Frequent ED visitors = High risk of EMTALA violations
Frequent ED visitors = High risk of EMTALA violations
Always do an appropriate MSE
If an ED physician refuses to examine and treat a patient suspected of "drug seeking," this is an automatic violation of the Emergency Medical Treatment and Labor Act (EMTALA), warns Stephen A. Frew, JD, vice president and risk consultant with Johnson Insurance Services, a Madison, WI-based company specializing in risk management for health care professionals. Treatment does not necessarily mean that pain medications must be given, but it does mean that a complete assessment, work-up, and necessary consultations must be provided, he says.
"An inadequate or openly hostile record and an adverse outcome are likely to lead to a lawsuit or EMTALA complaint," says Frew. "Physicians who consider themselves 'narcs' by lecturing patients, calling them names, having them arrested in the ED and similar conduct greatly increase the risk of lawsuit or complaint for both the hospital and the physician."
In one such instance, a hospital received a Type One deficiency from the Joint Commission on Accreditation of Healthcare Organizations, as a result of failing to properly treat an out-of-town patient who came to the ED with clear documentation of an existing serious pain condition. The physician on duty is alleged to have accused the woman of "drug seeking" and refusing to evaluate the patient or contact the treating physician. "The complaint alleged that the physician told the patient that she was a "drug addict" and needed to "go cold turkey,"' says Frew. "It is alleged that his conduct was rude and abusive and failed to comply with Joint Commission standards for medical assessment and the patient's right to pain control."
There have been a number of EMTALA citations for inadequate assessment where the ED staff claimed this was because the patient was a "drug seeker," with the chart totally lacking evidence of compliance or justification for the patient being discharged, says Frew.
In one case, adverse and judgmental comments in the medical record about the patient resulted in a lawsuit against an ED physician, but the physician's comments in that case referred to malingering and not drug-seeking conduct. The case was dismissed because of the claimant being unable to establish specific damages, but that would probably not be the case with a "drug seeking" label, adds Frew. "In many states, an allegation of drug seeking conduct would be considered sufficiently defamatory that no specific damages would have to be proven."
The worst mistake is to assume the patient is "just a drug seeker" and fail to do a thorough evaluation, says Mary Jean Geroulo, JD, a health care attorney with Dallas, TX-based Stewart Stimmel. "It is absolutely essential to do a normal evaluation of that patient, to find out what is going on, and make sure that there is no emergency medical condition for what EMTALA would apply," she says.
The fact that a patient has been seen on prior or multiple occasions does not change the obligation for complete assessment on each and every visit, Frew emphasizes.
"I am reminded of a frequent visitor to my ED in the past. The patient had a chronic pain syndrome and frequently needed pain relief," says Sandra Schneider, MD, ED physician at the hospital and professor of emergency medicine at University of Rochester (NY). "One day she had a new complaint. Workup of that new complaint led to a diagnosis of cancer."
The ED physician may refer to prior visits and reference them as a part of a repeat visit, but if specific symptoms have changed or test results are of a type that may have changed since the prior visits, they may have to be repeated to comply with EMTALA, says Frew.
Repeat visits within a 48 hour period are sufficient by themselves to cause investigators from the Centers for Medicare & Medicaid Services (CMS) to conduct a complete review of all patient visits for an individual that often result in citations for inadequate assessment on multiple visits, he says.
"From a medical-legal perspective, repeat visits the same day raise ominous red flags," adds Frew. "An adverse outcome after repeat visits typically results in a greater chance of litigation or CMS investigations."
However, once a patient has had a medical screening examination (MSE) and it is determined that no emergency medical condition exists, the hospital has no obligation under EMTALA to treat them or to give pain medications, and you can refer the patient to other health care providers, says Geroulo. "CMS says no, there is no obligation to provide pain medications at that point. So even Medicare backs that up," she says.
The point is, EDs don't have to do anything more than they normally would, says Linda M. Stimmel, JD, a partner with Stewart Stimmel. "As long as the patient is stable and has a medical screening examination, I'm not worried about them getting sued if they don't give them pain medication," she says.
Document the MSE adequately, to show that no current conditions constitute an emergency medical condition, Frew advises. However, under EMTALA, symptoms of substance abuse are within the class of emergency medical conditions requiring further evaluation, testing, and stabilizing care, he says.
Where there is suspicion of drug dependency, the MSE should include necessary testing, a pain consult and psychological evaluation if available, and assessment for risks of withdrawal if discharge is considered, says Frew.
The patient must be adequately evaluated for risk of withdrawal, which is considered an emergency medical condition under EMTALA, says Frew. If the patient is at risk for withdrawal following discharge, discharge may be prohibited by EMTALA, as the patient's emergency medical condition makes it likely that the patient would deteriorate following discharge, he explains.
Where the patient is under the treatment of a physician who has prescribed drugs, contact with the treating physician should be made before making a disposition decision, Frew recommends.
If the hospital and physician fail to provide the same evaluation and care to a potential "drug seeker" as they would provide to anyone with a similar presenting complaint, an automatic EMTALA violation has occurred that could lead to malpractice or EMTALA lawsuits for any adverse outcome, or CMS citations for violations — whether or not any harm occurs to the patient, says Frew.
"CMS, however, can be expected to issue more citation elements, be harder to please with a plan of correction, and OIG will be harder to settle on fines if the patient actually has a missed condition or untreated condition," says Frew. "I mention the untreated condition because advanced drug seekers have been known to physically injure themselves to get drugs. Refusing to see or treat these injuries would have a high risk of adverse outcome."
The bottom line is that all presenting patients are entitled to proper triage, medical screening, testing, on-call assessment, and stabilization regardless of whether they are "frequent fliers" or drug seekers, says Frew. "Judgmental attitudes, potentially offensive or insulting comments or behavior, including body language or gestures, should be prohibited," he stresses. "ED nurses and physicians who treat these patients with any less professionalism than others are a risk to themselves, to the hospital, and to patients in general."
If an ED physician refuses to examine and treat a patient suspected of "drug seeking," this is an automatic violation of the Emergency Medical Treatment and Labor Act (EMTALA).Subscribe Now for Access
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