Liability for negligent premature discharge

By: Elizabeth E. Hogue, Esq., Burtonsville, MD

Providers of home health services and other post-acute services provided in patients' homes frequently observe that patients are discharged from hospitals who are still in need of acute care. When providers arrive at patients' homes to consider initiating services, they find patients whose clinical needs cannot be met at home.

In these circumstances, discharge planners/case managers may have liability for negligent premature discharge of patients.

In Wickline v. California, for example, Mrs. Wickline had surgery for vascular disease followed by a number of complications. The MediCal or Medicaid program stopped payment for inpatient care. Mrs. Wickline's physician asked for further payment for eight days. MediCal agreed to pay for four additional days.

After four days, Mrs. Wickline's physician took no further action and Mrs. Wickline went home. She developed additional complications that resulted in the loss of her leg.

She sued the MediCal program claiming that if she would not have been discharged, she would not have been injured.

In order to prove that discharge planners negligently discharged patients prematurely, patients must prove all of the following:

  • Duty.
  • Breach.
  • Cause.
  • Injury or damage.

If patients fail to prove any one or more of the above, they will lose their lawsuits.

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 (CoPs) 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.

Discharge planners can breach their duty to patients in two 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 also can 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 usually will not satisfy this requirement.

There is one exception to this general rule. Courts require providers to pay patients, even when their injuries are emotional only, when providers engage in extreme and outrageous conduct.

Extreme and outrageous conduct is barbaric, shocking, cannot be tolerated in civilized society, and generally causes one to gasp. A very high standard to meet!

What constitutes extreme and outrageous conduct? Staff in a delivery room, for example, refused to perform an emergency Caesarean section on a woman who died precipitously during labor based upon their understanding that no one who was qualified to perform the surgery was present in the hospital.

They failed to respond to the repeated anguished pleas of her husband who begged the staff to save the life of his unborn infant.

Applying these requirements to negligent premature discharge, case mangers may be liable for negligence because they owe a duty to patients, according to Medicare CoPs and other standards of case management, to develop and implement an appropriate discharge plan for patients.

Discharge planners/case managers may breach this duty when they refer patients who still need acute care to home care providers.

If patients are injured as a result, they may be able to provide negligent premature discharge.

Some discharge planners/case managers still refer patients for home care services because "something is better than nothing" or because they think that every patient is appropriate for home health services.

The stakes are high for discharge planners/case managers who continue to discharge patients whose clinical needs cannot be at home. They may be found liable for negligence which may result in the loss of any professional licenses they hold.