would be starting a business with an online auction site like eBay, where you would find, log the details, sell and post the product yourself. Or you could start a business where someone else stores and ships the goods to the customer whilst you market and promote the product with a pre-designed website in a dropship business.

These are just a few questions to start your framework, but there are many others you could ask, such as do I have all the training I need, or will I require more? If the answer is yes, where is a good place to get the help I need?

Successful businesses online know how to utilize the internet for profit and increase their online skill base. So, for your next step you might like to check out how one internet centre trains both total newbies and seasoned pros to make money online. I hope you have found ‘starting a business online – how do I spot the right one for me?’ helpful.

Forex Markets – How Do These Work?

There is so much talk about NASDAQ and NYSE, but how many people are aware of another similar market, called Forex Markets? Forex Market has ten times the average daily turnover of many similar global equity markets. Also, foreign exchange markets have thirty the times of the daily volume of NASDAQ and NYSE. Markets are also the most liquid market in the world with one of the highest turnovers ever recorded, estimated at $2 trillion in one day.

Foreign exchange markets, also known as FX or the foreign exchange is actually a decentralized market, commonly known as an Interbank or interdealer market. One of the main duties of FX Markets is to trade. Foreign banks, currency dealers and different Forex investors use the facility as a type of trading post. They use it to exchange foreign currencies, from all over the world. Of course for this to work in the best way, it has no centralized location. This is because all business is conducted online.
For a long time the main people that used Forex Markets were the banks. Recently though, FX Markets acquired the ability to leverage large positions with not very much available capital. This means that it is now a more liquid market and more easily accessible to smaller companies that would like to get involved as well.

From New Zealand, to Australia, to Asia, the Middle East, Europe and America, Forex Markets is open twenty-four hours a day. All the major markets, including London, New York, and Tokyo are part of it. Of course the United Kingdom and the United States account for over fifty percent of the turnover. When the time of day comes for all the major markets to overlap, trading can get pretty heavy.

Besides the major markets there are also five main currencies that are a part of Foreign exchange Markets. These currencies include the United States Dollar, the Euro, the Yen, the Franc and the British Pound. Each of these is traded in what are called pairs. In this particular market they are also called crosses, in what is known in the Forex Markets as the ‘spot’ market. A lot of this market is determined by supply and demand of certain major currencies and how they affect the current world market and its situations.

For those who have the money and the know how to survive on the world market, this market could be their best option. Being able to really read the current market and the world situation is definitely a plus when it comes to this market. If you have the need or the want to trade on the world market and are comfortable with what you know about it, Forex Markets are definitely the way to go.