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April 25, 2024

Premature Discharge

Necessity or Negligence?

By Alex Hasselman

Despite having the world’s most expensive health industry, the United States only ranks 35th  on the list of healthiest countries in the world. Between 2010 and 2019, the number of health center patient visits in the U.S. went from 77.1 million to 122.8 million. For all of 2020 and 2021, the U.S. and the rest of the world were relentlessly fighting against the COVID-19 outbreak that has killed more than 7 million people to date. Many hospitals prioritized COVID-19 patients, which led to a lack of available hospital beds for potential patients. The pandemic has killed over 700,000 Americans, but it has indirectly killed many more—all the people with treatable health emergencies who were unable to obtain care at hospitals overwhelmed with COVID patients. The overwhelming surge of patients and need to treat COVID-19 and critical care patients put hospitals in a bind—the kind that could lead to premature discharges from hospitals. 

What is Premature Discharge? 

Premature discharge is generally defined as any instance in which a patient is released from a medical facility before it is safe to reasonably do so. It can also be viewed as a physician’s negligent decision to release a patient who is at risk of further injury or death.

Doctors and medical facilities owe their patients a standard duty of care. In a medical malpractice case, a plaintiff must show that the physician or medical facility breached their duty of care in making the decision to release them. Additionally, the plaintiff must prove that a similar physician or team would have performed something differently in the same situation to provide reasonable care. Finally, the plaintiff must show that the premature discharge led to harm and significant damages, to include extra medical bills, readmission, pain and suffering, or worsening or creating a new condition.

Why Patients Are Discharged Prematurely

A hospital can face certain dilemmas that lead to the premature discharge of a patient. The first issue regards a hospital’s capacity and ability to plan: Hospitals are sometimes faced with overcrowding, which occurs when there are too many incoming patients and not enough outgoing patients to balance out the number of hospital beds. Additionally, this can happen due to staffing issues. In this situation, hospitals may feel pressure to discharge patients in an attempt to not only vacate hospital beds, but also to provide care to an increased number of patients coming by filling new hospital beds.

COVID-19 brought these issues into the spotlight. During the early days of the pandemic, hospital beds were at maximum capacity and facilities were forced to reject patients. The strain this put on hospitals was apparent in Italy and New York City, where hospitals were packed with COVID-19 patients. At one point, Italy had 500 triage tents outside hospitals nationwide to try to accommodate the severity of the outbreak within the country. Rare circumstances like these can put hospitals in a chokehold and test the planning and staffing capabilities of a hospital.

Since then, staffing shortages have plagued the healthcare system, leading to an increased risk of premature discharge occurring in hospitals. Between 2019 and 2022, burnout in doctors and nurses increased by 8% across the board. The burnout in nurses was higher, as 29%—an increase from 11%—said they wanted to leave the field. Meanwhile, roughly 1.5 million healthcare jobs were lost in the first two months of COVID-19 as the U.S. temporarily closed clinics and restricted non-emergency services at U.S. hospitals. Although many of those positions have returned, healthcare employment remains 1.1% under pre-pandemic levels. The American Hospital Association declared this workforce shortage a national emergency, as hospitals, especially in rural areas, have less access to vital healthcare.

Other staffing challenges that the healthcare industry faces include an aging population and a lack of nursing faculty. By 2030, it is estimated that the population of people over the age of 65 will increase from 17% to 21%. This population is more prone to heart disease, arthritis, cancer, Alzheimer’s, and other serious medical issues that require more hospitalization as well as longer stays in hospitals. This puts even greater pressure on hospitals to increase staffing and capacity in order to satisfy a population of people 65 and over that will grow by 13.5 million in the next eight years. If the healthcare system is not proactive about the growing high-risk population, there could be risks of turning patients away, incomplete medical care, and reduced effectiveness at handling emergencies or other crises.

By 2025, the U.S. is estimated to have a shortage of approximately 446,000 home health aides, 95,000 nursing assistants, 98,700 medical and lab technologists and technicians, and more than 29,000 nurse practitioners, according to a 2021 report conducted by industry market analytic firm Mercer. In the two years prior to the 2021 report, nursing colleges turned away 80,407 applicants due to lack of capacity in the schools. In 2021, another 91,938 applicants were turned away due insufficient number of faculty, clinical sites, classroom space, and budget constraints. By 2030, 1 million nurses—almost a third of the current nurse workforce—are expected to retire. Although the nurse workforce is expected to grow, the looming retirement of older nurses and the increase in the population of persons 65 and older will be constraints on the availability of hospital beds and care for future patients.

Is It Preventable?

As the dire need for increased staffing grows, medical centers must find ways to combat staffing shortages, an aging population, and lack of hospital beds in a way that is efficient and feasible. But how can a hospital increase the number of hospital beds and staff without increasing the capacity? Two key ways to achieve this are to construct larger hospitals or improve and streamline patient flow. Expansion can be time-consuming and expensive, with physical beds exceeding $1 million per bed. The quickest solution is to improve patient flow by cycling patients in and out of the hospital quickly, however, a hospital’s negligence with cycling patients out too quickly could constitute premature discharge. This can threaten patient safety and open the hospital up to litigation.

During the pandemic, the government was there to lend aid to hospitals by creating extra staffing and resources through military personnel and government task forces. In 2022, the White House deployed 1,000 military personnel across the nation to provide aid to hospitals around the country. Administering a vaccine or medical care to COVID patients was a manageable task, permitting military personnel to jump in and have an immediate impact. This “deployment” was crucial in slowing down the spread of the omicron variant, which was feared to spike the number of fatalities across the globe. President Biden also instructed the Federal Emergency Management Agency (FEMA) to provide aid to hospitals.

As more information came out about COVID-19, more changes were made to the guidelines adopted by the Centers for Disease Control and Prevention (CDC). For example, at the start of COVID-19, the guidance recommended that a person who caught the virus should stay home isolated for 14 days. Following the omicron variant, the guidelines changed to a five-day quarantine. This had two major benefits. The first was that medical personnel who caught COVID could come back to work at a faster rate. This change more than halved the rate at which medical personnel had to be out of commission recovering from COVID-19. Second, hospital beds weren’t being occupied as long because patients with COVID-19 in the hospitals could get discharged earlier in compliance with the CDC guidelines.

Although COVID-19 is still here, the vaccines have helped slow the spread, and things have gone relatively back to normal. Still, medical personnel staffing is about 1% less than it was prior to COVID-19. Although this looks negligible, that 1% encompasses about 147,000 healthcare workers. To prevent premature discharge, hospitals need both short-term and long-term strategies to deal with the shortage alongside the increasing demand for health services over the next eight years and beyond.

In the short term, hospitals have generally gotten by with signing bonuses and competitive salaries. A survey of 1,000 healthcare workers found that between September 2021 and February 2022, 18% had quit their jobs. A similar survey of 1,100 healthcare workers found that roughly 25% of respondents wanted to quit their jobs in the near future. This leaves the healthcare industry with the task of going above and beyond for their workers. Some hospitals have created flexible schedules, while others have put an emphasis on job satisfaction. More advanced hospitals are even switching to using artificial intelligence (AI) to staff shifts appropriately to avoid burnout. These methods may prove effective, but the healthcare industry needs long-term strategies in order to neutralize the threat of under-staffing that looms across the industry for the not-so-far-away future.

Investments in healthcare have grown as the industry itself has evolved. Between 2013 and 2020 alone, $14.1 billion was invested into digital health venture funding. The highest point of investment was in Telehealth 2.0, which can decrease hospital visits and increase access to remote healthcare. During COVID-19, 30% of all visits during the pandemic were done over telehealth. The billions invested in telehealth helped shed some of the burden from in-patient facilities by slowing down the spread of COVID-19. Telehealth still has an impact today as hospitals face shortages, as it allows people with non-serious illnesses and ailments to seek care in a way that saves the hospital resources and helps limit the challenges of staffing and capacity by avoiding in-person visits. Although telehealth is just one solution, it illuminates the importance of investing in a healthcare system that must evolve in order to survive the heavy demands that will fall upon it in the next decades.

Finally, the healthcare system must work with the university system and the nursing system to provide better ways to increase staffing. Solutions such as expanding the responsibilities and qualifications of nurse practitioners and increasing the number of competent educational programs are all big steps that can help combat the shortage. To tie it back in, patients need to be given a standard duty of care when seeking health services. The United States cannot allow staffing issues or hospital capacity to prevent giving care to those who are in need.

The other prominent cause of premature discharge falls under negligence. As previously mentioned, for a plaintiff to succeed in a negligence claim, there must be: a breach of duty, agreement that most professionals would have performed differently, and damages to the plaintiff. Questions arise as to how subjective these elements are: How severely must the duty be breached? Do hospitals in rural areas have the means to perform the “correct” techniques that urban hospitals can afford? What constitutes significant damages?

Removing or discharging a patient from a hospital can create liability, where such conduct can be considered unreasonable in view of the patient's condition. One such discharge can result from a patient’s failure to pay for their medical bills. In these rare cases, hospitals fear that a patient won’t be able to pay for future services, so they discharge the patient after providing whatever care is convenient, and sometimes, the minimum standard of adequate care isn’t met. The Emergency Medical Treatment and Active Labor Act (EMTALA) imposes a duty on hospitals to (1) conduct medical-screening examinations, (2) provide necessary stabilizing treatment to any patient seeking emergency care in an emergency department, and (3) allows hospitals to transfer patients to a facility to provide services that the transferring hospital cannot provide. Despite the passage of EMTALA in 1986, the watchdog organization Public Citizen confirmed violations from 527 hospitals between 1996–2000. Some of these violations included refusing ER assistance to an unconscious individual with no pulse, failure to perform examinations on an individual with pneumonia, and a brain injury patient who was refused by a hospital with the capability of performing neurosurgery.

In a 2005 case, multiple physicians were sued for negligence when they prematurely discharged an infant who was in poor condition prior to leaving the hospital. The infant returned hours later with an uncontrolled toxic condition, which led to lifelong suffering of neurological damages. The defendants tried to dismiss the case on summary judgment, but the court denied it, stating that summary judgment could only be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Here, the court found that there was a genuine issue and denied summary judgment. The court noted that “In a medical malpractice suit, a plaintiff may sue a doctor, a hospital, or both, as long as he/she can establish negligence on the part of each particular defendant.” Hospitals are vicariously liable for the negligence of their employees, meaning that an employee’s failures and liability will shift to the hospital.


Premature discharge stems from a hospital’s need to fill beds and receive payments for health services. By pursuing these needs, hospitals can make mistakes like the cases mentioned above. Hospitals owe their patients a reasonable duty of care in the services they provide. However, negligence occurs when hospitals fail to adhere to that duty of care, and become more focused on a patient’s ability to pay, or to get more patients cycled in and out through the hospital.

The United States charges more per capita in healthcare than any other developed country in the world. With the high cost of healthcare, patients deserve reasonable care through relying on healthcare experts. When these experts fail in their duties, it can lead to serious injury or death. With the litigious nature of the healthcare industry, hospitals need better standards of practice in place to avoid litigation for wrongful injury or death that results from premature discharge. However, as the healthcare staffing shortage increases, and as the number of patients on Medicare increases, healthcare must evolve to tackle the problem before it becomes unfixable.

Alex Hasselman

Willamette University College of Law, Salem, Oregon

Alex Hasselman is a 3L at Willamette University College of Law. He currently works for the Marion County District Attorney’s Office as a Certified Law Clerk for the Juvenile Division. Additionally, Mr. Hasselman is an executive editor for the Willamette Law Review. He can be reached at [email protected].

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