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Post-Acute Providers “Push Back” Against Inappropriate
Discharges
Elizabeth E. Hogue, Esq.
Office: 877-871-4062
Fax: 877-871-9739
E-Mail:
ElizabethHogue@ElizabethHogue.net
The Dailey Record, a newspaper
published in Baltimore, Maryland, reported on January 8, 2008, that the former
Medical Director at Deer’s Head Hospital Center, a chronic hospital on the
Eastern Shore of Maryland, has filed a lawsuit in federal court against the
Hospital and its “business director.” The crux of the lawsuit is that the
Hospital accepted discharged patients from the local acute care hospital who
were not appropriate for admission. When the Medical Director, Dr. Clark A.
Morres, continued to object, he was ultimately fired.
Specifically, Dr. Morres claims that
his medical judgment was overridden so that patients from nearby Peninsula
Regional Medical Center whose acute care insurance benefits had run out, but
whose conditions remained unstable, were admitted to the Hospital. Dr. Morres
further claimed that these admissions were detrimental to many patients.
Dr. Morres included an example of
inappropriate admission practices in his lawsuit. Patients whose laboratory and
diagnostic tests were incomplete were nonetheless admitted to Deer’s Head. In
one example, Dr. Morres says that a patient who needed platelet transfusions
that are not available at Deer’s Head was admitted anyway. The patient was
returned to Peninsula Regional Medical Center a few days later where the patient
died.
It is, of course, important to note
that this lawsuit was filed against Deer’s Head Hospital Center and its
“business director.” The acute care hospital from which patients were referred
to Deer’s Head, Peninsula Regional Medical Center, and the discharge
planners/case managers at Peninsula Regional are not defendants in the
lawsuit.
Nonetheless, there are important
lessons for case managers/discharge planners in this case. When case
managers/discharge planners develop and implement inappropriate discharge plans,
which is alleged in the lawsuit described above, they may be liable for
negligence.
In order to prove that discharge
planners negligently discharged patients, patients must prove all of the
following:
- Duty
- Breach
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Cause
-
Injury or damage
Patients will lose their lawsuits if
they fail to prove any one or more of the above.
Discharge planners/case managers owe
patients a duty of “reasonable care.” Practitioners can determine what others
are doing by examining applicable national, as opposed to local or regional,
standards of care.
Sources of national standards for
discharge planners include:
-
Conditions of Participation (COP’s) of the Medicare Program related to
discharge planning
-
Licensure and accreditation standards
-
Court decisions
-
Standards of professional associations, such as the Case Management
-
Society of America (CMSA) and other professional organizations
Discharge planners/case managers can
breach their duty to patients in two (2) ways: (1) An act, i.e. doing something
that they should not do; or (2) An omission, i.e. failure to do something they
should have done.
The best way to define causation is
in terms of “but for.” “But for” the act or omission of the provider, the
patient would not have been injured. Causation can also be defined in terms of
“foreseeability.” If it was foreseeable that the patient would be injured or
damaged by the breach of duty by the discharge planner/case manager, then there
is causation. If injury or damage was not foreseeable, there is no causation.
In other words, there must be a causal connection between acts and/or omissions
by the provider(s) and injury or damage to patients.
Patients must usually show that they
were physically injured by providers. Injuries that are emotional only
will not usually satisfy this requirement, unless the patient can show that the
conduct of case managers/discharge planners was extreme and outrageous.
With regard to negligent discharges,
case mangers may be liable for negligence because they owe a duty to patients,
according to Medicare COP’s and other standards of case management, to develop
and implement appropriate discharge plans for patients. Discharge planners/case
managers may breach this duty when they refer patients who still need acute care
to post-acute providers. If patients are injured as a result, they may be able
to prove that they were discharged negligently.
The pressure is enormous for
discharge planners/case managers to discharge patients from acute care hospitals
when their payor sources for acute care are exhausted. Discharge planners,
however, put their licenses on the line when they discharge patients to
post-acute providers who cannot render appropriate care because patients’
clinical condition requires acute care. The lawsuit described above may
indicate that post-acute providers may begin to “push back” against these types
of discharges.
(To obtain more information about
this topic in a book entitled Case Management: Legal Issues, send a check
for $30.00 that includes shipping and handling made out to Elizabeth E. Hogue,
Esq. to: Fulfillment, 107 Guilford Drive, Summerville, SC 29483.)
©Copyright, 2008. Elizabeth E.
Hogue, Esq. All rights reserved. No portion of this material may be reproduced
in any form without the advance written permission of the author.
Elizabeth |