Emergency Medicine Specialty Reports - EMTALA Update: Current Practice and Future Impact
Author: Jay C. Weaver, JD, EMT-P, Boston Public Health Commission Emergency Medical Services; Adjunct Faculty, Northeastern University, Boston.
Peer Reviewer: James Hubler, MD, JD, FCLM, FAAEM, FACEP, Clinical Assistant Professor of Surgery, Department of Emergency Medicine, University of Illinois College of Medicine at Peoria; EMS Medical Director, Central Illinois Center for Emergency Medicine, OSF Saint Francis Hospital, Peoria, IL.
In 1986, when the federal government proposed the first "anti-dumping" legislation in the form of the Emergency Medical Treatment and Labor Act (EMTALA), the practice of emergency medicine changed forever. The law originally was designed to prevent hospitals from refusing to treat patients or transferring patients to other hospitals for financial reasons. Since the legislation has been enacted, much confusion has occurred regarding how best to comply with the constantly evolving mandates. During the past four years, the U.S. Department of Health and Human Services (HHS) has instituted an aggressive enforcement campaign with millions in fines levied against individual physicians and hospitals. Some reports indicate that the law actually has impaired rather than promoted patient access to care.1
Recently, the Centers for Medicare and Medicaid Services (CMS) proposed several changes to EMTALA that attempt to clarify hospital and physician duties. While these changes have yet to be instituted, many experts anticipate that regulatory amendments will be adopted this year. Undoubtedly, this new legislation will have an impact upon the care of emergency patients and the emergency physicians caring for them. In this issue, the current requirements of the law as well as the proposed future direction of EMTALA will be discussed.
This article will focus on emergency department (ED) liability under EMTALA. The first section will describe the background of this legislation. The second section will examine the obligations of hospitals and ED personnel under EMTALA. The article will conclude with practical suggestions for avoiding EMTALA liability in the ED.—The Editor
The History of EMTALA
American common law traditionally imposed no duty on physicians to initiate care. Doctors had an obligation not to abandon their patients once treatment had begun,2 but in general, they could refuse to enter a physician-patient relationship for any reason.3 This right existed even when the individual seeking care suffered from a potentially life-threatening condition.4 Nineteen states eventually imposed statutory obligations on hospitals to provide emergency care to all who needed it, but these statutes rarely were enforced.5
Well into the 1980s, then, individuals could not be certain that they would receive treatment upon entering an ED. Efforts by the federal government to compel emergency treatment through antidiscrimination statutes6 and the Internal Revenue Code7 succeeded only in creating a patchwork of obligations not applicable to all patients. Thousands of hospitals agreed to provide a "reasonable volume" of uncompensated care in exchange for federal funding under the Hill-Burton Act,8 but even this did not ensure consistent access to emergency services.9 "Deplorably lax" compliance by the hospitals,10 coupled with virtually nonexistent enforcement by the HHS,5,11 continually undermined Hill-Burton’s intent.5 Furthermore, the vague language of the statute caused disagreement among the courts over the extent to which it created a private right of action.12
Concern over the availability of emergency health care to the poor grew during the 1980s as a result of highly publicized incidents of "patient dumping."13,14 Pressured to contain costs, while at the same time confronted by growing numbers of indigent patients,15 hospitals routinely transferred uninsured patients to other facilities, often without first providing medical stabilizing care. Meanwhile, some EDs went even further, flatly refusing to provide treatment to such patients.13
Intent on closing the gaps in protection left open by the Hill-Burton Act and other federal statutes,5,13 Congress enacted EMTALA as part of the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1986.16 This statute imposed on Medicare-provider hospitals "a duty to afford medical screening and stabilizing treatment to any patient who seeks care in a hospital emergency room."14 Unlike federal antidiscrimination statutes, which protect only certain classes of individuals, EMTALA confers a right to emergency treatment upon everyone who enters a qualified hospital.17-20 And unlike the Hill-Burton Act, it expressly creates a private right of action against hospitals that fail to comply.21
EMTALA occupies just five pages of the United States Code. Despite its brevity, this statute has generated a steady flow of litigation in the 17 years since it took effect. The Health Care Financing Administration (HCFA) and its successor, CMS, have adopted several sets of regulations intended to clarify the obligations of hospitals under EMTALA. CMS last amended these regulations in April 2000.22 Health care experts have expressed optimism that the regulations now under consideration will lessen the burden of compliance by hospitals overall, in addition to providing badly needed clarification.23
Hospital Obligations Under EMTALA
Congress has not preempted state law regarding the provision of health care.24 Each state, therefore, retains the right to regulate care provided to individuals within its jurisdiction.25 Accordingly, the federal government lacks the authority to compel all hospitals to open their doors to all patients. Instead, Congress has circumvented this problem—as it did in 1946, when crafting the Hill- Burton Act—by linking obligations under EMTALA to the receipt of federal funding. Only hospitals that voluntarily execute Medicare provider agreements must comply with the statute’s provisions.26 Conversely, qualified hospitals that fail to comply may lose the right to participate in the Medicare program.27-31
The first step in analyzing potential EMTALA liability, then, is to ascertain whether the hospital accepts Medicare funding. The vast majority of hospitals with EDs fall within this category, but a few do not. Hospitals need not concern themselves with liability under EMTALA if they have not executed a Medicare provider agreement.
Coming to the Emergency Department
A hospital’s obligation under EMTALA begins when an individual comes to the ED and requests examination or treatment for a medical condition.32 It logically follows, then, that a hospital can incur obligations under EMTALA only when it actually operates an emergency department. Rehabilitation hospitals and other facilities that do not categorize hold themselves as emergency care providers fall outside the scope of EMTALA, regardless of whether they participate in the Medicare program or not. These facilities must take care not to erect signage or conduct activities that might be construed as offering "emergency care" to the public, lest they unwittingly subject themselves to EMTALA’s requirements.33
EMTALA does not define the term "emergency department." Remarkably, this oversight has not produced significant litigation.
Determining whether an individual has "come to the emergency department," on the other hand, has proven quite problematic. In Baber v. Hospital Corporation of America, the plaintiffs alleged that a hospital had violated EMTALA by failing to provide a screening examination to a patient transferred from another hospital’s ED. Rather then receiving an examination in the ED at the receiving facility, the patient was admitted directly to the psychiatric ward, where she soon lapsed into a coma and died of an intracerebral hemorrhage. Finding that the patient "did not present herself to [ the defendant’s] emergency department for treatment," the Fourth Circuit Court of Appeals held that the hospital had committed no EMTALA violation.34,35 Likewise, the courts in Miller v. Medical Center of Southwest Florida, have held that contacting an ED by telephone does not, by itself, constitute "coming to the emergency department."36
Communications between emergency medical services (EMS) personnel and ED personnel raise a more complicated issue. In Johnson v. University of Chicago Hospitals, a nurse at the University of Chicago Hospitals (UCH) instructed paramedics by radio to transport a pulseless infant to St. Bernard’s Hospital, rather than to the UCH ED, which was located just five blocks from the scene of the 911 call. The nurse issued this instruction because UCH had gone on "partial bypass" status due to a lack of available beds in its pediatric intensive care unit. In the subsequent wrongful death lawsuit against UCH, the infant’s mother alleged that UCH had violated EMTALA by ordering an unstable patient transferred away. Finding that UCH had ordered the diversion in its capacity as an EMS resource hospital, not as a receiving facility, the Seventh Circuit dismissed the EMTALA claim. However, the court suggested that communications between ambulance personnel and an ED might, under the right circumstances, trigger EMTALA protection. "Although the Act refers to individuals who come to the hospital," the court wrote, "we agree with [plaintiff’s] assertion that an individual can seek medical assistance from a hospital through telemetry communications and paramedic services without coming to the hospital’s emergency room."37
In the years since Johnson, HHS has issued regulations that comport at least to some extent with the Seventh Circuit’s reasoning. These regulations define "comes to the emergency room" as meaning "on the hospital property." "Hospital property," in turn, includes ambulances owned and operated by the hospital, regardless of their location, as well as non-hospital-owned ambulances that have arrived on hospital grounds. The regulations further specify that communication between ambulance personnel and ED personnel does not constitute "coming to the emergency department." At the same time, however, the regulations allow an ED to deny access in such cases only when it has entered "diversionary status" due to insufficient emergency staff or facilities.38
These regulations figured prominently in a 2001 Ninth Circuit decision, Arrington v. Wong.39 There, paramedics announced by radio that they intended to transport a patient suffering from severe respiratory distress to the defendant hospital. A physician in the ED replied that he thought it would be OK to bring the patient to a different facility at which the patient normally received care. Interpreting this as a directive, the paramedics proceeded to the more distant hospital, and the patient died shortly after arrival. In the trial that followed, the district court held that radio contact alone does not constitute "coming to the emergency room."40 Relying more heavily on the "diversionary status" language in the regulations, the Ninth Circuit reversed on grounds that "[a] hospital may not prevent a non-hospital-owned ambulance from coming to the hospital, unless it has a valid treatment-related reason for doing so."39
CMS has endeavored to resolve some of these issues by incorporating into its proposed regulations a new designation: the "dedicated emergency department." A designated ED would be a "specially equipped and staffed area of the hospital that is used for a significant portion of the time for the initial evaluation and treatment of outpatients for emergency medical conditions."41 This would encompass not only the traditional "emergency room," but also labor and delivery departments, psychiatric units, and other components of the hospital—whether located on the main campus or outside of it—"held out to the public as an appropriate place to come for medical services on an urgent, nonappointment basis."42 An individual who seeks emergency care in any of these areas, therefore, would be entitled to EMTALA’s protection. CMS has not yet decided whether to quantify the phrase "significant portion of the time" for the purpose of identifying designated EDs. Thus, under the final rule, a location within a hospital might be deemed a "designated emergency department" only if a specified percentage of the patients treated in that area go there for the purpose of obtaining emergency care.42
HHS recognized long ago that individuals who come to a hospital for the purpose of obtaining emergency care may require treatment even before they enter the ED.42 An individual may collapse after walking through the main entrance, for example, or a clerk in the registration area outside of the ED may observe that a patient’s condition suddenly has worsened. To ensure that these individuals fall within the scope of protection afforded by EMTALA, the existing regulations utilize arrival on the "hospital property" as the defining moment, rather than physical presence in the ED.38 "Hospital property," in turn, currently includes not only the main hospital buildings, but also structures and outdoor areas of the hospital within 250 yards of those buildings,38,43 and outpatient departments of the hospital located in separate facilities away from the main campus.44 Utilization of the term "emergency department" or "emergency room" does not automatically place a hospital within the scope of EMTALA. Nor does the absence of such terminology obviate EMTALA duties. CMS has indicated, however, that a facility will be treated as a "designated emergency department" where it would be "perceived by a prudent layperson as [an] appropriate place to go for emergency care."44 CMS regulations presently require personnel in off-campus departments routinely staffed by doctors or nurses to possess training in emergency care. Personnel in other off-campus departments must receive protocols directing them to contact emergency personnel at the main campus in appropriate situations.45
CMS has proposed one crucial change to these definitions: Excluded from EMTALA coverage would be "areas or structures that are located within 250 yards of the hospital’s main building but are not a part of the hospital."41 Thus, under the new regulations, a hospital no longer will incur EMTALA obligation for emergencies occurring in doctor’s offices, skilled nursing facilities, or other non-medical facilities, such as shops or restaurants—even when these facilities are located on hospital grounds.41 EMTALA liability will exist at facilities located off the main hospital campus only where that facility qualifies as a "designated emergency department" under CMS regulations.33,41 These changes significantly will reduce the scope of obligations for many hospitals.
Under the new CMS regulations, hospital-owned ambulances will continue to be treated as an extension of the dedicated ED. CMS has crafted an exception to this rule, however, applicable to hospital-owned ambulance operating under a community-wide protocol. These protocols often dictate the destination of all ambulances operating within a specified geographical region. They may require, for example, that all 911 ambulances transport patients to the nearest hospital. Under the new regulation, transporting a patient to a hospital other than the one that owns the ambulance will not result in an EMTALA violation as long as the ambulance transports the patient in accordance with an applicable community-wide protocol. In these instances, patients will be treated as having "come to the emergency department" of the hospital to which they actually are delivered.46,47
Inpatients will have no rights under the proposed EMTALA regulations, except to the extent that they may have accrued EMTALA rights prior to admission.48 The proposed regulations do not specifically address the issue of scheduled outpatient visits, but CMS has indicated in the preamble to its proposed regulations that it will not treat individuals who arrive for appointments as "coming to the emergency department" for EMTALA purposes.49 Both inpatients and outpatients who arrive for scheduled appointments are entitled to receive care in accordance with Medicare regulations governing participation agreements, however.49
Screening Examinations
Once an individual has come to an ED and requested assistance with a medical condition, the hospital must provide "an appropriate medical screening examination within the capability of the hospital’s emergency department" to determine whether an emergency condition exists. In so doing, the ED must make use of the hospital’s ancillary services. EMTALA refers to this process as a "medical screening examination."31
The screening examination required by EMTALA differs significantly from traditional diagnosis. EMTALA screenings are conducted for a very limited purpose—to determine whether the subject of the screening requires emergency care.32
Recognizing that an EMTALA screening is not meant to take the place of a comprehensive physical examination, the courts have refrained from applying a malpractice standard of care. Plaintiffs have introduced misdiagnosis as evidence of EMTALA violations with remarkable frequency, but the courts universally have dismissed such evidence as indeterminative.50-52 In other words, misdiagnosis does not, by itself, give rise to an EMTALA claim.53-55
Having decided that the traditional rules of malpractice do not apply, the courts have struggled to determine what constitutes an "appropriate" screening examination. "Appropriate," as the Sixth Circuit Court of Appeals observed in one EMTALA case, "is one of the most wonderful weasel words in the dictionary, and a great aid to the resolution of disputed issues in the drafting of legislation."20 By including this term in the statutory language of EMTALA, Congress has left the sufficiency of each screening examination open to judicial analysis.
For the most part, courts have responded to this dilemma by adopting a differential treatment standard. As long as a hospital provides similar screening examinations to all patients presenting with the same complaint, the examinations generally will be deemed "appropriate" under EMTALA.17,20,56-58 Hospital policies often serve as evidence of consistency in this regard.59,60 As the District of Columbia Circuit Court of Appeals noted in Gatewood v. Washington Healthcare Corporation: "[A] hospital fulfills the appropriate medical screening’ requirement when it conforms its treatment of a particular patient to its standard screening procedures. By the same token, any departure from standard screening procedures constitutes inappropriate screening in violation of [EMTALA]."14 A number of courts have held that de minimus deviations from standard procedures do not, by themselves, prove the existence of an EMTALA violation.59
A screening examination need not be performed by a physician. Rather, this task may be completed by any employee who meets certain criteria under Medicare regulations61 and is deemed qualified by the rules and regulations or bylaws of the hospital.62 Triage alone does not suffice in this regard. The extent of the required examination will vary with the nature of the individual’s complaint. CMS has indicated that in situations where the request for medical care is unlikely to involve an emergency, an individual’s statement that he is not seeking medical care, coupled with brief questioning by the ED personnel, would be sufficient to establish that no emergency condition exists.53 However, a hospital, therefore, may incur liability in failing to conduct a screening examination even when no emergency actually exists.63
Stabilizing Treatment for Emergency Medical Conditions and Labor
Once hospital personnel discover that an individual has an emergency medical condition, the hospital becomes obligated to provide stabilizing care.64,65 The hospital may not transfer or discharge that individual until the condition has been stabilized.66,67
An "emergency medical condition" for EMTALA purposes is one that might reasonably result in "serious impairment to bodily functions" or "serious dysfunction of any organ or body part." An emergency medical condition also exists where the health of the individual or an unborn child is jeopardized, or where a pregnant woman experiencing contractions cannot be transferred safely before delivery.68 The hospital must have actual knowledge of the emergency medical condition before an obligation to provide stabilizing treatment arises.17,20,51,52,69-72 Where the hospital does not learn of the emergency medical condition because of an inadequate screening examination, liability will arise under the act’s examination provision.73
Hospitals obligated to provide stabilizing care under EMTALA must do so within the capabilities of their staff and facilities.32,65,74 Unlike screening examinations, which generally must conform only to the ordinary practices of the hospital, the adequacy of stabilizing treatment is analyzed in terms of professional standards. A patient is considered stable when, within reasonable medical probability, "no material deterioration" is likely to occur.38 Once this state has been achieved, the obligation to provide treatment ends—at least with regard to EMTALA—and the hospital becomes free to discharge or transfer the patient.
A medical condition need not be alleviated entirely for the patient to be considered stable. In Brooker v. Desert Hospital, for example, a woman who entered the defendant hospital’s ED complaining of chest pain was found to have 99% occlusion of her left anterior descending artery and 70% occlusion of her right posterior descending artery. The hospital’s cardiac surgeon was not available, so the patient’s cardiologist inserted an intraaortic balloon pump and transferred the patient to another hospital for surgery. His progress note described the patient’s condition at that time as "clinically stable" but overall "critical." The patient brought action against the hospital, claiming that she had suffered myocardial infarction during the transfer, and that the hospital had violated EMTALA by transferring her without stabilizing her condition. The district court dismissed the claim. Noting that the patient’s condition had been "stabilized" as defined by EMTALA, the Ninth Circuit Court of Appeals affirmed.75
Some courts have interpreted EMTALA to mean that a hospital’s duty to provide stabilizing treatment ends with the patient’s admission to the hospital.69 In Bryant v. Redbud Community Hospital, a 17-year-old who had been treated and discharged from the defendant hospital’s ED was summoned back after x-rays revealed a lung abscess. He was admitted, transferred to the intensive care unit (ICU) at another hospital, and eventually discharged, but died shortly thereafter. In the ensuing wrongful death action, the plaintiffs conceded that the patient had received an appropriate medical screening, and that an obligation to stabilize did not arise during the initial ED visit, because the emergency condition went undetected. They also conceded that the transfer did not violate EMTALA. The plaintiffs alleged, however, that the hospital had incurred a duty to stabilize the patient once the lung abscess had been discovered, and that the hospital had breached that duty when it failed to stabilize the patient after admission. Finding that "EMTALA generally ceases to apply once a hospital admits an individual for patient care," the Ninth Circuit upheld summary judgment for the hospital.69
Other courts have taken an even more restrictive view of the stabilization requirement, holding that it applies only when the patient will be transferred. In Harry v. Marchant, a woman suffering from respiratory distress arrived by ambulance in the defendant hospital’s ED. She was admitted to the ICU after a lengthy delay and eventually died. The plaintiffs brought an action against the hospital, a nurse, and several doctors, alleging that the hospital’s negligent treatment had violated EMTALA’s stabilization requirement. The 11th Circuit held that this requirement applies only to patients who are transferred, and that the plaintiffs, therefore, had failed to state a claim.76
The Sixth Circuit has interpreted the stabilization requirement quite differently. In Thornton v. Southwest Detroit Hospital, a woman who had received emergency care for a stroke was discharged home after 21 days as an inpatient. Her condition deteriorated from a lack of rehabilitative care, and she brought action against the hospital, alleging that she had been discharged in an unstable condition. The court found that the hospital had, in fact, stabilized her condition, and therefore had complied with EMTALA, but it stressed that the patient’s status as an inpatient had not determined the outcome of the case. To the contrary, the court suggested that a violation of EMTALA can be established long after a patient had been admitted to the hospital, since "emergency care does not always stop when a patient is wheeled from the emergency room into the main hospital."77
The language of EMTALA and regulations promulgated thus far by CMS seem to track the 11th Circuit’s reasoning in Harry, im-posing an obligation to provide stabilizing care only until an "appro-priate transfer" occurs.78 At the same time, CMS has announced that it views the EMTALA stabilization requirement as continuing after admission. "Once a hospital has incurred an EMTALA obligation with respect to an individual," CMS has stated in the preamble to its proposed regulations, "that obligation continues while the individual remains at the hospital."79 In fact, CMS proposes to modify existing EMTALA regulation with the addition of a new subsection entitled "Application to inpatients—admitted emergency medical patients."80 This subsection specifically provides that "[a]dmitting an individual whose emergency medical condition has not been stabilized does not relieve the hospital of further responsibility to the individual under this section."81 CMS believes this change is justified as a means of preventing hospitals from admitting patients merely to circumvent stabilization liability.79
The proposed regulations further specify that a hospital will not be relieved of liability where an inpatient rapidly or frequently "goes in and out of stability."79 For the first time, hospitals will be required to document relevant clinical data establishing a "period of stability" to satisfy its stabilization responsibilities.82 CMS has not wavered from its position that EMTALA obligations cannot arise after a patient has been admitted for elective, "non-emergency" diagnosis or treatment, though,79,83 and the courts have embraced this position.53
Transfer
Beyond obligations to provide screening examinations and stabilizing treatment, EMTALA imposes several obligations on EDs that seek to transfer patients.
First, the patient or someone acting on the patient’s behalf, must make a written request for transfer after being informed of the hospital’s obligations.84 CMS requires the patient to include in this writing the reason for the request, as well an indication that the patient recognizes the risks and benefits of the transfer.85
Second, a physician must sign a certificate indicating that the benefits anticipated from treatment at the receiving facility outweigh the risk of the transfer. This certification must contain a summary of the risks and benefits upon which this decision is based.86,87 When a physician is not physically present in the ED, any other "qualified medical person" may sign the certificate.88,89
Third, the transfer must be "appropriate."90 To effectuate an appropriate transfer, the transferring hospital must provide stabilizing treatment that minimizes the risk of the transfer to the patient and any unborn child of that patient. The hospital must send with the patient copies of all available medical records relating to the patient’s emergency medical condition, as well as copies of the required consent and certification forms and the names of any on-call physician who refused or failed to appear within a reasonable time to provide stabilizing care. The receiving facility must possess adequate space and qualified personnel to treat the transferred patient, and the transfer must be conducted by qualified personnel utilizing adequate equipment.91
The courts have had little occasion to determine what constitutes an "appropriate" transfer. In Burditt v. United States Department of Health and Human Services, the Fifth Circuit held that a hospital had not conformed to EMTALA requirements when it transferred a severely hypertensive woman in active labor 170 miles for further care. The court found that the emergency medical technicians and obstetrical nurse who had accompanied the patient possessed the necessary qualifications to assist with an uncomplicated delivery, but that they could not have performed a caesarian section—a procedure that might well have become necessary, given the woman’s condition.31 A federal court held in Owens v. Nacogdoches County Hospital that an inappropriate transfer had occurred when the defendant hospital directed a patient to drive to another facility.92 The court in Wey v. Evangelical Community Hospital, on the other hand, held that the transfer of a patient with a fractured leg by private automobile did not violate EMTALA. This decision turned primarily on the fact that the plaintiff produced no expert testimony that this mode of transport was medically inappropriate, however.93
A hospital that refuses to accept an appropriate transfer can incur EMTALA liability for "reverse dumping." In St. Anthony Hospital v. United States Department of Health and Human Services, a physician at a rural ED attempted to transfer a patient who had sustained a traumatic aorta rupture, but the teaching hospital that was to receive the patient appropriately declined because it already had two emergency surgeries to perform. The ED physician then contacted a vascular surgeon at another hospital who also refused the transfer, saying that "the case was [the teaching hospital’s] problem." Finding that the patient had suffered from an unstabilized emergency medical condition, and that the transferring hospital lacked the ability to perform the complex surgical procedure needed, the 10th Circuit upheld a $50,000 fine levied against the hospital that had inappropriately refused to accept the transfer.30
CMS already has issued a regulation that prohibits reverse dumping. Section 489.24(e) of the EMTALA regulations require Medicare-provider hospitals possessing specialized capabilities to accept appropriate transfers from anywhere within the United States, except where the receiving hospital lacks the capacity to provide adequate care. Specialized capabilities include such facilities as burn units, trauma units, and neonatal ICUs.94 The proposed regulations do not affect this requirement.
Patients Who Refuse to Consent
Patients who possess the mental capacity to make rational treatment-related decisions need not consent to examination, stabilizing treatment, or transfer.95 A hospital meets the requirements of EMTALA as long as a hospital representative informs the individual of the risks and benefits associated with the proposed course of action, and as long as the encounter is properly documented. The medical record must contain a description of the activities that the patient refused. Additionally, the hospital must take "all reasonable steps" to obtain a written statement of refusal from the patient. This statement must include the reasons for the refusal and should reflect the fact that the risks and benefits were explained.96,97
On-Call Requirements
As a requirement of participation in the Medicare program, hospitals must maintain a list of on-call physicians who will examine and treat patients with emergency medical conditions.98-101 The responsibilities of these physicians must be defined within the hospital’s by-laws or policies.114 Failure of an on-call physician to respond within a reasonable time may constitute an EMTALA violation.103 Each hospital must adopt procedures that will ensure adequate coverage when an on-call physician cannot respond because of unanticipated circumstances.104
Recognizing that some hospitals possess limited staffing resources—particularly with regard to specialists—CMS has proposed a liberal on-call regulation that will leave decisions about staffing procedures largely to the hospitals. The new regulation expressly states that physicians need not remain "on call at all times." It also permits great latitude with respect to physician on-call lists, requiring only that they reflect the "best needs of the hospital’s patients."103 However, hospital administrators should not interpret this language to mean that they enjoy total freedom when making on-call staffing arrangements. CMS has indicated that it will review the adequacy of each on-call arrangement on a case-by-case basis, taking into account all relevant factors, including the number of available physicians, the frequency with which a particular specialty is utilized, and the sufficiency of any existing back-up plans.105
In June 2002, CMS revised its position on simultaneous on-call duties. Physicians now may serve on call at more than one hospital at a time, as long as each hospital involved is aware of the physician’s scheduling conflict.47
Prior Authorization
With so many Americans now covered by health maintenance organizations and other managed-care plans, ED personnel often contact the insurer before rendering care. This practice may be undertaken for the financial benefit of the hospital, or it may be done as an accommodation to the patient, who may require authorization to be indemnified. But ED personnel should not delay emergency medical screenings or stabilizing treatment to inquire about insurance or ability to pay. EMTALA expressly prohibits this practice.103
Notification
Medicare-provider hospitals must post—conspicuously in their EDs and in places likely to be noticed by individuals waiting to receive care—signs that describe the rights of individuals under EMTALA.106
Enforcement
Failure to comply with EMTALA can have dire consequences. One section of the statute creates a private right of action that allows individuals to claim "those damages available for personal injury under the law of the state in which the hospital is located."21 Another section confers a right of action upon "any medical facility that suffers a financial loss as a result of a participating hospital’s violation."107 The courts universally have held that plaintiffs may bring these actions only against hospitals, however, and not against individual physicians.57,108
EMTALA also provides for enforcement by the government. Hospitals and responsible physicians may be assessed fines of up to $50,000 per violation.109 Violations need not be intentional. To the contrary, the statute specifically creates penalties for negligent violations.109
Because EMTALA preempts state laws pertaining to the provision of emergency medical services, hospitals may not invoke any Good Samaritan immunity that may be conferred under state law.107 Public hospitals may be able to claim sovereign immunity under the 11th Amendment, however.110-112 The majority of courts have upheld state-imposed statutory damage caps.113,114
Avoiding EMTALA Liability
EMTALA imposes complex obligations on Medicare-provider hospitals. Hospitals can increase the likelihood of compliance by regularly educating their personnel about EMTALA’s requirements.
Hospitals continually should reinforce to their ED personnel the importance of providing equal treatment to all patients. The adoption of broad policies pertaining to screening examinations and stabilizing care will accomplish this goal without imposing rigid standards on ED staff—the deviation from which may, by itself, serve as evidence of an EMTALA violation. Screening examinations and stabilizing care should be documented thoroughly. Documentation becomes especially crucial any time ED personnel deviate from hospital policy.
Personnel in the ED and elsewhere in the hospital should be reminded that the obligation to provide stabilizing treatment continues even after admission. When admitting a patient, ED personnel must communicate adequately with nursing and medical personnel elsewhere in the hospital to ensure continuity of care.
When transferring a patient, ED personnel must ensure that the mode of transportation is appropriate. Personnel who will accompany the patient must possess adequate training, and proper equipment must be available. Allow patients to transport themselves only when there is virtually no chance of deterioration between facilities. Remember, too, that a copy of the medical record must accompany the patient.
Above all else, err on the side of caution when making discharge, admission, and transfer decisions.
References
1. Wanerman R. The EMTALA paradox. Ann Emerg Med 2002;40:464-469.
2. Le Jeune Rd. Hosp., Inc. v. Watson, 171 So.2d 202 (FL District Court of Appeals 1965).
3. Birmingham v. Baptist Hosp. v. Crews, 157 So. 224 (AL 1934).
4. Hiser v. Randolph, 617 P.2d 774 (AZ Ct. App. 1980).
5. Treiger KI. Preventing patient dumping: Sharpening the COBRA’s fangs (Note). New York University Law Review 1986;61:1186.
6. Americans with Disabilities Act, 42 United States Code sections 12,101-12,213.
7. Rev. Rul. 83-157 (1969), suggesting that the operation of an ED open to all regardless of ability to pay, combined with other activities, would satisfy the "charitable purposes" requirement necessary for tax-exempt status under IRS Code section 501(c)(3)).
8. 42 United States Code, section 291c(e)(1).
9. Rothenberg KH. Who cares? The evolution of the legal duty to provide emergency care. Houston Law Review 1989;26:21.
10. S. Rep. No. 93-1285, at 61 (1974). Reprinted in 1974 United States Code Congressional Administrative News 7842.
11. Dowell MA, Freifeld A. Hill-Burton uncompensated care: HHS administrative decisions and remedies. Clearinghouse Review 1985;19:133.
12. Flagstaff Med. Ctr. v. Sullivan, 962 F.2d 879 (9th Cir. 1992).
13. H.R. Rep. No. 99-241, pt. 1;1986: 5, 27. Reprinted in 1986 United States Code Congressional Administrative News:42.
14. Gatewood v. Washington Healthcare Corp., 933 F.2d 1037 (D.C. Cir. 1991).
15. Halfpenny JP. Taking aim at hospital "dumping" of emergency patients: The COBRA strikes back. Santa Clara Law Review 1991;31:693.
16. Emergency Medical Treatment and Active Delivery Act, 42 U.S. Code; section 1395dd.
17. Summers v. Baptist Med. Ctr. Arkadelphia, 91 F.3d 1132 (8th Cir. 1996).
18. Collins v. DePaul Hosp., 963 F.2d 303 (10th Cir. 1992).
19. Gatewood v. Washington Healthcare Corp., 933 F.2d at 1037 (D.C. Cir. 1991).
20. Cleland v. Bronson 917 F.2d 266 (6th Cir. 1990).
21. United States Code section 1395dd(d)(2)(A).
22. Hospital outpatient services. Prospective payment system. 65 Federal Register 2000:18,433.
23. EMTALA regs: You may be surprised at proposed changes to requirements. ED Management 2002;14:73.
24. 42 United States Code, section 1395dd(f). (Expressly providing that EMTALA preempts state and local laws only to the extent that there exists a direct conflict.)
25. Jacobson v. Massachusetts, 197 U.S. 11 (1905).
26. 42 United States Code, section 1395(e)(2).
27. 42 United States Code, section 1395cc(a)(1)(I), (b)(2).
28. 42 Code of Federal Regulations, section 1395dd(f). (Violation of EMTALA’s provisions theoretically can result in termination of the hospital’s Medicare provider agreement. Termination generally does not occur, however, as long as the hospital takes corrective action.)
29. Office of Inspector General, Department of Health and Human Services, The Emergency Medical Treatment and Active Labor Act: The Enforcement Process at 8. (2001).
30. St. Anthony Hosp. v. United States Dept. of Health & Human Servs., No. 00-9529 (10th Cir. August 28, 2002).
31. Burditt v. United States Dept. of Health & Human Servs., 934 F.2d 1362 (5th Cir. 1991).
32. 42 United States Code, section 1395dd(a).
33. 67 Federal Register at 31,477. (Erecting a sign that incorporates one of these terms might contribute to such a perception.)
34. 977 F.2d 872 (4th Cir. 1992).
35. Lopez-Soto v. Hawayek, 175 F.3d 170 (1st Cir. 1999) (arrival of newborn in operating room with condition requiring emergency treatment triggering EMTALA).
36. Miller v. Medical Ctr. of S.W. La., 22 F.3d 626 (5th Cir. 1994).
37. Johnson v. University of Chicago Hospitals, 982 F.2d 230 (7th Cir. 1992).
38. 42 Code of Federal Regulations section 498.24(b).
39. Arrington v. Wong, 237 F.3d 1066 (9th Cir. 2001).
40. Arrington v. Wong, 19 F.Supp.2d 1151 (D. HI, 1998).
41. 67 Federal Register at 31,506.
42. 67 Federal Register at 31,472.
43. 42 Code of Federal Regulations, section 413.65(a)(2).
44. 42 Code of Federal Regulations, section 413.65(g)(1).
45. 42 Code of Federal Regulations, section 489.24(i)(2)(i), (ii).
46. 67 Federal Register at 31,506.
47. 67 Federal Register at 31,479.
48. 67 Federal Register at 31,506.
49. 67 Federal Register at 31,474.
50. Reynolds v. Maine General Health, 218 F.3d 78 (1st Cir. 2000).
51. Marshall v. East Carroll Parish Hosp. Serv. Dist., 134 F.3d 319 (5th Cir. 1998).
52. Vickers v. Nash Gen. Hosp., Inc., 78 F.3d 139 (4th Cir. 1996).
53. Slabik v. Sorrentino, 891 F.Supp. 235 (E.D. PA 1995).
54. Smith v. James, 895 F.Supp. 875 (S.D. MS 1995).
55. Casey v. Amarillo Hosp. Dist., 947 S.W.2d 301 (TX App. 1997).
56. Brooks v. Maryland Gen. Hosp., Inc., 996 F.2d 708 (4th Cir. 1993).
57. Baber v. Hospital Corp. of America, 977 F.2d 872 (4th Cir. 1992).
58. Gerber v. Northwest Hosp. Ctr., Inc., 943 F.Supp. 571 (D. MD. 1996).
59. Repp v. Anadarko Mun. Hosp., 43 F.3d 519 (10th Cir. 1994).
60. Lane v. Calhoun-Liberty County Hosp. Ass’n., Inc., 846 F.Supp. 1543 (N.D. FL. 1994).
61. 42 Code of Federal Regulations section 482.55.
62. 42 Code of Federal Regulations section 489.24(a). Federal Register at 31,506.
63. Correa v. Hospital San Francisco, 69 F.3d 1184 (1st Cir. 1995).
64. 42 United States Code section 1395dd(b)(1).
65. 42 Code of Federal Regulations section 489.24(c)(1)(i).
66. 42 United States Code section 1395dd(b), (c).
67. 42 Code of Federal Regulations section 489.24(d)(1).
68. 42 United States Code section 1395dd(e)(1).
69. Bryant v. Redbud Community Hosp. Dist., 289 F.3d 1162 (9th Cir. 2002) (observing that "[e]very circuit to address this issue is in accord").
70. Urban v. King, 43 F.3d 523 (10th Cir. 1994).
71. Bohannon v. Durham County Hosp., 24 F.Supp.2d 527 (Middle District, NC, 1998).
72. Holcomb v. Humana Medical Corp., 831 F.Supp. 829 (Middle District, AL, 1993).
73. Abercrombie v. Osteopathic Hosp. Founders Ass’n, 950 F.2d 676 (10th Cir. 1991).
74. 67 Federal Register at 31,507.
75. Brooker v. Desert Hosp. Corp., 947 F.2d 412 (9th Cir. 1991).
76. Harry v. Marchant, 237 F.3d 1315 (11th Cir. 2001), reversed en banc, 291 F.3d 767 (11th Cir. 2002).
77. Thornton v. Southwest Detroit Hosp., 895 F.2d 1131 (6th Cir. 1990).
78. 42 Code of Federal Regulations section 489.24(d).
79. 67 Federal Register at 31,475.
80. 67 Federal Register at 31,507.
81. 67 Federal Register at 31,507.
82. 67 Federal Register at 31,475.
83. 67 Federal Register at 31,475.
84. 42 United States Code section 1395dd(c)(1)(A)(i).
85. 42 Code of Federal Regulations section 489.24(d)(1)(ii)(A).
86. 42 United States Code section 1395dd(c)(1).
87. 42 Code of Federal Regulations section 489.24(d)(1)(ii)(B).
88. 42 United States Code section 1395dd(c)(1)(A)(iii).
89. 42 Code of Federal Regulations section 489.24(d)(1)(ii)(C).
90. 42 United States Code section 1395dd(c)(1)(B).
91. 42 United States Code section 1395dd(c)(2).
92. Owens v. Nacogdoches County Hospital, 741 F.Supp. 1269 (EasternDist. TX, 1990).
93. Wey v. Evangelical Community Hosp., 833 F.Supp., 453 (Middle Dist. PA, 1993).
94. 42 Code of Federal Regulations section 489.24(e).
95. 42 United States Code section 1395dd(b)(2), (3).
96. 42 Code of Federal Regulations section 489.24(d)(2), (4).
97. 67 Federal Register at 31,507.
98. 42 United States Code section 1395dd(h).
99. 42 Code of Federal Regulations section 489.24(c)(3).
100. 67 Federal Register at 31,507.
101. 67 Federal Register 31,471.
102. 42 Code of Federal Regulations section 489.20(r).
103. Centers for Medicare and Medicaid Services, State Operations Manual, 2002:15.
104. 67 Federal Register, at 31,478.
105. 67 Federal Register at 31,507.
106. 42 Code of Federal Regulations section 489.20(q)(1).
107. 42 United States Code section 1395dd(d)(2)(B).
108. Delaney v. Cade, 986 F.2d 387 (10th Cir. 1993).
109. 42 United States Code section 1395dd(d)(1)(A), (B).
110. Helton v. Phelps County Reg’l Med. Ctr., 817 F.Supp. 789 (Eastern Dist. MO, 1993).
111. Ward v. Presbyterian Healthcare Servs., 72, F.Supp.2d 1285 (Dist. NM, 1999).
112. Diaz v. CCHC-Golden Glades, Ltd., 696 So.2d 1346 (FL Distr. Court of Appeals, 1997).
113. Barris v. County of Los Angeles, 972 P.2d 966 (CA, 1999). (EMTALA claims subject to California’s statutory damage cap.)
114. Jackson v. East Bay Hosp., 980 F.Supp. 1341 (Northern Dist. CA, 1997), affirmed 246 F.3d 1248 (9th Cir. 2001). (EMTALA claims not subject to California’s statutory damage cap.)
CME Objectives
After completing the program, participants will be able to:
- Understand and recognize the conditions/situations described and their importance to the practice of emergency medicine;
- Be educated about necessary diagnostic tests and how to take a meaningful patient history;
- Understand the role of risk management in the ED setting and the importance of those subjects both to physicians and patients;
- and provide patients with any necessary information.
Physician CME Questions
1. Under regulations proposed by CMS, which of the following locations would fall outside the scope of EMTALA?
A. A gift shop located within the main hospital building
B. An obstetrical unit
C. An ED waiting area
D. The sidewalk immediately outside of the ED entrance
2. Which of the following is an example of reverse dumping?
A. An inpatient unit transports an unstable patient downstairs to the ED.
B. A hospital refuses to accept a transfer because the patient lacks insurance.
C. A hospital transfers a patient to a rehabilitation facility unnecessarily.
D. A hospital refuses to accept a transfer because it lacks sufficient personnel.
3. Which of the following describes CMS’s view on stabilizing treatment?
A. The duty to stabilize ends with admission.
B. A duty to stabilize exists only when the patient later will be transferred.
C. The duty to stabilize continues even after the patient has been admitted.
D. The duty to stabilize ends only when the patient is discharged from an inpatient unit.
4. Which of the following best describes a screening examination?
A. An effort to determine whether an individual has an emergency medical condition
B. An effort to determine whether a patient has insurance coverage
C. An effort to determine whether a patient may be transferred safely
D. An effort to determine whether a patient requires admission
5. Which of the following constitutes a violation of EMTALA?
A. A hospital lacking surgical capability transfers a patient who has been shot in the chest.
B. A hospital admits a patient who may be discharged safely.
C. A hospital refuses to accept a transfer from a hospital in Canada.
D. A hospital transfers a patient to a specialized facility without explaining the reason.
6. Under EMTALA, when is a patient considered stable?
A. When the patient’s condition is unlikely to materially deteriorate
B. When the patient has been admitted to an inpatient unit
C. When the patient’s complaint has been alleviated completely
D. When the patient no longer requires constant observation
Recently, the Centers for Medicare and Medicaid Services proposed several changes to EMTALA that attempt to clarify hospital and physician duties. Undoubtedly, this new legislation will have an impact upon the care of emergency patients and the emergency physicians caring for them.
Subscribe Now for Access
You have reached your article limit for the month. We hope you found our articles both enjoyable and insightful. For information on new subscriptions, product trials, alternative billing arrangements or group and site discounts please call 800-688-2421. We look forward to having you as a long-term member of the Relias Media community.