How to Discharge Difficult Patients Using the Law

Ensursing you have the law behind you when you want to discharge a difficult patient can be tricky. Hospitals and Healthsystems struggle on how to manange patients that no longer need acute care and are medical stable for discharge. They put an effective and safe plan in place, they communicate it to the patient and include the patient and or caregiver in the plan, have discussions with the interdisciplinary team and secure a place in the post-acute care continuum. Then when all is set and the day of discharge come the patient and or the caregiver refuse to leave, they may appeal and lose the appeal but still do not budge even when faced with a hospital issued notice of noncoverage. Now what? Do you try to evict, do you call security for trespassing? Most hospitals do not want to do that for fear of the wrath of patient satisfaction issues and or the bad pubilicity they may incur but what of the patient that needs that bed and has been waiting in the emergency room and now has a rising risk of an adverse event? In a recent study publised in JAMA patients who spent the night in the ED had a higher in-hospital mortality rate of 15.7% vs 11.1% (adjusted risk ratio [aRR], 1.39; 95% CI, 1.07-1.81). They also had a higher risk of adverse events compared with the ward group (aRR, 1.24; 95% CI, 1.04-1.49) and increased median length of stay (9 vs 8 days; rate ratio, 1.20; 95% CI, 1.11-1.31).(AMA Intern Med. doi:10.1001/jamainternmed.2023.5961 Published online November 6, 2023.)

Now you run the risk of having patients hurt by keeping them in the ED while a patient that no longer needs acute care ties up a bed and you knowingly left them in the bed for fear of social status in the community.

Well here is a checklist backup by law that may lead to a strategy to help you move those patients. Is it foolproof no, this is not legal advice and it should be used with the consent of your legal counsel but it is a stragey that this author has used before and it works.

Checklist for actions needed to discharge patients that refuse discharge.

 1.     Is the patient competent and is it documented

2.     List of facilities or post-acute care services that has accepted the patient and when and which ones were the preferred choice of the patient and mother

3.     Consent to transfer by patient if any

4.     Refusal to be transferred by patient with dates

5.     What date was patient formally found to be stable for discharge and by which physician

6.     Conversations by physician about the need to be transferred to a lower level of care

7.     Have any patients been turned away because of the patient occupying the current bed

8.     Any aberrant behavior by the patient, who witnessed, how many times, what actions were taken

9.     Date of denial for payment to the hospital by the insurance company

10.  Has the patient received appeal notice from the insurance company

11.  When did financial counselors speak to the patient and family about self-pay

12.  Has the patient been presented with a bill and how often (weekly)?

13.  List of facilities that has refused the patient and why

14.  Total number of referrals made and preferences by the patient

15.  Social work notes

16.  Family meetings

17.  Palliative Care conversations

18.  Any Referrals to post-acute care providers including home health, ALF, etc

19.  Did the patient receive any resource guidance for the homeless patient.

 California law

An injunction can be granted, subject to conditions imposed by applicable statutes, on a showing of:

an inadequate remedy at law, meaning that compensation would be insufficient;

1. a serious risk of irreparable harm absent injunctive relief;

2. a likelihood that the plaintiff will prevail on the merits of the underlying controversy; and

3. a comparison of the harm to defendant in issuing an injunction versus the harm to plaintiff in withholding it, which on balance favors the plaintiff.

Regarding the first element of a temporary injunction, Hospital has no adequate remedy at law. A civil action for money damages would be inadequate and inappropriate to remedy the ongoing harm which the plaintiff has demonstrated by the loss of these scarce medical resources.

Second, the hospital should argue that the actions of the ________________ are causing an immediate and irreparable harm for which no other adequate remedy at law exists. The irreparable harm claimed and proven is the loss of the hospital bed which could be utilized by someone in need of acute medical care, the overcrowding of the plaintiff's facility and the transfer of or refusal of care to other patients.

An injunction under these circumstances would allow the hospital to provide care for more seriously ill patients and permit it to utilize scarce medical resources better. There has been no medical evidence whatsoever to support the claim that the defendant should not be transferred to a lower level of care facility or to his home. The care which he continues to require includes social and dietary needs, basic nursing care, care of a tracheostomy and tube feedings and general housekeeping, which can more than adequately be provided by a lower level of care.

A New York court addressed a nearly identical situation in Matter of Wyckoff Heights Medical Center v. Rodriguez, 191 Misc.2d 207, 741 N.Y.S.2d 400 (2002). In that case, the patient of the hospital had been medically stabilized and discharged but refused to leave. The court granted an injunction finding that “[h]ospitals have a duty not to permit their facilities to be diverted to uses for which hospitals are not intended․ Thus; the very utility of a hospital is in jeopardy where a patient that no longer requires services refuses to leave thereby preventing other needy patients from space and inpatient care. A remedy in damages does not suffice since it does not correct the underlying problem posed by the patient's intransigence․ This drastic remedy is demanded by the drastic conduct of the patient and the fact that no other remedy is adequate. Therefore, where a hospital complies with statutory and administrative guidelines governing the discharge of patients then a failure of the patient to comply may result in a mandatory injunction requiring such patient to leave.” (Citations omitted; internal quotation marks omitted.) Id., at 209, 741 N.Y.S.2d 400. The court found that the patient's hospitalization was no longer medically necessary and that an appropriate discharge had been established. Since the patient could be adequately cared for either at a subacute care facility or his own home with proper in-home care, that relief was granted. Id., at 210, 741 N.Y.S.2d 400.

The court, in Jersey City Medical Center v. Halstead, 169 N.J.Super. 22, 404 A.2d 44 (1979), similarly addressed an issue where a patient, medically cleared for discharge, would not leave the hospital. The court found that the bed space at this acute care facility was at a premium and that: “[A hospital] has a moral duty to reserve its accommodations for persons who actually need medical and hospital care and it would be a deviation from its purposes to act as a nursing home for aged persons who do not need constant medical care but who need nursing care․ Hospitals have a duty not to permit their facilities to be diverted to the uses for which hospitals are not intended.” (Internal quotation marks omitted.) Id., at 24, 404 A.2d 44. The court went further and found that “[the hospital] owes a duty to the public which it serves to take all steps necessary to insure that adequate care is available to those in need of it, and this includes the removal of patients no longer in need of medical care.” Id., at 25, 404 A.2d 44.

The court, in Lucy Webb Hayes National Training School v. Geoghegan, 281 F.Supp. 116 (D.D.C.1967), went still further and determined that the patient, once medically discharged and no longer in need of hospital care, had become a trespasser due to her failure to vacate. “It has been established for a great many years that equity will enjoin a continuing trespass or a series of repeated trespasses where an action for damages would not be an adequate remedy. There is a leading English case on that point, London & Northwestern Railway Co. v. Lancashire & Yorkshire Railway Co., Law Reports 4 Equity Cases 174, 179. The Supreme Court has approved and enforced this doctrine on many occasions, Watson v. Sutherland, 5 Wall. 74, 79, 18 L.Ed. 580 [1866]; Donovan v. Pennsylvania Co., 199 U.S. 279, 304, 26 S.Ct. 91, 50 L.Ed. 192 [1905]; Archer v. Greenville Sand & Gravel Co., 233 U.S. 60, 65, 34 S.Ct. 567, 58 L.Ed. 850 [1913]. Various other Federal courts have applied the same doctrine, F. Burkart Mfg. Co. v. Case, 39 F.2d 5, 7 [ (8th. Cir.1930);] Swan Island Club, Inc., v. Ansell, 51 F.2d 337, 339 [ (4th Cir.1931);] where Judge Chesnut stated, ‘It is thoroughly well established that equity does have jurisdiction to restrain repeated and continuing trespasses.’ [United States v. Colvard, 89 F.2d 312, 314 (4th Cir.1937)] where Judge Parker, an eminent jurist, stated, ‘It is, of course, well settled that injunctive relief is proper against continuing trespass or against repeated trespasses where there is a threat of continuance and the remedy at law is inadequate or a multiplicity of suits would be avoided by the equitable remedy.’ The Court of Appeals of New York State in Wheelock v. Noonan, 108 N.Y. 179, [186,] 15 N.E. 67 [1888] stated, ‘It has very often been held that while, ordinarily, courts of equity will not wield their power merely to redress a trespass, yet they will interfere under peculiar circumstances, and have often done so where the trespass was a continuing one, and a multiplicity of suits at law was involved in the legal remedy.’ ” Lucy Webb Hayes National Training School v. Geoghegan, supra, at 118.

In addition to these several cases, there is a treatise in support of the plaintiff's position. 2 A. Capron & I.

Birnbaum, eds., Treatise on Health Care Law (2d Ed.2005) § 11.03, p. 11.18 states: “[O]nce the hospital has determined that a patient's discharge or transfer is medically indicated, the patient has no right to remain at the hospital. In some jurisdictions, the hospital may seek to remove the patient as a trespasser. A North Carolina statute even deems a patient's refusal to leave the property to be criminal trespass ․ The hospital may also pursue civil injunctive relief in the form of an eviction order or ejectment.”

The cases above demonstrate that this stragey is doable and can and will be justifiable when faced with a ptatient that will not leave a hospital bed when they know they no longer need the care that is being provided to them. Recently Dignity Health in California has filed suit against two former patients using trespass laws for refusing to leave thier facilities, it will be interesting to follow those cases to see the end outcome and the impact to how the law treats patients that are medically stable, that have safe and effective discharge plans but refuse to accept them.