Critical Path Network
Create an appropriate discharge plan to avoid lawsuit
Case managers may have liability for negligent, premature discharges
Case managers are under pressure to discharge patients as quickly as possible from the acute care hospital, but they may have liability for negligent, premature discharge, according to Elizabeth Hogue, Esq., a Washington-DC based attorney specializing in health care issues.
"Providers of home health services and other post-acute services provided in patients' homes frequently observe that patients are discharged from the hospital when they are still in need of acute care and their clinical needs cannot be met at home. In these circumstances, the person who created the discharge plan may have liability for negligent premature discharge of patients," she says.
When hospital-based case managers conduct an assessment of a patient, they should look beyond medical necessity and continued stay issues and determine if the patient is clinically and functionally appropriate for the next level of care, adds Jackie Birmingham, RN, MS, CMAC, vice president for Curaspan Health Group, a Newton, MA, health care technology and services firm.
"Case managers need to assess their patients for continuing care needs and make sure they are referred to the right level of care at the right time," she adds.
Don't confuse utilization review and discharge planning, Birmingham notes.
"The difference between doing utilization review and discharge planning is pretty clear. Utilization review determines if the patient meets the criteria for discharge, and discharge planning determines the next appropriate level of care," she says.
Some discharge planners/case managers still refer patients for home care services because "something is better than nothing" or they think that every patient is appropriate for home health services, Hogue says.
"The stakes are high for discharge planners/ case managers who continue to discharge patients whose clinical needs cannot be met at home. They may be found liable for negligence, which can result in the loss of any professional licenses they hold," she explains.
"Case managers become a part of suits filed against hospitals, health plans, and doctors when they violate applicable standards of care, including those that are specific to case managers. Our society is not getting any less litigious, and there is no doubt in my mind that case managers are likely to be included in malpractice suits," Hogue says.
National standards of care that apply to case managers and discharge planners include Medicare Conditions of Participation related to discharge planning, licensure and accreditation standards for case managers and social workers, and standards of practice from professional organization such as the Case Management Society of America and court decisions, Hogue says.
Discharge planners and case managers have a duty to provide their patients with "reasonable care, which includes developing an appropriate discharge plan," she says.
When patients file lawsuits charging that they were negligently discharged from the hospital prematurely, they must prove that the clinician had a duty to the patient to ensure an appropriate discharge and breached it by discharging him or her to home. The result is an injury or damage caused by the patient being at home while he or she still needed acute care, Hogue says.
Examples of breach of duty include failure to properly evaluate and assess the patient, failure to develop an appropriate discharge plan, and implementing an appropriate plan of care, she adds.
There must be a causal connection between the acts and/or omissions by the providers and the injury, Hogue says. Patients must usually show that they were physically injured. Emotional injuries don't satisfy the requirement.
"Case managers may be liable for negligence because they owe a duty to the patients to develop and implement an appropriate plan of care for patients according to Medicare Conditions of Participation and other standards of case management. They may breach this duty when they refer patients who still need acute care to home care providers," she points out.
If patients are injured as a result of being discharged when they still need acute care, they may be able to prove negligent premature discharge, she adds.
"It is up to the physician to issue the orders to discharge patients from acute care but the case manager's assessment should make recommendations for the right level of care," Birmingham says.
"Hospitals need to be able to manage their 'revenue cycle,' but they also have a duty to make sure the patients get the care they need. If patients' medical, clinical, or functional needs cannot be met at home, they may need to stay in the acute care hospital or be discharged to a skilled nursing facility or a long-term care facility," Birmingham says.
When physicians are ready to discharge patients to home, case managers must implement appropriate discharge plans that may call for providing a complex level of care at home, Hogue says.
These may include a full range of home care services, including skilled care, private duty care by staff who act as primary caregivers, and/or home medical equipment supplies, she adds.
If an appropriate plan cannot be put into place for home care, discharge planners must work with physicians to delay discharge, Hogue says.
"Patients cannot be discharged with inappropriate discharge plans, according to applicable standards of care," she says.
Determining that it's safe to send patients home is not good enough. Case managers must be sure that the patient's ongoing needs can be met at home and develop a discharge plan for an appropriate level of care, Birmingham says.
If home care is not possible, the case manager can assess the patient for another, appropriate level of care, she adds.
"The distinction between 'acute level of care' and 'post-acute level of care' is narrowing, and case managers are in a pivotal position to determine which level will be able to provide what the patient needs," she says.
Home care always is the first choice, but it is a level of care that requires accurate assessment of the patient and family to determine if it is a safe level of care at a specific time, Birmingham adds.
"Before creating a discharge plan that sends the patient home with home health services, case managers need to determine if the patient can be successful with intermittent care and make sure that the patient understands what kind of home health services he or she will be receiving and how frequently," Birmingham says.
Sometimes patients and their family members have the assumption that the home health nurse will be in the home full time, rather than visiting once a day or three times a week, she adds.
Before you make referrals for home health services, make sure that the patients thoroughly understand that the care they receive in the home will not be like the care they get in the hospital and that they will need assistance from a family member or other responsible person.
"Hospital readmissions from home health are higher than from other levels of care. Often the patient doesn't understand the benefit or the hospital case manager didn't assess the patient's ability to manage at home appropriately," Birmingham says.
Case managers also should make sure that patients have clear discharge instructions and that they understand them, she adds.
"Patients need to understand how to care for themselves at home, what signs and symptoms to look for that could indicate a problem, and who to call when they have questions or concerns," Birmingham says.
If the hospital makes a referral for home health, the patient should have a number to call in case the home health practitioner doesn't arrive in a timely manner and if he or she has questions, she adds.
"Wherever the patient is discharged to, the patient must be fully aware of what to expect at that level of care, why he or she is going to that level of care, and what to expect after that," Birmingham says.
(For more information, contact Jackie Birmingham, RN, MS, CMAC, Vice President, Curaspan Health Group, e-mail: [email protected]; and Elizabeth Hogue, Esq., e-mail: [email protected].)
Case managers are under pressure to discharge patients as quickly as possible from the acute care hospital, but they may have liability for negligent, premature discharge, according to Elizabeth Hogue, Esq., a Washington-DC based attorney specializing in health care issues.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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