Are You at Risk for Patient Abandonment?

by Sandra C. Maliszewski

Patient abandonment has become a hot subject, especially during these times when adequacy of nurse staffing has become an area of concern due to the nursing shortage now being faced.  The New York State Education Department recently mailed to all licensed nurses, healthcare facilities and others a guidance memo (Memo) regarding abandonment in nursing.[i] The Memo attempts to clarify the Department’s position concerning what actions could be considered abandonment and lead to charges of unprofessional conduct against a nurse’s license.  It also clarifies the responsibility that health care facilities must meet.  Let us not forget that they are responsible for providing adequate staffing for the patients they accept.  That is, “managerial or supervisory personnel should make adequate provisions for competent staffing to ensure necessary patient care in routine situations.”[ii]  In addition, healthcare facilities are also responsible for respecting the legal and ethical obligations that the employed healthcare providers, including nurses, must follow in order to protect the safety of patients.
As a healthcare professional, nurses are responsible and accountable for the nursing care they provide. This includes numerous legal and professional obligations.  Abandonment, as defined under the Rules of the Board of Regents, section 29.2(a)(1), constitutes professional misconduct for any healthcare provider in New York State, including licensed nurses.  It is defined as abandoning or neglecting a patient or client (1) under and in need of immediate professional care, (2) without making reasonable arrangement for the continuation of care or abandoning a professional employment by a group practice, hospital, clinic or other health care facility, (3) without reasonably notice and under circumstances which seriously impair the delivery of professional care to patients or clients.” In order to abandon a patient, certain elements must be satisfied.  First, there must be an underlying
Provider-patient relationship. Secondly, abandonment also requires that the healthcare provider has not made reasonable arrangements for continuation of that patient’s care. Lastly, the provider did not provide reasonable notice to the employer.  Implicit in providing nursing care is the establishment of the nurse-patient relationship.  Once the nurse accepts responsibility for a patient, he/she has established that relationship.  The nurse ‘accepts’ the patient when receiving either a written or oral report of the patient needs.

True or False?
How a nurse applies these principles is fact-specific.  For example:
1. You arrive on the unit 15 minutes before report time only to find out that the other RN scheduled to work that night has called in sick.  The evening supervisor tells you that there is no other nurse available to float onto the unit.  Instead you are sent a second nurse’s aide.  The patient census is 18, with 3 new post-op patients.  You tell the evening supervisor, before accepting report, that you cannot accept management of the unit due to poor staffing.  You are informed that unless you accept the assignment with the proposed staffing, you will be terminated for ‘patient abandonment.’ Is this true?

What’s a Nurse To Do?
Based on the facts presented above, the nurse has not yet officially received a written or oral report from the prior shift. The nurse has two options.  She can inform management that she will not accept the patient report and then face possible repercussions from the facility.  Or, the nurse can accept the oral report from the prior shift.  Under these circumstances, the nurse must put her/his objections down in writing to the evening supervisor. It is important to document specifically concerning inadequacy of staffing in relationship with patient census and acuity.  If this has happened again, that should also be noted.  Most importantly, the nurse should state that in the future, she/he will not accept responsibility for patient care under similar circumstances. This protects the nurse from threats of patient abandonment in case the same thing happens again.

What if?
2.  You are working the evening shift as the charge nurse on a heavy orthopedic unit with two other RNs, an LPN and a nurse’s aide when Mary, one of the two nurses, is sent home sick. The patient census is 30, with 6 fresh post-ops and 3 pre-op patients.  You ask the evening supervisor for help.  She refuses stating that you still have two nurses- the RN and LPN.  You inform her that staffing is insufficient to meet the needs of the patients and that you will not accept responsibility for caring for as many as 15 patients.  The supervisor informs you that failure to accept Mary’s patients constitutes patient abandonment and that you could be terminated for your refusal.

The Truth Is…
In this scenario, you have already accepted responsibility for the patients as the charge nurse.  If you refuse to care for any of the patients at this point, you could be found guilty of abandoning the patients (professional misconduct) and be terminated by the employer.  Here, it is imperative that you put your objections in writing. Include the patient census, staffing levels, and how nursing care had to be prioritized because of the shortage.  If appropriate, you may also want to contact the specific physician regarding their patient in the case that physician’s orders are implicated.  Again, by placing your objections in writing, you have provided the facility with notice about your future acceptance (of lack there of) if faced with a similar situation.

3.  You are a home care nurse and have been caring for Mrs. B. for the past three months.  Mrs. B. has diabetes and does not have a significant other living with her.  You have been visiting Mrs. B. to perform dressing changes to her lower right leg for a chronic leg ulcer.  Mrs. B’s insurance carrier has informed you that they will no longer approve three-times weekly dressing changes because the wound has healed sufficiently.  The insurance carrier feels that the patient can handle her own dressing changes and will only approve once weekly visits for wound assessment.  You inform Mrs. B. of the carrier’s decision. Although the patient is physically able to perform her own dressing changes, she has simply refused to learn how to change the dressing.  She accuses you of abandonment if you do not continue to perform the necessary dressing changes. You are appealing the carrier’s decision and continues to see her three-times weekly. If you saw the patient only once weekly, would that constitute patient abandonment?

First, is the nurse employed by an agency or self-employed?  The agency could continue to send you once a week or three times a week.  What do the physician orders say?  Remember, you work for the agency.  If you are self-employed, you would inform Mrs. B’s physician regarding the need for three versus once weekly assessments.  Based on the doctor’s orders, you would provide nursing care accordingly.  This would not constitute abandonment.

A separate but intertwined issue is the appropriateness of the nurse discussing these issues with the patient.  As an employee of an agency, it would be inappropriate to have this discussion with the patient.  As a self-employed nurse, you can make the determination of whether you will provide ‘free’ nursing care while this issue is straightened out.  The issue to present the patient is that her nursing needs are lessening because she is improving and not because of lack of reimbursement.  If the nurse’s assessment is that the patient is physically capable of learning and performing the dressing change, why wasn’t it part of the nursing plan to teach the patient?  If the patient is not able to care for herself, then it is important to discuss this with Mrs. B’s physician.  She may need to go to an extended care facility or have other arrangements made.

In the home care setting, it is important to have good lines of communication with the patient’s physician and seek their guidance.  All decisions to terminate service should only be made after discussions with the physician, with careful consideration of alternative sources of care.  It is equally important to carefully develop comprehensive policies and procedures governing these types of situations, including input for the agency’s medical director.  Lastly, give the patient and their caregivers the required notice, which may be delineated in the relevant governmental agency’s regulations or in the agency’s policies and procedures.  Usually, notice must be provided within a ‘reasonable’ timeframe.  In the home care industry, that can be four or five days.  To avoid any problems, the provider should provide the longer of any conflicting notice periods, and the notice should be delivered according to any applicable regulations or your written policies and procedures. Be sure to include in the notice the relevant names, addresses and telephone numbers.  Copies of all notices should be sent via certified mail, return receipt requested not only to the patient, but also the physician.

As you can see from the scenarios above, whether abandonment occurs is fact specific.  Once the nurse has established a relationship with the patient, the decision to terminate services must be done properly otherwise the nurse could face potential professional disciplinary action.  In the worst-case scenarios, it might even lead to criminal actions against the nurse and facility. In the home care setting, if the provider has an established protocol based upon federal and state regulatory requirements and compliance with its internal policies and procedures, and those procedures are followed with compassion based on the patient’s medical requirements and a common sense application, the harsh consequences of termination of services can be avoided.

Sandra Maliszewski, RN, FNP, CNM, Esq. is an attorney at Ruskin Moscou Faltischek, P.C. in Uniondale whose practice focuses on Health Law and White Collar Criminal Defense.  She is also a member of the HIPAA Compliance Group and can be reached at 516-663-6538 or