Trial Magazine

Hospice is a patient-centered, cost-effective philosophy of care that uses an interdisciplinary team of health care professionals and trained volunteers.¹ These people provide compassionate care for those facing a life-limiting illness or injury, including expert medical care, pain management, and emotional and spiritual support expressly tailored to the patient’s needs and wishes. Hospice is based on the belief that each of us has the right to die pain-free and with dignity.²

Nearly 2 million patients receive hospice-type services every year.³ The number of hospice facilities continues to increase, with more than 6,100 locations nationwide.⁴ The four levels of hospice care are:

• routine hospice care (the most common; the patient has elected to receive hospice care)
• continuous home care (care provided between eight and 24 hours a day to manage pain)
• general inpatient care (pain control or other acute symptom management that cannot be provided in any other setting)
• inpatient respite care (to provide temporary relief to the patient’s primary caregiver).

Hospice care is primarily paid for by Medicare through the Medicare Hospice Benefit.⁵ It is billed by the day, and stays at for-profit facilities are substantially longer than at nonprofits (105 days versus 69 days).⁶ It is a $17 billion industry, and critics argue that Medicare payments incentivize enrolling more and more patients for longer stays—with the attendant loss of care quality that endangers patients.⁷ But despite the apparent challenges of representing someone with a terminal condition, here are some ways to hold hospice providers accountable for failing to ensure their patients live out their remaining days with comfort and dignity.

Hospice in Nursing Homes

As of 2014, hospice in skilled nursing facilities is growing faster than in any other care setting.⁸  At least 80 percent of hospice services must be provided in a residential setting.⁹ For some Medicare recipients, the nursing home is his or her residence. Nursing home residents who enroll in hospice continue to receive all the services they are entitled to from the nursing home. At the same time, these patients receive supplemental support and professional care for their terminal condition from the hospice agency. Additional benefits of hospice care delivered in the nursing home include enhanced pain management and increased family satisfaction with end-of-life care.

But the U.S. Department of Health and Human Services’ Office of Inspector General (HHS OIG) has identified quality-of-care concerns regarding hospice care provided in nursing homes.¹⁰ As a result, the Centers for Medicare and Medicaid Services finalized regulations governing the relationship between hospice care and skilled nursing facilities. Long-term care (LTC) facilities must have written agreements with all hospice providers serving residents in nursing homes. Authorized representatives of the hospice and the LTC facility must sign these agreements before any hospice care is furnished to the resident. The LTC facility must provide 24-hour room and board that meets the resident’s personal and nursing care needs.¹¹

The hospice patient residing in the LTC facility should not lack services or personal care—such as proper hygiene or adequate nutrition and hydration—because of the resident’s status as a hospice patient. The facility leadership must ensure that the hospice services meet professional standards and are provided in a timely manner based on a resident’s needs.¹²

How Hospices Fall Short

The HHS OIG has identified 28 risk areas for hospices and ways in which they can fail patients. These include uninformed consent to elect the Medicare Hospice Benefit, admitting patients to hospice care who are not terminally ill, insufficient oversight of patients from understaffing or inadequate training, overlapping with care typically provided by a nursing home, and improper billing practices.¹³

Common types of cases against hospice providers involve enrolling patients who aren’t dying, refusing to discharge patients who improve, over- or under-medicating a patient, medication errors, and ignoring patient directives such as do not resuscitate orders and doctor’s orders.

Additionally, patients may die from something other than why they were in hospice. For example, in one case, a terminally ill cancer patient died when she choked on liquid pain medication because her doctor failed to select morphine that could have been delivered intravenously. In another case, a hospice cancer patient was dropped on his head during a transfer and died from a subdural hematoma.

Just like nursing homes, hospice facilities are inspected for deficiencies. The types vary, but the root cause of many deficiencies is improper training of caregivers’ recordkeeping, such as not preparing written care plans.

Building a Case

At first glance, instances of deficient care in the hospice environment present obstacles for recovery. By definition, the patient is in an end-of-life setting where liability theories and damages models might not seem to fit. But many approaches to other types of long-term care cases apply here too.

Causes of action. Liability theories for maltreatment of hospice patients have met with varying degrees of success.¹⁴ The most common, and the most successful, is negligence.¹⁵ For example, a hospice patient in Tennessee was found with maggots in a bedsore due to deficient care in a nursing home.¹⁶ Contract theories have been less successful because care that diminishes the death with dignity that hospice is supposed to offer is not ­necessarily a breach of any contract between the provider and the patient or the patient’s family.¹⁷

Statutory causes of action designed to protect fragile adults or the elderly also have some degree of success and should be given careful consideration.¹⁸ Some states have enacted statutes designed to protect LTC facility residents.¹⁹ These statutes typically protect hospice patients residing in those facilities as well, but they usually offer no protection when hospice services are provided in the patient’s home. But similar statutes exist to prevent abuse or neglect of impaired adults, and those statutes can apply irrespective of where the services are provided.²⁰ The elements and recoverable damages typically are defined by those statutes.²¹

For example, the Arkansas residents’ rights statute allows any nursing home resident injured by deprivation of an enumerated right to recover for damages—including punitive damages when appropriate.²² Residents’ rights are extensive²³ and include the right to adequate and appropriate health care,  protective and support services, social services, mental health services, and therapeutic and rehabilitative services,²⁴ among many others.

Standard of care. It is important, particularly with negligence claims, to focus on the hospices’ standard of care that it owes to dying patients. The hospice is designed to provide them with minimal pain, maximum comfort, and dignity during the end stages of their lives—and the standard of care revolves around this. This approach is essentially no different from the approach to liability in the long-term care environment in general.

Evidence of deviations from the standard of care for hospice patients starts with the Medicare Hospice Benefit.²⁵ If the patient is in a nursing home, he or she has the added protection of regulations from the Omnibus Budget Reconciliation Act of 1987.²⁶ These regulations set the minimum level of care each nursing home resident is entitled to and are a baseline for the standard of care.

Patients are eligible to receive the Medicare Hospice Benefit if they are eligible for Medicare Part A and two physicians determine that the patient has six months or less to live if the disease runs its normal course.²⁷ The hospice medical director or hospice physician must certify that the patient has a terminal illness. The physician must include a brief, narrative explanation of the clinical findings that support a life expectancy of six months or less as part of the certification and recertification forms. A face-to-face examination is required. If the patient is a nursing home resident and elects hospice care, the Medicare Hospice Benefit covers all care related to the terminal prognosis.

The hospice team develops an individual care plan with the patient and family. This interdisciplinary team (IDT) usually consists of the hospice physician or medical director; nurses; hospice aides; social workers; bereavement counselors; clergy or other spiritual counselors; trained volunteers; and—if needed—speech, physical, and occupational therapists. IDT members make regular visits to assess the patient and provide additional care or other services.

Hospice staff is on-call 24/7. The attending physician’s role is to provide a long-term perspective on the patient and family that considers his or her medical and personal history.²⁸ The Medicare conditions of participation for hospice require that volunteers provide at least 5 percent of total patient-care hours.²⁹

The hospice also must have an effective compliance program, which includes:

• implementing written policies, procedures, and standards of conduct
• designating a compliance officer and compliance committee
• conducting training and education
• developing sufficient lines of communication
• enforcing standards with 
• well-publicized disciplinary guidelines
• conducting internal monitoring 
• and auditing
• responding promptly to detected offenses, and developing corrective actions.³⁰

Damages. Under typical survival statutes, the injuries inflicted on patients are recoverable by their estates after death.³¹ Recovery by family members for witnessing the patient’s suffering is more problematic. Survivors can recover for the emotional distress of losing a loved one under many states’ wrongful death statutes. In the hospice context, however, courts often hold that the hospice owes no duty to the family members directly.³²

For any liability theory, the damages model must focus on the value of comfort and dignity in the final days of life, as well as the loss family members suffer when their already limited time with their loved one is cut even shorter by the hospice provider’s deficient care or discrete act of negligence, such as a medication error. The value of comfort and dignity to the patient and the family in these last days, and every minute of every day possible, is exponentially increased by the knowledge that time is so limited.

Comfort and dignity in those last days are what hospices are for. When presenting damages, the focus is and must be on the harm the patient suffered in those last days when he or she was promised maximum comfort and dignity but was provided deficient care leading to pain, discomfort, and loss of dignity.³³

When hospices fail in their mission to provide patients with care in their final days, the tort system serves a valuable purpose in holding them responsible.

David J. Hoey is the founder of Hoey Law in Reading, Mass. He can be reached at dhoey@hoeylaw.com.

Notes

1. Nat’l Hospice & Palliative Care Org., Hospice Policy Compendium, The Medicare Hospice Benefit, Regulations, Quality Reporting, and Public Policy (Jan. 4, 2016), https://www.nhpco.org/sites/default/files/public/public_policy/Hospice_Policy_Compendium.pdf [hereinafter Hospice Policy Compendium].
2. Nat’l Hospice & Palliative Care Org., History of Hospice Care, www.nhpco.org/history-hospice-care.
3. Hospice Policy Compendium, supra note 1, at 1. For updated figures, see Nat’l Hospice & Palliative Care Org., NHPCO Facts and Figures, 2016, http://nhpco.org/sites/default/files/public/Statistics_Research/2016_Facts_Figures.pdf.
4. Hospice Policy Compendium, supra note 1, at 17. The NHPCO National Data Set compiles statistical information that provides a comprehensive picture of hospice operations and care delivery.  
5. Hospice Policy Compendium, supra note 1, at 83.
6. Ben Hallman, Hospice, Inc.: How Dying Became a Multibillion Dollar Industry, Huffington Post (June 19, 2014), http://projects.huffingtonpost.com/hospice-inc. The total number of days that a hospice patient receives care is referred to as the length of service (or length of stay). Length of service can be influenced by a number of factors, including disease course, timing of referral, and access to care. According to the NHCPO National Data Set, the average is 72.6 days. 
7. Hallman, supra note 6.
8. Tim Mullaney, Hospice Is Growing Fastest in Skilled Nursing Facilities, New Report Shows, McKnight’s Long-Term Care News (Nov. 5, 2014) (citing NHPCO annual report).
9. Hospice Policy Compendium, supra note 1, at 9.
10. U.S. Dep’t of Health & Human Servs., Office of Inspector General, Medicare Hospice Care for Beneficiaries in Nursing Facilities: Compliance with Medicare Coverage Requirements, OEI-02-06-00221 (Sept. 2009).
11. Sherrie Dornberger, Ask the Care Expert . . . About Hospice Rules, McKnight’s Long-Term Care News (Dec. 1, 2013), www.mcknights.com/news/ask-the-care-expert-about-hospice-rules/article/323336/.
12. Id. Three national organizations accredit hospice providers: the Joint Commission, Community Health Accreditation Partners, and the Accreditation Commission for Health Care.
13. Publication of the OIG Compliance Program, Guidance for Hospices, 64 Fed. Reg. 54031 (Oct. 5, 1999). Since 2006, the U.S. Department of Justice has accused nearly every major for-profit hospice company of billing fraud for knowingly submitting or causing the submission of false claims to Medicare for crisis care services that were not necessary, not actually provided, or not performed in accordance with Medicare requirements. 
14. For a thorough discussion of cases analyzing various theories of liability and damages models, see Dale J. Gilsinger, Liability of Hospice in Tort, in Contract, or Pursuant to Statute, for Maltreatment or Mistreatment of Patient, 95 A.L.R. 6th 479 (2014).
15. Id. at III.B.
16. Id. at 7 (discussing Champion v. CLC of Dyersburg, LLC, 359 S.W.3d 161 (Tenn. Ct. App. 2011)).
17. Id. at V.
18. Id. at IV.
19. See id. (discussing former Conn. Gen. Stat. Ann. §19a-550).
20. See id. (discussing Cal. Welf. & Inst. Code §15657).
21. See id. at Summary and Comment.
22. Ark. Code Ann. §20-10-1209 (2017).
23. Ark. Code Ann. §20-10-104.
24. Ark. Code Ann. §20-10-1204(a)(8).
25. Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. 97-248 (2016).
26. Those requirements can be found at 42 C.F.R. §483.1-75.
27. Hospice Policy Compendium, supra note 1, at 3.
28. Id. at 6.
29. Id. at 7. Volunteers work in three general areas: direct support by spending time with patients and families, clinical support by providing clerical and other services that support patient care and clinical services, and general support by helping with fundraising efforts or the board of directors.
30. 64 Fed. Reg. 54031.
31. A survey of individual survival and wrongful death statutory schemes is beyond the scope of this article. For an example of a pure survival statute allowing recovery for damages inflicted upon the victim prior to death, see Ark. Code Ann. §16-62-101.
32. See Gilsinger, supra note 14, at 9 (discussing duty owed to family members in negligence cases), 15 (discussing duty owed to family members in intentional tort cases).
33. See id. at 7 (discussing Champion, 359 S.W.3d 161).