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Not reporting neglect of adult patient lands home health agency in court

Several of my past blogs have covered the obligation of nurses to report child abuse and neglect to designated authorities. But not reporting neglect of an adult patient, even if it’s “self-neglect” is just as critical.

State statutes vary, but most include the nurse having a “good faith belief” or “reasonable suspicion” that sustained injuries are a result of abuse or neglect; the nurse has immunity from civil, criminal, and professional licensure actions if reported this way. “Good faith” is assumed unless the family or others allege otherwise; and the report is deemed confidential so the nurse’s identity is not made public.

In the following 2019 case against Healing Hands Home Health Care, the Kansas mandatory reporting statute was interpreted after the death of an adult patient with diabetes and “chronic, severe” paranoid schizophrenia, who was receiving twice-daily in-home nursing visits.

The patient’s schizophrenia resulted in “forgetfulness,” poor hygiene, “daily hallucinations and delusions,” and a potential for self-harm — despite being “alert and oriented.” Clozapine was prescribed for his schizophrenia, with side effects including an increased heart rate and a decreased ability to tolerate heat.

The patient’s psychiatrist ordered nursing visits twice daily and the patient’s care plan was reviewed every two months. The care plan included:

  • Daily evaluation of the patient’s cardiopulmonary status
  • Setting up the patient’s medications and reminding him to take them
  • Evaluating the patient’s blood sugar on Monday, Wednesday and Friday
  • Evaluating patient’s eating, hydration and restroom habits, as needed

Did not reporting neglect contribute to death?

From May until the end of June 2013, nurse’s notes indicated that the temperature in the patient’s apartment was very warm. The nurses attempted to intervene by instructing the patient to turn on his air conditioning, but to no avail. In addition, his personal hygiene habits deteriorated.

The patient’s blood pressure during June also increased from the previous 60-day period of 70-80 beats per minute to as high as 118 beats per minute on several occasions during the evening.

On June 26-27, 2013, the county in which the patient resided was under a heat advisory, with a high temperature of 101 degrees and 117 respectively. The patient died some time in the night between June 27 and June 28, 2013. His family found him. The cause of death was listed as “probable hyperthermia.”

The patient’s mother brought a wrongful death and survival action against Healing Hands, alleging that its negligence caused her son’s death. Healing Hands filed a motion for partial summary judgment, alleging that it legally had no duty to inform the patient’s mother about her son’s condition and that Kansas’ mandatory reporting statute did not require it or its employees to report his condition to law enforcement or state authorities.

The trial court granted the home care agency’s partial summary judgment, ruling that the mandatory reporting statute did not require the agency to report the patient’s condition. The jury also found that the agency “bore no fault for [the patient’s] death.” This ruling was based on many legal and other arguments proposed by the home care agency, including the fact the deceased patient’s air condition was not working during this time period.

The patient’s mother appealed that judgment.

Appellate court decision on reporting neglect

The appellate court reversed the trial court judgment and sent back (remanded) the case to the trial court for a new trial.

In evaluating the Kansas mandatory reporting act, the court reviewed the lower proceedings in detail. In doing so, the court highlighted the arguments of both parties. For the home healthcare agency, its position was the deceased patient was an independently living adult, had been able to protect his own interests prior to his death, was competent and, based on the mandatory reporting statute language, had no need for protective services prior to his death.

In contrast, the deceased patient’s mother argued the duty the agency had was to notify her of her son’s condition so she could intervene. Moreover, she argued the statute did not require an adult first be declared incompetent or appointed a guardian to be covered under the statute.

The court opined the statute’s purpose was “plainly apparent on its face”; that is, it was passed to “protect adult individuals 18 years of age or older, who are ‘unable to protect their own interest and who [are] harmed through action or inaction by either another individual or their own action or inaction.’”

The deceased patient, it continued, clearly fell under the statute’s protection. Despite his ability to care for himself for years before his death, during the time the agency cared for him he was not able to do so, and the agency breached its duty under the statute.

The court also stated the home health agency fueled a fire by arguing that if the home care nurses were not negligent, then the agency could not be found negligent. This argument is not consistent with the law of negligence — specifically, the corporate theory of liability.

Implications for your practice

Reporting neglect can often save a patient from suffering further or save a life. This is why nurses need to be crystal clear on the expectations. If you practice in Kansas, it’s worth your time to review this case worth and even get an opinion from a nurse attorney or attorney as to your obligations under the Kansas mandatory reporting act. For those of you who practice nursing in other states, here are some guidelines on reporting neglect or abuse:

  • Know what your state mandatory reporting act and/or your nurse practice act require when providing care to adults in any healthcare or home setting.
  • Assess the patient’s overall condition regularly.
  • Document your observations and discussions with the patient and others.
  • Notify your nursing supervisor, patient’s physician and others concerning any issues you identify about the patient’s well-being.
  • Consult with a nurse attorney or attorney if your employer is not supporting your concerns about reporting neglect or abuse under your state statute.
  • Remember your duty to report abuse and neglect of an adult is a personal obligation, and if it is not fulfilled, it can result in a professional licensure action by the board of nursing and criminal prosecution (usually a misdemeanor).

 

Take these courses to learn more about home health and case management:

One Size Doesn’t Fit All with Age-Specific Competencies
(1.5 contact hrs)
The Joint Commission requires that any staff member, student, or volunteer who provides care and treatment in an institution is competent to provide these services to a specific patient population. This course provides an overview of age-specific competency requirements expected of staff assigned to settings in which the patient’s age must be considered when planning and delivering nursing care.

Becoming a Home Health Nurse
(2.5 contact hrs)
The need for nurses skilled at providing care to patients in their homes is growing. This is a good time to consider a career in home health nursing. This course provides an overview of the type of care provided by home health nurses, their roles and responsibilities, and the challenges associated with home healthcare.

Beyond the Basics in Case Management
(6 contact hrs)
This course is designed to help the practicing case manager develop the knowledge to reach an expert level of practice. It offers insight into what is needed to become an expert-level, high-functioning case manager.

By | 2020-04-15T16:49:04-04:00 December 20th, 2019|Categories: Nursing news, Nursing specialties|1 Comment

About the Author:

Nancy J. Brent, MS, JD, RN
Our legal information columnist Nancy J. Brent, MS, JD, RN, received her Juris Doctor from Loyola University Chicago School of Law and concentrates her solo law practice in health law and legal representation, consultation and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues in nursing and healthcare delivery across the country and has published extensively in the area of law and nursing practice. She brings more than 30 years of experience to her role of legal information columnist. Her posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. Visit The American Association of Nurse Attorneys website to search its attorney referral database by state.

One Comment

  1. Avatar
    Matt W December 29, 2019 at 1:51 pm - Reply

    Where is the distinction than on violating HIPPA and nurses reporting neglect of “self care” versus telling the family? If the patient is not taking medication, checking his glucose levels, performing hygiene, regulating his ambient temperature or having a working A/C how can nurses notify family without violating patient privacy law?

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