Legal Update: The Ride Home: Uber Complicated or Easy Lyft?

What do you do when a patient wants to climb into the back of an Uber, Lyft or taxi after surgery instead of riding home in the front seat with a responsible caregiver? And what if a patient tries to drive herself home, like the sly 80-year-old lady who told the nurses that her husband was at home waiting for her, but was unable to drive. She had a taxi take her to her car at the far end of the parking lot. She drove herself home, still under the influence of her auxiliary block and sedation. Her husband? No, he was not home waiting for her. He had died years before.

What's a surgical facility leader to do when a patient fails to comply with the CMS requirement that all patients must be discharged in the company of a responsible adult?

If you know beforehand that a patient won't have a ride home from a friend or family member, you can reschedule the case — although some suggest you should make a plan for discharge part of pre-op preparation to avoid last-minute cancellations.

But what if the patient's dressed and ready for discharge and there's no one in the waiting room to take her home — and there's no one she can call to come get her? (Even if a loved one is waiting at home, someone still needs to accompany the patient on the ride from the facility.)

The short answer: document, document, document. Have the patient sign an against medical advice (AMA) form, write up an incident report in the patient's medical record and notify the surgeon. While documentation is an essential factor of risk mitigation, there's no guarantee that documenting that the patient failed to comply with your discharge policy will be a successful defense in a lawsuit.

As Uber, Lyft and Uber Health — a means for healthcare organizations to offer transportation for patients — become more commonplace, it's increasingly clear that lawmakers will need to either modify the rules or provide formal guidance for surgical facilities.

Under New Jersey law, for example, there is no definition as to whether an Uber, Lyft or cab driver qualifies as an individual claiming responsibility for a patient. If the facility lets a patient go home with a for-hire driver and something happens to that patient, then you can certainly make an argument that the center is responsible for any injuries or death to the patient.

There are exceptions, such as patients who weren't sedated during surgery or received only a minor regional block — but be sure the physician who is responsible for the patient's care writes an order in the chart exempting the patient.

Otherwise, CMS and accreditation agencies require that all patients who receive any kind of sedation be released after surgery to "a responsible adult" who will go with the patient after discharge.

Two main questions to ask yourself:

• What can you do to mitigate or reduce the risk not only to the facility, but also to the doctors and all staff members as well?
• And what can you do if the patient just doesn't comply with your discharge policy?

At a minimum, have clear written policies regarding patient discharge — and notify patients of these requirements. Enforcing them is a car of a different color. Should a patient insist on taking Uber, Lyft or a cab, you must document the patient's knowing and willful deviation from the center's policies in the patient's medical record.

Here are some tips to help you avoid potential legal issues arising from patient discharges without accompaniment:

• In pre-op. Clearly set forth a requirement in the pre-operative paperworkfor patients to have a responsible adult driver to accompany them home. When you bring a patient in to schedule a procedure, advise her of this requirement and ask her to sign a document acknowledging the requirement to have a responsible adult present upon discharge.
• On the day of surgery. Verify that the patient has a responsible adult present in the waiting room. If the surgery is going to take several hours, ensure the responsible person will be present upon completion of the procedure. Ask for the individual's contact information. You could give the patient's ride home a beeper so he can run an errand or grab a bite rather than sit in the waiting room.
• Upon discharge. If a patient doesn't have someone — a friend, a family member or someone who is claiming responsibility for that patient — I recommend you wait to discharge her until someone arrives. If a patient insists on using an Uber, Lyft, cab or other transportation source, note that you advised the patient of your policies and procedures in the patient's record and have a staff member assist the patient to the vehicle.

While the law might be unclear and lagging behind the marketplace, one thing remains a constant: Documentation is an essential factor of risk mitigation. Maintain documentation at all stages of patient care. It starts before the patient ever enters the center. Craft your discharge policies to comply with applicable law, accreditation standards and CMS conditions for payment. Document that you explained these procedures to the patient. And finally, if the patient chooses to deviate from these policies and protocols, document in the record how you attempted to avoid those instances. While there is no way to eliminate risk, preparation and documentation are clear ways to mitigate it. OSM