Home Care Standards Present Unique Medical And Legal Challenge It was nearly 25 years ago that the American Medical Association {AMA} finally decided that jet travel was medically safe. | men- tion this curious fact only to under- score the amazing pace at which the process of technological inno- vation. challenges the advance- ment of human health care. Nearly 15 years ago, severe birth defects such as when the baby’s stomach organs are outside the body, had a 85% mortality rate. Today that rate is down to 5%. Ten years ago, Spina bifida had a mortality rate of 90% — today the survival rate is 90%. People with complex and mul- tiple handicaps have the right to the best quality of life possible. This can be achieved only by pro- viding them with medical, physical, social and psychological care suf- ficient to heip them realize their maximum potential for health, education and self-fulfillment. To realize these goals, economic bar- riers to health care are being re- moved by the federal government. As an example, the 1976 Social Security Amendment provides Social security insurance for dis- abled children. Many of these pro- grams identify and provide ser- vices to crippled children because their health care costs are truly catastrophic. Since modern medical technol- ogy has increased thesurvival rate of individuals with multiple and complex health care needs, the 1980s bring a real need todevelop alternate methods of providing this health care. Institutional inten- sive care units, where the bulk of by Larry Shinnick these patients now receive their care, have provided an extremely high level of care, but have also been found to have two major drawbacks. First, for optimum growth and development, the individual needs to be in the loving environment of his home as a member of the fam- ily. Secondly, institutional care is an expensive method of health care. It has been shown recently that the same services can be pro- vided in the home with approxi- mately a 60% reduction in costs. As we all know, federal DRG {Diagnosis Related Group) regula- tions recently became’ effective Oct. 1, 1983. DRGs restrict the limits of reimbursement a hospital is entitled to receive for the care and services rendered to Medicare eligible patients. It has been pre- dicted strongly and repeatedly that the number of and sophistication of services rendered in the home en- vironment will be dramatically in- creased as a direct result of DRGs and by the passage of Medicaid waivers for certain services. It seems clear that these two items are indicative of an increased awareness that high-tech services can be efficiently and safely ren- dered in the home environment. It is reasonable to predict that there will ultimately be a greater em- phasis by both state and federal governments as well as other re- imbursement mechanisms to en- courage such servicesinthe home. Thus, home care professionals will have to become cognizant of and willing to assume any and all in- creased and transferred liability Larry Shinnick is general counsel and Secretary at Upjohn Health Care Services. risk associated with the rendition of services in the home. oe Until recently, ventilator-depen- dent children and adults havebeen cared for on an in-patient, in-hos- pital basis. Now sufficient tech- nology exists to permit a signif- icant number of ventilator patients to be cared for in their own home. By analogy then, it’s possible to examine the various types of risks which health care personnel face in a hospital setting, and forecast the types of risks the home health care personnel should be willing and able to accept in the homecare Setting. It’s long been established that physicians, nurses and other allied health care personnel must adhere to certain standards of care or be held accountable if the pa- tient suffers injury or harm as a direct result of the providers falling below that standard of care. Gen- erally speaking, that standard is known as that of a reasonable man —— a standard by which a person is judged in accordance with what a reasonable person with similar training would have done under the same circumstances. By such a standard, the nurse, medical technician, or physician can be evaluated in his or her community by the standards that exist in that community. But this standard falls short of providing specific answers because it must, by its nature, be applied on a case-by-case basis. Establishing standards for the homecare of ventiiator-dependent patients presentsa unique medical and legal challenge. Consequent- ly, home health care professionals should possess the requisite train- ing and education enabling themto properly deal specifically in the home environment. Monitoring, supervision, provision of medica- tion, observation and notation of important warning signs, patient charting, patient assistance, and timely summoning of physician assistance are all responsibilities that are present in the home set- ting. In theory, the duties and re- sponsibilities of treating ventila- tor-dependent patients in the home would be extremely similar to treating ventilator-dependent patients in a hospital setting. The legal liabilities associated there- with would also be quite similar. There are legal precedents that would adequately demonstrate that physicians and nurses and technicians have been success- fully sued for violating applicable standards of care. By way of illus- tration only, heaith care profes- sionals have been found liable recently in the following situa- tions: 1. Failure of physical therapist to follow and adhere to the physi- cian’s order. 2. Negligent administration of an enema and of failure to report timely to the attending physician. 3. Mislabeling, mishandling of a blood sample by a nurse. 4. Improper injection of medication by a nurse. 5. Insufficient number of nurses assisting a patient in walking to a restroom. These examples are drawn from the hospital environment but can be reasonably expected to occur in the patient's home. A more recent case occurred in Hawaii where a hospital was found to be negligent in failing to properly monitor a child's post-operative tonsillec- tomy. Specifically, it was found that the delay in discovering the child's respiratory and cardiac arrest was the result of failure to monitor on a “minute-by-minute basis.’ One can readily see from this example the clear analogy to the degree of care observation in monitoring that would likely ac- company ventilator-dependent cases in the home care setting. | do not believe that home care is unnecessarily risky or danger- ous. Home health care providers are well-advised, not only to con- sider, but also to evaluate and pre- pare for the potential liabilities that precedent has shown to exist. While providing a safer and more comfortable environment for the patient, there are many things that home health care providers may do to substantially minimize malprac- tice risks discussed earlier. Among these are the following: @ Careful screening of potential employee credentials. @ Increased emphasis on continu- ing education. @ Keeping abreast of state-of-the- art technology. Maipractice cases are definitely moving in the direction of requir- ing physicians and nurses and other health care personnel to re- main current with the latest devel- opments in medical technology. A central focus of such cases is prompt, complete and accurate patient charting, and adequate nurse supervision. An important factor which will undoubtedly have legal ramifica- tions, although the cases are not yet present in the books, is an acknowledgment by home care professionals that the atmosphere of caring for ventilator-dependent persons in their own home may vary substantially from the tradi- tional in-hospital setting. Patients, their families, and their relatives may be more lenient about adher- ing to physician and nurse orders in the home. Once a health proto- col has been established, it will be absolutely critical for home care providers to assure strict compli- ance in spite of the attitude of the parents and families. Another important factor in pro- viding care for the ventilator-de- pendent persons in the homeisthe social and psychological advan- tages. As a parent myself, | can readily envision that a child re- ceiving health care in the home would enjoy a better outlook. on life: This certainly tends to offset the incremental increased risk of heaith care delivery outside the in- Stitutional setting. It's my belief that recentdevelop- ments in medical technology per- mit health care personnel to. take advantage of the psycho-social value associated with caring for a patient in the home setting. Eco- nomic incentives intended-to fos: ter home care are now in place with the advent of Medicaid waiv- ers and prospective reimburse- ment plans. Legal liabilities and malpractice concerns are-ever present, and present reasonable questions which must be addressed openly. The study and analysis. of liabilities that have arisen in the hospital setting, can’ be used to forecast home care legal risks. Such analysis permits the con- clusion that recent advancements in medical and communication technology, taken together with continuing education, substan- tially reduce the legal risks asso- ciated with home care. Physicians and nurses and other health care professionals are quite correct that the benefits of the home care set- ting far outweigh the incremental risk of legal liability. The consci- entious home care provider will be setting new standards for reason- able care in the community. These standards do not exist at the pres- ent time, but there is no reason to fear their development. There is no Substitute for adequate training and for ongoing education. @