This column first appeared in the San Antonio Express News on March 12, 2018.
Dear Mr. Premack: My mother was in the hospital for surgery, and was discharged home with some dressings that need to be changed and a drainage tube that needs to be kept clear. I was with her when they released her, and the nurses did not give her any instructions, so she didn’t know how to handle her care and I certainly didn’t know how, and we ended up in the emergency room. The doctor there knew immediately what to do and then sent her home again, this time with instructions and after showing me how to clear the drainage tube. Shouldn’t the hospital have done the same before she was sent home? – H.L.
Yes, the hospital should have made every effort to provide her with a care plan and to be sure that she (or a caretaker) was aware of what she would need. In fact, they have a legal obligation to do so ever since the Legislature passed Chapter 317 of the Texas Health and Safety Code. The legislature felt the need to give guidelines to hospitals was so pressing that they expedited the new law’s effective date. Instead of becoming law in September 2017 like most other bills, this took effect on May 26, 2017 when it was signed by the Governor.
Under the new law, when a person is admitted to the hospital (or at least before they are discharged or transferred to another facility) the hospital must give the patient the opportunity to appoint a “designated caregiver for aftercare”. If the patient is too ill to make a designation, then the patient’s legal guardian or surrogate decision-maker must have that opportunity.
If the patient will be discharged to a facility with professional caregivers (like to a rehabilitation center or nursing home) then an aftercare caregiver does not need to be designated. But if the patient will be discharged home, then an aftercare caregiver should be appointed.
By law, the “designated caregiver” has to be a relative, partner, friend, or neighbor, who is at least 18 years old, who has a significant relationship with the patient; and who “will provide aftercare” to the patient. By contrast, however, a person who is designated as caregiver is not legally obligated to perform that role. Hence, prior to making the designation the patient should always confirm the proposed caregiver’s willingness to act.
As soon as possible before a patient’s discharge or transfer (but not later than the time the attending physician issues a discharge order) the hospital is required to notify the designated caregiver of the patient’s discharge or transfer. If the caregiver cannot be found, the hospital must note its attempt in the patient’s records but can still move forward with the discharge.
The hospital is required to provide to the patient and designated caregiver a written discharge plan that describes (1) the aftercare tasks the patient requires written in a manner that is culturally competent (a concept required by but not defined by the new law); and (2) contact information for any health care resources necessary to meet the patient’s aftercare needs. Further, the hospital must give the caregiver instruction and training necessary for aftercare tasks.
Your mother’s hospital failed to follow the law. The law does not create a right to sue the hospital for this failure. Even so, you should lodge a complaint with the hospital’s management office. They should agree to fix their oversight by providing a late discharge plan and by providing you, as aftercare caregiver, the instruction and training required by Texas law.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.