CA lawsuit could have wide effects
The lawsuit filed against Hollywood (CA) Presbyterian Medical Center could affect how hospitals nationwide discharge the homeless, say some legal observers.
Some impact already is being felt from the lawsuit and the numerous allegations of callous discharge of the homeless, says Linda Stimmel, JD, partner and co-founder of Stewart & Stimmel in Dallas. Stimmel cautions that risk managers should not overreact to the risk from discharging the homeless and says that in many cases, the provider is doing the very best job possible in trying to discharge sometimes uncooperative patients who have no good option after leaving the hospital. But at the same time, she says, providers must avoid scenes that look callous at best and may amount to abuse.
Dennis Diaz, JD, an attorney with the law firm of Davis Wright in Los Angeles, says the lawsuit came as a surprise because he was under the impression that the parties had been making progress in settlement discussions for quite some time. He says the case could lead to similar lawsuits across the country. "It's not unlikely that plaintiff's counsel and advocacy groups will want to try to advance their perspectives on public policy and make examples of other hospitals for the problems experienced by a swelling homeless population, many of whom who use hospital emergency rooms for help and shelter," he says.
Diaz says risk managers should develop hospital policies and procedures specifically for homeless patients: Identify them upon arrival at the hospital, provide proper treatment, and get social workers and discharge planners on board quickly to coordinate an appropriate discharge.
Hospitals have little or no control over problems that homeless people experience in our society, Diaz notes, yet they are unfairly expected to provide care that goes far beyond what hospitals are capable of doing. "The hospital here did the best it could for this particular patient and broke no laws in the treatment and discharge of this patient," he says. "What ultimately happened to the patient after the hospital treated and discharged the patient was unfortunate, but not of the hospital's doing. This is an example of no good deed going unpunished."
Review contractors, discharge procedures
The lawsuit should prompt risk managers to review the procedures of transportation contractors, suggests David Donnersberger, MD, JD, a practicing attorney with Winger and Associates in Chicago and a clinical instructor at the Northwestern Uni-versity Feinberg School of Medicine in Chicago.
"From a risk management perspective going forward, hospitals should review quality control with their transportation carriers and provide education and standards for drivers," he says. "If there is evidence of a pattern of misbehavior by a driver or a carrier, contracts should be severed."
Secondly, Donnersberger says, no hospital should discharge any patient who does not provide the exact address of their destination. This is especially true if the hospital is providing the transportation to that destination upon discharge, he says.
As for the situation that led to the current lawsuit, Donnersberger says an ounce of prevention would have helped. A social worker, nurse, doctor, resident, chaplain, medical student, or discharge planner could easily have called nearby shelters or community agencies to arrange adequate supervision for the patient, he says. "This lesson should have been learned when the first shelter wasn't equipped for this patient's needs, and he was sent back to the ER for eight additional hours," he says. "Some level of discharge planning occurs with every discharge to a nursing home or transfer to another facility, and it should have occurred for this homeless patient as well."
Watch for EMTALA risks
Henry Fader, JD, a partner with the law firm Pepper Hamilton in Philadelphia, points out that providers also risk violating the Emergency Medical Treatment and Labor Act (EMTALA) when discharging the homeless. Fader says the actions of Hollywood Presbyterian may have violated EMTALA.
"EMTALA requires that all patients who present themselves to an emergency room be evaluated and treated, and this is especially true for mental health patients, who should receive a separate mental health evaluation if they show signs of mental instability," he says. "Additionally, Medicare and most Medicaid programs feature a required commitment by providers under conditions of participation. The conditions of participation require providers to treat patients appropriately under a patient bill of rights."
Fader advises that risk managers take these steps to minimize the risk in treating and discharging homeless patients:
- Monitor compliance with EMTALA in the emergency department, of course, but monitor the psychiatry requirement especially closely.
- When possible, beef up staffing in the emergency department to reduce wait times.
- Provide training to personnel, including outside vendors, on the conditions of participation and patient rights.
- Review vendor selection policies and monitor outside vendors for compliance with hospital policies.
- Review charity care policies and how they are used in the emergency department.
- If the hospital is nonprofit, reconcile the actions taken with the mission statement of the hospital and provide appropriate training to personnel.
Sources
For more information on minimizing the risk from discharging the homeless, contact:
- Dennis Diaz, JD, Davis Wright Tremaine, Los Angeles. Phone: (213) 633-6876. E-mail: dennis [email protected].
- David Donnersberger, MD, JD, Winger and Associates, Chicago. Phone: (312) 494-0422. E-mail: [email protected].
- Henry C. Fader, JD, Pepper Hamilton, Philadelphia. Phone: (215) 981.4640. E-mail: [email protected].
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