LegalEase: Home care services and disaster planning

By Elizabeth E. Hogue, Esq.
Burtonsville, MD

The efforts of home care providers to make visits according to patients’ plans of treatment are legendary. Recent natural disasters and terrorist attacks have reminded providers that they must be prepared to face limits on their abilities to visit patients according to schedule. Agencies must organize their efforts during severe natural disasters and terrorist attacks to avoid legal liability. Specifically, home care staff must take appropriate action to avoid liability for both negligence and abandonment.

In order to prove liability for negligence, patients must first prove that agencies owed them a duty. Providers generally owe their patients a duty of reasonable care. What is reasonable depends upon what other providers nationwide would do under the same or similar circumstances.

Standards of care help define the duty that practitioners owe to their patients. Sources of standards of care include: physicians’ orders, agency policies and procedures, requirements of third-party payers, accreditation organizations, state licensure statutes, and standards of professional organizations.

Patients also must prove that providers breached their duty. Patients must show that providers either did something that they should not have done or failed to do something that they should have done. In short, providers must have engaged in an act or an omission that amounted to a failure to meet the applicable standard of care.

Causation is an important element of any suit for negligence. In other words, patients must be able to show that "but for" the agency’s act or omission, the patient would not have been injured.

Finally, and most importantly, patients who sue home care providers usually must be able to show physical injury or damage to win their suits.

Courts almost always insist upon evidence of physical injury or damage in order to avoid paying patients for alleged injuries that actually are fake or for circumstances that really amount to no more than irritation or inconvenience.

When natural disasters or terrorist attacks occur, managers may find themselves in situations in which they genuinely are unable to make visits as scheduled. They may have no choice but to violate applicable standards of care contained in patients’ plans of care in the form of physicians’ orders and third-party payer expectations, including Medicare.

Here are the steps that providers need to take in order to avoid this type of legal liability in the midst of natural disasters and terrorist attacks:

All providers should use visit ranges, as opposed to a specific number of required visits per week. Since Medicare has approved this type of physicians’ order, providers should take advantage of this opportunity to avoid violations of the standard of care as expressed in physicians’ orders. Disaster relief efforts often are remarkably quick and successful at clearing the way for home care providers. The flexibility that agencies gain through the use of a range-of-visit frequencies just may be enough to avoid violations of physicians’ orders.

Agencies must operate based upon an understanding that the key to avoidance of negligence is prevention of physical injury. As long as agencies prevent patients’ physical injuries, agencies will have no legal liability. This means that staff must triage their existing patient population to determine who are most likely to sustain physical injury if they are not visited. These are the patients who must be visited first or cared for in an alternative setting. Staff must be prepared to strictly adhere to their visit schedule based upon triage and not upon which patients or families scream the loudest and longest for care.

Staff must demonstrate that every possible human effort was made to provide needed care. Just as inclement weather may not be enough to warrant deviations from visit schedules from Medicare’s point of view, so the law requires providers to show that it was humanly impossible to render care.

This means that agencies cannot make assumptions about what is and is not possible. Staff cannot afford to assume that they cannot reach particular patients without actual unsuccessful attempts to visit the patient.

Documentation is essential, including when visits were attempted and what specific conditions prevented staff from reaching patients. When visits cannot be made, staff must also work hard to communicate with patients using alternate means, such as telephones, with the expectation that advice over the phone will assist to resolve any short-term needs that patients have.

Home care providers also may incur liability for abandonment of patients when they fail to visit according to schedule. Patients who want to hold home care providers liable based upon this legal theory must show that agencies unilaterally terminated the provider-patient relationship without reasonable notice when further attention was needed.

Key actions that agency staff may take to avoid liability for abandonment include:

Because natural disasters rarely strike without warning, providers should use the period of time between advance warnings and the actual disaster to triage their patients in an attempt to identify those who are more likely to require care during the disaster, in order to prevent physical injury. Agencies should work closely with institutional providers, including hospitals and long-term care facilities, to provide alternative care for such patients on a short-term basis.

Patients who decline alternative arrangements should be informed of the clinical risks associated with the possibility that they may go without care during an impending disaster.

Information given to patients should be documented carefully so agencies can demonstrate that patients assumed the risk of going without care during the disaster when they declined alternatives, despite their understanding of the possible consequences.

Since providers can defeat claims of abandonment by giving reasonable notice, they also should take advantage of advance warnings to provide written notice to all patients, regardless of clinical condition, that visit schedules will be interrupted. Patients who remain in the area after receiving reasonable notice also can be considered to have assumed the risk of missed visits.

As staff members make all reasonable attempts to visit patients, consistent with the other key actions, additional legal questions may arise. For example, is a staff member returning from a visit who happens across someone in need of help legally responsible if something happens to the patient? Many states have statutes that limit liability under emergencies.

Although these laws vary from state to state, most of them provide that licensed personnel who assist in emergencies are shielded from liability as long as they are not grossly negligent. These so-called "Good Samaritan statutes" may include transporting patients for needed care.

Home care providers generally are extremely committed to their patients, and are willing to exert tremendous effort to make sure that their patients receive needed care. Truly, "Neither rain, nor sleet, nor snow" prevent home health staff from taking good care of their patients. Nonetheless, agencies must prepare for those rare circumstances when staff’s extraordinary efforts cannot prevail over nature and other difficulties.

[A complete list of Elizabeth Hogue’s publications is available by contacting: Elizabeth E. Hogue, Esq., 15118 Liberty Grove, Burtonsville, MD 20866. Telephone: (301) 421-0143. Fax: (301) 421-1699. E-mail: ehogue5@comcast.net.]