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Hospice in Elder Abuse Litigation

Peter Lomhoff, Esq.

Hospice is a wonderful thing. Hospice care greatly eases the suffering of people who are dying and of their families. Hospice care is very difficult work, and everyone admires the dedicated nurses who are able to do it. We are all better off for what they do.

Hospice is also scary to plaintiffs’ lawyers doing elder abuse and wrongful death cases. We are told that the poor fellow had only a short time to live anyway, so the victim’s suffering and the wrongful death damages are minimal. We also worry that the hospice halo is so holy that we dare not question it.

The Fallacy of the Short Life Expectancy Defense

Let’s not undersell our clients’ rights because they are sick and old.

First of all, those remaining few weeks or months of life may be the most precious of all. That is the time when the family puts aside other concerns and tries to concentrate on reflecting on their lifetimes together. Reviewing old times, summing up, and letting go with love and dignity are really important. When that precious short time together is taken away because a nursing home, or a hospice agency or someone else, does something really stupid, or reckless or malicious, that is a very serious injury which a jury can understand. (That is also a type of injury that is especially appropriate to being understood with the methods taught by Gerry Spence’s Trial Lawyers College. If you do work for abused elders and haven’t been there yet, go to the College if you can.)

Secondly, the person’s life expectancy may not be so short after all. Increasingly in recent years hospice patients live longer than the normal six month life expectancy for hospice eligibility. There are two reasons:

Often hospice is used not for people who are dying, but instead to get extra help for people who will not die soon. Especially in assisted living facilities, but in other situations as well, we see cases where a doctor agrees to certify the patient as eligible for hospice simply to get additional nursing care, equipment, and counseling that are not available from other resources. There is no expectation that the person will die soon, but there is a need to get more supervision and help with nursing care and other needs in order for the person to enjoy a better quality of life in their remaining months or years.

A second important reason for long times on hospice for people who are not on the verge of dying is that they are very good business for hospice providers. See, e.g., “Medicare Rules Create a Booming Business in Hospice Care for People Who Aren’t Dying,” Washington Post, Dec. 26, 2013.

The Hospice Halo Is Not Always Holy

Hospices, just like nursing homes, sometimes make tragic mistakes. Hospices, like nursing homes, exploit the Medicare payment system, and exploit their own hard working and dedicated nurses, to make money, sometimes at the expense of patient care.

In one case, a stressed out hospice nurse, running late to get to her next appointment, took a quick look at our clients’ father, mistakenly thought he was actively dying when in fact he was only sundowning, and so slammed a big dose of phenobarbital up his rectum, which made sure he did die, peacefully and quickly. As our clients said, “We was robbed!”

In another recent case, another rushed hospice nurse left her patient alone with his hospital bed raised and his tab alarm detached while she hurried off to take care of something else. The patient tried to get up, no alarm sounded, and he was next seen strangled to death on his bed rail.

How did these tragedies happen? Both nurses were caught in a web that put too heavy demands on them in order for their employers to make a lot of money from Medicare.

Per patient profit for hospice care in California increased from 2002 to 2012 from $353 per patient to $1,975 according to the Washington Post article cited above. Compensation paid by Medicare for hospice care in 2013 ran from about $150 per patient per day to about $900 per patient per day depending on the category of care according to the CMS booklet on “Hospice Payment System,” (ICN 006817 Dec., 2013).

In my experience when a patient is certified for hospice, the hospice provider routinely orders rental of an expensive hospital bed and various expensive breathing apparatuses whether the patient needs it or not, and bills accordingly. Once the patient’s hospice category is set, and the reimbursement set accordingly, of course profit goes up if that care can be provided by fewer personnel or in less time, just like in a nursing home and other businesses, and the least able and most vulnerable among us can be treated accordingly.

Once the patient is on hospice, the patient receives palliative care provided by the hospice, not curative care provided by the SNF or by the HMO, and the HMO is no longer obligated to pay for care. When the patient is on hospice, Medicare pays only for hospice care, not for other medical care. The financial incentives can therefore be greatly distorted, particularly in the case of individuals who are not terminally ill but who seek hospice in order to get extra help, or who are sought out by hospice in order to get extra customers. If the hospice patient needs care other than palliative care, the hospice cannot provide it, and the patient’s former provider is no longer responsible for it because the person is on hospice.

In a recent case, our clients’ mother was declining, not dying, in the dementia care unit of a large assisted living RCFE. She needed more help than she was getting, so the RCFE advised her family to sign her up for hospice, which they did. When her care then went from bad to worse, the RCFE blamed the hospice and the hospice blamed the RCFE.

When a hospice patient needs care that hospice cannot or will not provide, the solution is usually to terminate hospice and return to normal medical care covered by Medicare or the HMO, but sometimes only after an injurious delay, and contrary to the HMO’s financial incentives.

When multiple providers are providing different categories of care at fixed rates, the incentive to let the other guy handle it, but at the same time not relinquish your own income stream, is clear.

In most cases hospice workers and other care providers try to do their best to take good care of their patients within the resources provided by their employers. Even so, when a tragic “failure to provide” care (Welfare and Institutions Code §15610.57(b)(2)) occurs, it helps to follow the money, because that’s often where “willful and conscious disregard of rights or safety” (Civil Code §3294(c); Welfare and Institutions Code §15657) can be found.

(Peter Lomhoff, Esq., is an elder abuse attorney in private practice in Oakland, CA.)