Telehealth: Limiting the liability of abandonment
By Elizabeth E. Hogue, Esq.
Burtonsville, MD
[Editor’s note: This is the second of a two-part LegalEase column that addresses home health agency risk management concerns related to telehealth. Last month’s article examined liability related to negligence and offered tips on how home health agency managers can protect their agencies. This month’s column covers how agencies can protect themselves from charges of abandonment. (For more information about telehealth in home care, see Hospital Home Health, March 2002, p. 25.)]
Home care providers always have been very sensitive to the possibility of liability for abandonment of patients. Providers’ caution with regard to this issue certainly is justified and should be reflected in providers’ use of telehealth devices.
First, it is important to be sure that providers and vendors understand what abandonment is so that risks associated with telehealth can be appropriately addressed. Both providers and vendors, for example, may be operating under the misconception that whenever patients go without services, there is almost automatic liability for abandonment. On the contrary, in order for patients to prove abandonment, they would have to show that providers committed all of the following:
- unilaterally terminated the provider-patient relationship;
- unilaterally terminated the relationship without reasonable notice;
- unilaterally terminated the relationship when further attention is needed.
A key question in the application of this theory of liability in instances of equipment failure/ malfunction will be whether the failure/malfunction constitutes termination of relationships with patients. To the extent that agencies are precluded from providing services to patients by problems with equipment, it may be argued that the failure/ malfunction amounted to termination of the relationship.
An example of a situation in which agency personnel may be precluded from providing services in the event of problems with telehealth equipment may occur when agencies are monitoring the condition of patients in remote locations and cannot provide services in person to substitute for monitoring using telehealth equipment. Agencies, on the other hand, may attempt to defeat claims of abandonment under these circumstances on the basis that the relationship with the patient was not terminated, but only disrupted on a temporary basis. Temporary disruptions of services may occur even when telehealth devices are not used, such as in the event of natural disasters, for example.
Patients also may claim that reasonable notice was not given when devices fail unexpectedly. Injuries or damage to patients as a result of inability to provide services may support patients’ claims that further attention was needed. Like negligence, patients must show either physical injury or damage, or extreme and outrageous conduct on the part of providers. There are, however, practical strategies that agencies can use to manage risks of liability for abandonment in the event of equipment malfunctions and/or failure. These strategies include the following:
1. Teach skills to use in case of equipment failure.
Agencies must evaluate on admission whether patients can care for themselves in the event of equipment malfunction or failure. If patients have the capability to care for themselves, agencies must discuss in detail the steps that patients should take when equipment is not working properly. For example, if patients’ vital signs are being monitored regularly via telehealth, patients should be taught alternative ways to monitor them. They also should be taught how to report results to agency personnel and what constitutes abnormal results. Appropriate actions to take in the event of abnormal results also must be discussed in detail with patients. These discussions must be documented. Successful return demonstrations should also be documented when appropriate.
2. Train caregivers.
When patients cannot care for themselves in the event of problems with telehealth equipment, agencies should be certain that there is at least one primary caregiver, either paid or voluntary, who can assist patients. Primary caregivers should receive appropriate training about what to do under these circumstances. Training should be documented as described above.
3. Monitor patients’ abilities continuously.
Agency staff members should continuously monitor the ability of patients to participate in telehealth. Patients’ and/or primary caregivers’ ability to do so may change over time. Patients who were active, appropriate participants upon admission may lose the ability to benefit from telehealth services as their conditions progress or deteriorate. When patients’ ability to benefit has been compromised, agency personnel must take action to help ensure alternate sources or means of care.
4. Document actions in writing.
Agencies also may wish to confirm the obligations of patients/primary caregivers in the event of equipment malfunctions/failures in writing via language in admission agreements or letters documenting these responsibilities. Both patients and primary caregivers may be asked to sign the documents, confirming that they understand their responsibilities.
The need for enhanced use of telehealth in the home care industry is becoming increasingly clear. Unfortunately, the development of workable, reliable systems may lag behind the need in the industry. In addition, it may be difficult for home care managers who may not be computer experts to effectively evaluate and use systems or hold vendors accountable for problems.
Liability for agencies and vendors may result. Nonetheless, the use of telehealth equipment in the home care industry is becoming a necessity. Managers must be persistent in their use of available systems and practical strategies to limit risks to achieve ultimate goals.
[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: [email protected].]
This is the second of a two-part LegalEase column that addresses home health agency risk management concerns related to telehealth. Last months article examined liability related to negligence and offered tips on how home health agency managers can protect their agencies. This months column covers how agencies can protect themselves from charges of abandonment.
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