A year later: EMTALA final rule clarifies obligations
By Mark M. Moy, MD, MJ, FAAFP, FACEP, Department of Emergency Medicine, Hinsdale (IL) Hospital; Clinical Assistant Professor, Department of Emergency Medicine, University of Chicago.
Editor’s note: During the past two decades, the meaning of the Emergency Medical Treatment and Active Labor Act (EMTALA) has been refined. In its earlier years, EMTALA initially was defined by court decisions that often were inconsistent with real clinical practice. Although there still are uncertainties with the application of EMTALA to specific clinical scenarios, refinements to the statute have clarified some of its ambiguities. The author discusses some of the recent refinements to EMTALA that help to clarify the statute’s meaning to hospitals and the practice of emergency medicine.
Introduction
In 1986, EMTALA was enacted as part of the Consolidated Omnibus Reconciliation Act of 1985 in response to concerns that some emergency departments (EDs) had been refusing to treat indigent or uninsured patients or inappropriately transferring them to other facilities, a practice known as "patient dumping." Since EMTALA’s inception, the U.S. government has struggled to interpret the law. Each successive governmental interpretation, in conjunction with numerous judicial rulings in the federal courts, seemed to expand the scope of EMTALA into areas not intended originally by Congress. The site of EMTALA coverage begins in the EDs; but subsequent rulings expanded coverage to the entire hospital including inpatients, then to surrounding grounds within 250 yards of the hospital, then to off-campus facilities, and (according to the U.S. Court of Appeals, 9th Circuit) even to nonhospital-owned ambulances simply moving toward the hospital.1 EMTALA originally governed only emergency physicians (EPs) but since has been expanded to include all specialists who take on-call duty for the hospital. Now every hospital (although they be community hospitals and not specialized referral tertiary care centers) and on-call specialist are required to accept transfers from any other hospital that lack such services.
The 2003 final rule by the Centers for Medicaid & Medicare Services (CMS), as well as recent judicial decisions, have brought some clarity to the EMTALA landscape. A year after the final rule was released, the mandates of EMTALA have become clearer, and there has been minimal controversy in this area. The final rule definitely has cleared the air on many of EMTALA’s nebulous issues. In CMS’ own words, "These reiterations and clarifying changes are needed to ensure uniform and consistent application of policy and to avoid any misunderstanding of EMTALA requirements by individuals, physicians, or hospital employees."2
Briefly, the final rule (effective Nov. 10, 2003) includes the following requirements:
• Dedicated Emergency Department: Hospitals must provide an appropriate medical screening examination to all persons who present themselves to an area of the hospital meeting the definition of a dedicated emergency department (whether on or off the hospital’s main campus), and who request, or have a request made on their behalf for examination or treatment of a medical condition.
A dedicated emergency department is defined as an entity that: 1) is licensed by the state as an emergency department; 2) holds itself out to the public as providing emergency care; or 3) during the preceding calendar year, provided at least one-third of its outpatient visits for the treatment of emergency medical conditions.
• Other On-Campus Locations: Persons (including visitors) presenting at an area on the hospital’s main campus other than a dedicated emergency department must receive a medical screening exam only if they request, or have a request made on their behalf for examination or treatment for what may be an emergency medical condition. Where there is no verbal request, a request will be considered to exist if a "prudent layperson" observer would conclude, based on the person’s appearance or behavior, that the person needed emergency examination or treatment.
However, hospitals have no EMTALA obligation toward an individual who has begun to receive services as part of a scheduled outpatient encounter and subsequently experience a medical emergency. Such individuals are protected by the Medicare Conditions of Participation (CoPs) for hospitals.
• Other Off-Campus Locations: If a request is made for emergency care in a hospital department off the hospital’s main campus other than a dedicated emergency department, EMTALA also does not apply. The off-campus facility should call the local emergency medical services (EMS) to take the individual to the closest emergency department (not necessarily in the hospital that operates the off-campus department) and should provide whatever assistance is within its capability. Thus, an off-campus location that is not a dedicated emergency department is not required to be staffed to handle emergency medical conditions. However, Medicare CoPs require such departments to have written policies and procedures for assessment of emergencies and referrals when appropriate.
• Inpatient Admissions: A hospital’s EMTALA obligation ends when an individual is admitted for inpatient services, although the patient may not have been stabilized. At that point, the patient is protected by the Medicare CoPs. (A patient is considered "admitted" for inpatient services when it is expected that he will remain in the hospital at least overnight).
• Hospital-Owned Ambulances: The final rule clarifies the responsibilities of hospital-owned ambulances to more fully integrate them with citywide and local emergency medical service (EMS) procedures for efficiently responding to medical emergencies. Previously, if an individual was in an ambulance owned and operated by a hospital, that hospital had an EMTALA obligation to provide a medical screening examination and possible stabilizing treatment to the individual. Under the final rule, if a hospital-owned ambulance transports a patient to a hospital other than its "parent" hospital pursuant to a communitywide EMS protocol, the hospital that owns the ambulance has no EMTALA obligation.
• On-Call Lists: Hospitals must maintain an on-call list of physicians available to see patients in a dedicated emergency department, in a manner that best meets the needs of the hospital’s patients, taking into account the services offered by the hospital and the on-call availability of specialty physicians. Although physicians are not required to take calls 24 hours a day, seven days a week, hospitals are expected to work with their medical staffs to develop an appropriate on-call schedule. Physicians may be on call simultaneously at more than one hospital, and may schedule elective surgery or other medical procedures during on-call times, as long as the hospital provides an appropriate backup plan. These provisions do not reflect any change in policy; they merely are intended to clarify the CMS’ approach to on-call requirements. The rule also clarifies that if a hospital does not have an appropriate specialist on call, it may transfer the patient to another facility if the medical benefits of such transfer outweigh the risks.
To address continuing difficulties with EMTALA applications, the Medicare Prescription Drug Improvement and Modernization Act of 2003 includes a provision to establish an EMTALA Technical Advisory Group for 2½ years, which will "review issues related to EMTALA and its implementation."3 The group comprises 19 members, including representatives from hospitals and peer review organizations, physicians, patients, EMTALA investigators, and state surveyors. The group will review EMTALA regulations, may provide advice and recommendations regarding regulations and their application, will solicit comments and recommendations from interested parties regarding the implementation of regulations, and may disseminate information on regulations.
Following are some recent key court cases that have helped define the mandates of EMTALA.
Case #1: Barris v. County of Los Angeles4
Issue: May a hospital contact a patient’s managed care company during treatment in the ED?
Answer: Yes, the final rule allows a hospital to contact the managed care company regarding the individual’s medical history and needs that may be relevant to the medical screening and treatment of the patient, as long as this consultation does not inappropriately delay services required by EMTALA. The CMS still prohibits a hospital from calling the managed care company for authorization to treat.
On May 6, 1993, at 5:30 p.m., Dawnelle Barris brought her 18-month-old daughter, Mychelle Williams, to the ED at Martin Luther King/Drew Medical Center by ambulance. Mychelle had vomiting, diarrhea, and lethargy with difficulty breathing. She had a temperature of 106.6ºF, tachypnea, and low oxygen saturation. Dr. Trach Dang, the emergency physician, examined Mychelle and believed that her condition was consistent with sepsis. However, Dr. Dang did not order tests or start treatment because he believed that he needed to obtain authorization from Kaiser Foundation Health Plan, the patient’s managed care company. Kaiser had developed a program called the Emergency Prospective Review Program to deal with situations where a Kaiser member is brought to a non-Kaiser facility for emergency care. The program’s purpose was to facilitate the transfer of such patients to a Kaiser facility. Dr. Dang contacted Dr. Brian Thompson, a Kaiser physician handling transfers that night. Dr. Dang discussed the case with Dr. Thompson and indicated that he thought blood tests were necessary. Dr. Thompson instructed him not to perform the tests, saying that the blood work would be done at Kaiser. Dr. Dang telephoned Dr. Thompson a second time, expressing concern about the delay in treatment. Again, Dr. Thompson instructed Dr. Dang not to perform any tests. At 8 p.m., Mychelle suffered a seizure and became more lethargic. Dr. Dang treated her symptoms of fever, dehydration, dyspnea, and seizure but did not administer antibiotics. Shortly after 9 p.m., Mychelle was transferred by ambulance to Kaiser. At 9:50 p.m., within 15 minutes of her arrival, Mychelle suffered a cardiac arrest and was pronounced dead shortly thereafter.
Ms. Barris filed suit alleging an EMTALA violation for failure to provide an appropriate medical screening as well as failure to stabilize the patient’s emergency medical condition before transferring to Kaiser. A jury found a violation of EMTALA for failing to stabilize Mychelle’s emergency medical condition before transfer and awarded $1.35 million to Ms. Barris against Los Angeles County (operator of the medical center), Kaiser Foundation Health Plan, and the two physicians.
Discussion
EMTALA absolutely forbids an emergency physician from calling any insurance company for authorization to treat a patient when EMTALA is applicable. The U.S. Department of Health and Human Services (HHS) mandated this requirement in a special advisory bulletin issued Nov. 10, 1999.5 The bulletin, issued jointly by the HHS Office of Inspector General (OIG) and the CMS, states emphatically:
Notwithstanding the terms of any managed care agreements between plans and hospitals, the anti-dumping statute continues to govern the obligations of hospitals to screen and provide stabilizing medical treatment to individuals who come to the hospital seeking emergency services regardless of the individual’s ability to pay. While managed care plans have a financial interest in controlling the kinds of services for which they will pay, and while they may have a legitimate interest in deterring their enrollees from overutilizing emergency services, no contract between a hospital and a managed care plan can excuse the hospital from its anti-dumping statute obligations. Once a managed care enrollee comes to a hospital that offers emergency services, the hospital must provide the services required under the anti-dumping statute without regard for the patient’s insurance status or any prior authorization requirement of such insurance.6
However, the final rule allows some leeway in contacting a patient’s managed care physician to discuss pertinent patient medical history and needs that may be relevant to the medical treatment of the patient. After the final rule was released, the CMS changed the Code of Federal Regulations at 489.24 (d)(4) to state: An emergency physician or nonphysician practitioner is not precluded from contacting the individual’s physician at any time to seek advice regarding the individual’s medical history and needs that may be relevant to the medical treatment and screening of the patient, as long as this consultation does not inappropriately delay services required under paragraph (a) or paragraphs (d)(1) and (d)(2) of this section.
For the Medical Screening Examination, the courts have agreed that uniformity is the measure of compliance with EMTALA and not accuracy of diagnosis. The courts are consistent in agreement that EMTALA was not meant to be a federal malpractice statute. However, once a diagnosis is made or suspected, the actions of the treating physician are measured by a reasonable physician standard, which effectively converts EMTALA into a federal malpractice statute for the purposes of stabilization. That is, once a physician makes a tentative diagnosis of an emergency medical condition, the standard of care for stabilization of that condition is based upon that of a reasonable physician under the same or similar circumstances. This is essentially the same measure of care as in any medical malpractice negligence statute. By not providing antibiotic coverage for Mychelle Barris, who he suspected had acute sepsis, Dr. Dang was found guilty of an EMTALA violation for failure to stabilize the patient prior to transfer. The court noted that although the EMTALA claim is not identical to a state medical malpractice claim, similar conduct must be shown. The court explained that an EMTALA plaintiff alleging failure to stabilize must prove that the hospital did not provide treatment to ensure that — within reasonable medical probability — no deterioration of the condition would occur. The court said "reasonable medical probability" is an objective standard "inextricably interwoven" with the professional standard for rendering care.
Case #2. Atteberry v. Longmont United Hospital 7
Issue: Are peer review files and quality assurance committee reports protected from discovery in an EMTALA lawsuit?
Answer: These files are not protected from discovery in a federal EMTALA lawsuit.
An ambulance brought Scott Atteberry to Longmont United Hospital’s ED after Scott was involved in a motorcycle accident. He was in hypovolemic shock from internal hemorrhages. After three hours of treatment in the ED, Dr. Leonard, the trauma surgeon, arranged transfer of Mr. Atteberry by helicopter to St. Anthony’s Hospital in Denver. Mr. Atteberry suffered cardiac arrest and died in the helicopter in route to St. Anthony’s Hospital. Ms. Atteberry, the patient’s mother, filed a lawsuit against Longmont United Hospital asserting that her son should not have been transferred out of the ED and that the transfer to St. Anthony’s Hospital violated EMTALA in that Dr. Leonard did not stabilize Scott before transfer and did not fill out any EMTALA transfer certification.
During the discovery phase of the suit, the plaintiff’s lawyers sought the release of all credentialing files, peer review files, and quality assurance committee reports pertaining to Mr. Atteberry’s medical care. Longmont Hospital objected to the production requests, asserting that the requested information is protected from discovery by law.
Discussion
EMTALA is a federal law, and therefore, federal laws provide the rules of discovery for EMTALA cases. Usually, negligence medical malpractice cases are adjudicated in state courts and therefore, are governed by state peer review privileges. Federal courts do not have to recognize state peer review protections.
Longmont Hospital objected to the production requests, asserting that the requested information is confidential and protected from discovery by: 1) the federal Health Care Quality and Assurance Act; 2) the Colorado state peer review privilege; and 3) the Colorado state quality management privilege, among other doctrines.
In Atteberry, the court reasoned that neither the United States Supreme Court nor the 10th Circuit Court of Appeals have recognized a medical peer review or medical risk management privilege under federal common law. The court also reasoned that Congress also did not create an analogous federal privilege when it enacted the federal Health Care Quality Improvement Act. The court cited the language in another case, noting "Congress spoke loudly with its silence in not including a privilege against discovery of peer review materials in the Health Care Quality Improvement Act." The court concluded, "Every legislative and controlling judicial indication is that federal policy, under these circumstances, opposed recognition of the quality management and peer review privileges enacted by the state of Colorado." The court ruled that the requested materials were all discoverable and ordered Longmont United Hospital to produce all documents requested.
Discovery in the federal courts is governed by the Federal Rules of Civil Procedure. There are no quality committee confidentiality protections for this federal law. Federal courts do not have to abide by state peer review confidentiality laws. State laws restricting discovery for medical peer review and quality management committees are not applicable in medical malpractice cases heard in federal courts. Even during the investigation phase when the CMS presents to the hospital for an EMTALA complaint, they also are entitled to view minutes from quality assurance committees. Hospitals and physicians would be wise to practice caution in what they say and document in their quality assurance committees when they review EMTALA type cases.
Case #3: Rodriguez v. Americal Int’l Ins. Co.8
Issue: Does EMTALA apply to outpatient clinics?
Answer: EMTALA does apply to clinics that meet the definition of a "dedicated emergency department."
On March 3, 2001, Joan Rodriguez bought her daughter to the Corozal Center for Diagnoses and Treatment (CDT). The child had vomited and was in respiratory distress. The family asserted that the initial evaluation performed on the child was inadequate and failed to comply with EMTALA requirements for an appropriate medical screening. They further asserted that it was the faulty screening that failed to detect the emergency condition of the child to properly stabilize and transfer her, resulting in her death.
The defendants (the Corozal Center for Diagnoses and Treatment) in the case filed a motion requesting summary judgment on the grounds that it is not an ED or a hospital within the meaning of EMTALA and that consequently, no cause of action under EMTALA can ensue against it. In Puerto Rico, unique health facilities known as "Centros de Diagnostico y Tratamiento" (CDTs) exist. A CDT is defined as an independent facility or one operated in conjunction with a hospital that provides community services for the diagnosis and treatment of ambulatory patients under the professional supervision of persons licensed to practice medicine, surgery, or dentistry in Puerto Rico. Because CDTs do not offer inpatient hospital services, the defendant alleged that it is not a hospital within the meaning of EMTALA. However, a particular part of the clinic in question had an emergency room that operated on a 24-hour basis and received patients without appointments. The court found that the case hinged not on the literal wording of EMTALA, but rather on the end result — that the services provided by CDTs are the types of services that EMTALA is geared to cover. The court reasoned that EMTALA is clear in the nature of the services to which it pertains: that of a facility that provides 24-hour services identical to the one in the case at bar. The court held that EMTALA applies to CDTs that render ED medical services on a 24-hour basis.
Discussion
In the final rule, the CMS defined a "dedicated emergency department" as:
Dedicated emergency department means any department or facility of the hospital, regardless of whether it is located on or off the main hospital campus that meets at least one of the following requirements:
1) It is licensed by the State in which it is located under applicable State law as an emergency room or emergency department;
2) It is held out to the public (by name, posted signs, advertising, or other means) as a place that provides care for emergency medical conditions on an urgent basis without requiring a previously scheduled appointment; or
3) During the calendar year immediately preceding the calendar year in which a determination under this section is being made, based on a representative sample of patient visits that occurred during that calendar year, it provides at least one-third of all of its outpatient visits for the treatment of emergency medical conditions on an urgent basis without requiring a previously scheduled appointment.9
If an outpatient clinic meets any of the three definitions for a dedicated ED, then it must abide by all of EMTALA’s mandates. Off-campus departments that do not meet these criteria are governed by the rules in the Medicare Conditions of Participation (CoPs), which require those departments to have written policies and procedures for appraisal of emergencies and referrals when appropriate.
The Code of Federal Regulations presently states:
(i) If the off-campus department is an urgent care center, primary care center, or other facility that is routinely staffed by physicians, RNs, or LPNs, these department personnel must be trained, and given appropriate protocols, for the handling of emergency cases. At least one individual on duty at the off-campus department during its regular hours of operation must be designated as a qualified medical person as described in paragraph (d) of this section. The qualified medical person must initiate screening of individuals who come to the off-campus department with a potential emergency medical condition, and may be able to complete the screening and provide any necessary stabilizing treatment at the off-campus department, or to arrange an appropriate transfer. (ii) If the off-campus department is a physical therapy, radiology, or other facility not routinely staffed with physicians, RNs, or LPNs, the department’s personnel must be given protocols that direct them to contact emergency personnel at the main hospital campus for direction. Under this direction, and in accordance with protocols established in advance by the hospital, the personnel at the off-campus department must describe patient appearance and report symptoms and, if appropriate, either arrange transportation of the individual to the main hospital campus in accordance with paragraph (i)(3)(i) of this section or assist in an appropriate transfer as described in paragraphs (i)(3)(ii) and (d)(2) of this section.10
Previous proposals by the CMS had ruled that all off-campus departments including physical therapy, radiology, or laboratory sites would have to comply with EMTALA’s requirements of medical screening examination, stabilization, and transfer as well as administrative requirements of signage, logs, on-call lists, etc.11 That ruling created significant administrative difficulties for hospitals. It is reasonable for EMTALA to apply specifically to off-campus departments, such as urgent care centers that function and operate like EDs. The CMS cautions that off-campus departments that do not meet its definition of a dedicated ED still must provide appropriate care for patients with emergency conditions (e.g., a patient presents for physical therapy and develops chest pains). It is important that hospitals draft and adopt written policies and procedures for off-campus departments regarding appraisal of emergencies and transfers when appropriate.
Case #4. Bryant v. Adventist Health System12
Issue: Do EMTALA’s obligations stop when a patient has been admitted to the hospital as an inpatient?
Answer: Yes, the case of Bryant v. Adventist Health System sets a precedence followed by the CMS in the final rule that ends EMTALA’s obligations once a patient is legitimately admitted to the hospital as an inpatient.
David was a 17-year-old boy who was severely disabled and had the mental capacity of a young child. He was unable to communicate with anyone other than close relatives. He had a history of asthma, bronchitis, and pneumonia. On the evening of Jan. 24, 1997, David, accompanied by his family, went to Redbud Community Hospital’s ED because he had been coughing up blood and had a fever. Dr. Robert Rosenthal, the EP, examined David and found that the patient had a cough with yellow phlegm, mild fever, and was wheezing. Dr. Rosenthal ordered a chest x-ray and blood tests. Dr. Rosenthal failed to notice a lung abscess on the chest x-ray. He treated David with an albuterol breathing treatment and attempted to administer rocephin. Because David was agitated, the medical staff could not administer the full dosage of rocephin. Nonetheless, Dr. Rosenthal determined that the nurse had injected a sufficient amount of the antibiotic. Because David’s condition appeared stable and because Dr. Rosenthal and David’s family agreed that David would be more relaxed at home, Dr. Rosenthal discharged him for home care. The next day, the hospital called David’s family and informed them that the radiologist had found the lung abscess on the chest x-ray. Dr. Richard Furtado admitted David to the hospital for care of this lung abscess. After a complicated hospital stay and surgery, the hospital released David home on Feb. 20. Although David appeared to be improving, he died suddenly and unexpectedly on March 1. The family filed a lawsuit against the Redbud Hospital, Dr. Rosenthal, and others for negligence as well as violation of EMTALA by failing to stabilize David’s lung abscess condition. The District Court for the Northern District of California granted summary judgment in favor of the hospital on the EMTALA claim. The family appealed to the 9th Circuit Court of Appeals.
The court addressed two questions on EMTALA violation. First, the plaintiffs argued that the hospital should be liable under EMTALA if its staff negligently fails to detect an emergency medical condition. Second, the plaintiffs argued that the hospital’s EMTALA liability continued during David’s inpatient hospital stay. On the first issue, the court held that EMTALA was not enacted to establish a federal medical malpractice cause of action or to establish a national standard of care. Although a claim of misdiagnosis may be relevant to a malpractice claim under state law, the court ruled that it was not relevant to an EMTALA claim. Accordingly, the circuit court affirmed the district court’s ruling that the hospital did not violate EMTALA’s stabilization requirement when it discharged David home in the early morning of Jan. 25. On the issue of whether the hospital would continue to be liable for EMTALA violations during David’s inpatient stay, the circuit court held that the stabilization requirement normally ends when a patient is admitted for inpatient care; it concluded that: "Congress passed EMTALA to address the failure of hospitals to provide emergency medical care to the uninsured and indigent. Congress did not intend for EMTALA to be a federal malpractice statute. Accordingly, a hospital cannot be held liable under EMTALA if it negligently fails to detect or if it misdiagnoses an emergency medical condition. Additionally, EMTALA generally ceases to apply once a hospital admits an individual for inpatient care, just as it ceased to apply here."
Discussion
Considering the Bryant case as precedent, the CMS stated in the 2003 final rule that EMTALA will not apply to inpatients.13 As stated in the 2003 final rule:
For inpatients, the CMS adopted in the Code of Federal Regulations at 489.24 (b) that:
Comes to the emergency department means, with respect to an individual who is not a patient . . .
The CMS further defines the term "patient" as: 1) An individual who has begun to receive outpatient services as part of an encounter, as defined in Sec. 410.2 of this chapter, other than an encounter that the hospital is obligated by this section to provide; 2) An individual who has been admitted as an inpatient, as defined in this section.
Finally, the definition of the term "inpatient" is: an individual who is admitted to a hospital for bed occupancy for purposes of receiving inpatient hospital services as described in Sec. 409.10(a) of this chapter with the expectation that he or she will remain at least overnight and occupy a bed even though the situation later develops that the individual can be discharged or transferred to another hospital and does not actually use a hospital bed overnight.14
For ED patients who are admitted to the hospital, the CMS amended the Code of Federal Regulations at 489.24 (d)(2) to state: (2) Exception: Application to inpatients. (i) if a hospital has screened an individual under paragraph (a) of this section and found the individual to have an emergency medical condition, and admits that individual as an inpatient in good faith in order to stabilize the emergency medical condition, the hospital has satisfied its special responsibilities under this section with respect to that individual.15
The CMS establishes in the final rule that EMTALA will not apply to patients routinely admitted to the hospital. Additionally, the CMS went further than its proposed rules from May 2002 by stating that EMTALA obligations end for an ED patient once the patient is admitted to the hospital. The 2002 proposed rule had stated that EMTALA still would be active for an ED patient admitted with an unstabilized emergency medical condition until that condition is stabilized. The final rule terminates EMTALA obligations once a patient is admitted to the hospital for further care regardless of the stability of the found emergency medical condition. Once admitted to the hospital, the CMS reasoned that EMTALA protection is no longer needed because a patient is then protected by state malpractice tort laws as well as the Medicare Condition of Participation rules (CoPs). The CMS may terminate the Medicare provider agreement with a hospital for violations of CoPs. The CMS cautions that the patient must be admitted in good faith for further necessary medical care. The CMS expects that the patient will be admitted at least overnight for further care. A hospital cannot admit a patient from the ED with an unstable condition only to immediately transfer him in an attempt to use this rule to circumvent EMTALA obligations.
Case #5. Magruder v. Jasper County Hospital16
Issue: Does a faulty medical screening examination that misses the correct diagnosis violate EMTALA?
Answer: No, a hospital fulfills its duty under EMTALA when it provides a uniform medical screening examination reasonably calculated to identify critical medical conditions that may be afflicting symptomatic patients and provides that level of screening uniformly to all those who present with substantially similar complaints.
On May 8, 2001, the Magruder family bought their son Jacob to the ED of Jasper County Hospital because he had developed redness and tenderness in the groin area. Dr. Kenneth Ahler, the ED physician, examined the patient and found a hard, fixed mass on the left side of his abdomen. Dr. Ahler diagnosed the child as having a left direct inguinal hernia. He also noted that there was no left testicle in the scrotum, but bowel sounds were present. Dr. Ahler attempted to manually reduce the hernia but was unsuccessful. He determined that the child was not in severe ischemic pain and did not have an acute ischemic testicle. He believed that the child’s testicle was involved in the hernia and advised the family the child needed surgery but not emergency surgery. He discussed the options of having the child admitted for surgical consult in the morning or going home and returning in the morning. The family elected to take Jacob home for the night. The next morning, despite surgery after transfer to Riley Children’s Hospital in Indianapolis, Jacob suffered the loss of his left testicle. The Magruders filed suit claiming that an inappropriate medical screening examination at Jasper County Hospital was an EMTALA violation.
Discussion
The court found that instances of negligence in the screening or diagnostic process, or of mere faulty screening of patients, are not violations of EMTALA. However, if an examination is so cursory that it is not designed to identify acute and severe symptoms that alert the physician to the need for immediate medical attention to prevent serious bodily injury, EMTALA is violated. The court found that Dr. Ahler’s examination of the child’s groin and assessment of his pain could be considered appropriate and that he had reasonably calculated within the capabilities of the hospital to detect the presence of an emergency medical condition as required by EMTALA. The court found no evidence that Dr. Ahler failed to perform an appropriate and adequate medical screening. Furthermore, the court found no evidence that the screening provided to Jacob was applied differently to the child than to similar patients with similar conditions. Whether Dr. Ahler was correct in his diagnosis may be appropriate in the context of medical malpractice, but it is not relevant for purposes of EMTALA litigation. The court stated, "It was clearly not the intent of Congress to create a broad prong new national species of medical malpractice, which would supersede the state law remedies in that regard. In this case, there is no showing that the essential values embedded in EMTALA have been violated here." The court granted summary judgment in favor of the defense.
The courts are consistent in ruling that because EMTALA is not a malpractice law, a medical screening examination can be appropriate as long as it is uniform. Misdiagnoses should be judged in state malpractice courts under negligence rules.
The CMS State Operations Manual states: The clinical outcome of an individual’s condition is not a proper basis for determining whether an appropriate screening was provided or whether a person transferred was stabilized. However, it may be a "red flag" indicating a more thorough investigation is needed. Do not make decisions based on clinical information that was not available at the time of stabilization or transfer. If a misdiagnosis occurred, but the hospital utilized all of its resources, a violation of the screening requirement did not occur.17
EMTALA does not require a correct diagnosis to measure up to a comparable standard of care. Under EMTALA, an individual cannot sue a hospital for poor services; rather the person can sue only if he is treated differently than other patients. Courts have noted that an "uneasy intersection" exists between state law medical negligence claims and EMTALA claims. Under EMTALA, a hospital can escape liability by complying with its pre-existing standards, even if the practical effect is an inadequate examination. The statute merely requires that a hospital perform an appropriate screening examination for an emergency medical condition, but does not provide a remedy for an inadequate or inaccurate diagnosis.18 EMTALA does not hold hospitals accountable for failing to stabilize conditions of which they were not aware or even those conditions for which they should have been aware. If it later becomes evident that the hospital missed an emergency medical condition, hindsight alone cannot be used to determine that fact and impose liability under EMTALA.
Case #6: St. Anthony Hosp. v. U.S. Dep’t of HHS 19
Issue: Does EMTALA impose an obligation on community hospitals to accept unstable patient transfers if the hospital has the capacity and capability to treat the patient?
Answer: Yes, EMTALA obligates a community hospital to accept unstable EMTALA transfers if it possesses the capability and capacity.
A 65-year-old male was involved in an automobile accident on a highway outside of Oklahoma City on Apr. 8, 1995. At 4:50 p.m., he was taken to the ED at Shawnee Regional Hospital, a small hospital about 35 miles outside of Oklahoma City. Dr. Kent Thomas initially treated the patient and endorsed care to Dr. Carl Spengler at 7 p.m. It was determined that the patient had fractures of his spine and ribs, but more importantly had paralysis of his legs. Shawnee Hospital did not have the resources to treat such a major trauma, therefore, Dr. Spengler arranged ground transfer to University Hospital. However, after being boarded onto an ambulance, the patient developed mental confusion, hypotension, and cyanosis of his lower extremities. Dr. Spengler determined that the patient had a serious aortic injury that required immediate surgery. Dr. Spengler returned the patient into the ED and continued stabilization treatments. Due to the critical nature of the patient, Dr. Spengler arranged air ambulance transport to University Hospital. The Medi-Flight helicopter arrived at Shawnee, but University Hospital called Dr. Spengler and informed him that all operating suites were occupied with present surgery; they could not accommodate the transfer. Dr. Spengler made a series of phone calls attempting to find a hospital with a vascular surgeon who could provide the surgery. Dr. Spengler eventually spoke with Dr. Scott Lucas, the on-call thoracic-vascular surgeon at St. Anthony Hospital, an Oklahoma City community hospital with specialized surgical facilities. Dr. Lucas refused Dr. Sprengler’s request for transfer to St. Anthony Hospital. Ultimately, the patient was transferred to Presbyterian Hospital in Oklahoma City, where aortography revealed that he had suffered traumatic occlusion of the abdominal aorta. The patient was taken immediately to surgery for revascularization of his lower extremities. The patient’s condition deteriorated during the next several days, and following bilateral above-knee amputations, he died.
In May 1998, the Office of the Inspector General notified St. Anthony that it sought to impose a $50,000 civil monetary penalty against it based "on a determination that St. Anthony Hospital failed to accept the appropriate transfer of the patient on Saturday, April 8, 1995." In June 2000, the Departmental Appeals Board of the HHS upheld the imposition of the civil monetary penalty against St. Anthony Hospital for violation of EMTALA’s reverse-dumping provisions. Reverse dumping occurs when a hospital refuses to accept an appropriate transfer of an unstable patient requiring its specialized services. St. Anthony filed an appeal to the U.S. Court of Appeals, 10th Circuit, which denied the appeal.
Discussion
Traditionally, the medical profession sees transfers for specialized care as mainly to tertiary care teaching hospitals with specialized facilities, such as trauma centers, burn units, spinal units. However, many community hospitals now possess many of the specialty care capabilities that teaching hospitals previously provided exclusively. The ruling in St. Anthony imposes a duty upon every hospital with special services to accept the transfer of patients with an unstable emergency medical condition from any other hospital that lacks such services. Specialists, such as neurosurgeons who had previously been on call only for their own hospitals now are effectively on-call for all area hospitals that seek to transfer unstable patients to them. EMTALA does not even force hospitals to seek transfer to tertiary centers first. A simple telephone call for transfer triggers the EMTALA obligation for the receiving hospital. Community hospitals, which until now did not see themselves as referral centers, now become de facto referral centers that cannot refuse a call for transfer of an EMTALA patient.
Case #7. Millard v. Corrado20
Issue: Do on-call physicians have a legal responsibility to patients in the ED although they never directly treat the patient?
Answer: Yes, on-call physicians can be liable if they are negligent in their duty to provide on-call coverage.
Dr. Joseph Corrado is a general surgeon with active staff privileges at Audrain Medical Center (AMC) in Mexico, MO. On Nov. 5, 1994, he was preparing to attend a meeting of the Missouri chapter of the American College of Surgeons 30 miles away. Several days earlier, Dr. Corrado had filled out the surgeon on-call schedule for November. Al-though he was aware of the upcoming meeting, Dr. Corrado scheduled himself as on-call for that day, presumably because the other two general surgeons on AMC’s staff would be on vacation that day.
Before leaving AMC for his meeting, Dr. Corrado asked Dr. Ben Jolly if he would cover for his calls during the four-hour period he would be out of town. Dr. Jolly agreed, although he was an orthopedic surgeon and did not have privileges to perform general surgery. Dr. Corrado then left the hospital to attend the meeting without notifying anyone at AMC that he would be out of town and therefore, unable to provide an immediate on-call response.
Later that morning, 65-year-old Marjorie Millard was involved in an automobile accident in Callaway County, MO. Mrs. Millard suffered serious trauma, including broken ribs, a ruptured diaphragm, and injuries to her renal vein, renal artery, and her adrenal artery. Mrs. Millard’s injuries produced internal bleeding, resulting in hypovolemic shock. Emergency medical technicians (EMTs) could not detect a measurable blood pressure or radial pulse.
The EMTs elected to transport Mrs. Millard to AMC based on its proximity to the accident and on the belief that AMC operated a 24-hour ED with a general surgeon on-call to handle surgical trauma patients. The ambulance left the accident scene at 10:49 a.m. The EMTs radioed AMC’s ED that they would be arriving with a Class 1 patient — a patient in a critical or life-threatening condition. AMC did not respond to that message. The ambulance arrived at AMC at 11:07 a.m., where the staff initiated stabilizing care. At 11:45 a.m., the EMT paged Dr. Corrado as the general surgeon on-call, but the page went unanswered. Nine minutes later, Dr. Steve Taylor, the ED physician, examined Mrs. Millard and diagnosed intra-abdominal bleeding. Dr. Corrado was paged a second time at 12:55 p.m., and again, he did not respond. At approximately 12 p.m., AMC attempted to arrange for air transport of Mrs. Millard to the University of Missouri Medical Center, but it soon was learned that the EMS helicopter was grounded due to inclement weather. At 12:08 p.m., Dr. Thomas Welsh and Dr. Jolly entered the ED at AMC after completing their rounds. Dr. Welsh and Dr. Jolly evaluated Mrs. Millard and concurred with the diagnosis of internal bleeding, however neither one had privileges to perform general trauma surgery. At 12:23 p.m., Dr. Corrado called the ED in response to the pages. After discussion with Dr. Welsh, it was determined that due to the extent and nature of the patient’s injury, Mrs. Millard would be best served by transfer to the University of Missouri Medical Center. AMC transferred Mrs. Millard there by ground transport, arriving at 1:45 p.m; Mrs. Millard underwent surgery for resection of her left kidney, gallbladder, colon, and part of her small intestine.
Discussion
Mrs. Millard filed a suit against Dr. Corrado alleging that as a direct and proximate result of the delay in treatment, she suffered aggravation of her injuries. Dr. Corrado filed a Motion for Summary Judgment in which he argued that he was entitled to judgment as a matter of law because plaintiffs failed to establish a physician-patient relationship, a necessary component of a medical negligence claim. The trial court granted the motion and entered judgment in favor of Dr. Corrado. On appeal, the plaintiffs contended that the trial court erred because a genuine issue of material fact exists as to whether a physician-patient relationship was created because of Dr. Corrado’s status as the on-call general surgeon.
In its analysis, the Missouri Court of Appeals considered and applied public policy issues as well as foreseeability of harm. The court concluded that public policy interests require that Dr. Corrado owed a duty of care to Mrs. Millard. In 1996, the Missouri General Assembly had passed a regulation requiring on-call physicians to arrive at the hospital within 30 minutes. The court believed that that regulation evidences a social consensus to ensure that on-call physicians attend to their patients within a reasonable time. The court reasoned that a mere phone call notifying the ED of his unavailability would have saved valuable time in the treatment of Mrs. Millard. Dr. Corrado’s failure to notify the hospital staff of his unavailability created a false security that a general surgeon would be available to treat emergency patients who required a general surgeon within a reasonable time at AMC. The court also concluded that if the harm were particularly foreseeable, a duty would be recognized. The court held that the risk of harm to which Mrs. Millard was exposed due to Dr. Corrado’s failure to notify AMC of his unavailability was reasonably foreseeable. When Dr. Corrado decided to attend the American College of Surgeons’ meeting, he knew AMC would have no general surgeon on-call during his absence. Dr. Corrado’s attempt to delegate his on-call responsibilities to Dr. Jolly, an orthopedist, was conclusively ineffective. Under those circumstances, the court concluded that it is apparent a reasonably prudent person should have foreseen that such conduct would create a substantial risk of harm to ED patients such as Mrs. Millard. The court held that the public policy of Missouri and the foreseeability of harm to patients in the position like Mrs. Millard’s support the recognition of a duty flowing from Dr. Corrado to Mrs. Millard. The appellate court held that the trial court erred in entering summary judgment in favor of Dr. Corrado. The summary judgment was reversed, and the case was remanded for a new trial.
In the 2003 final rule, the CMS stated that: 1) Each hospital must maintain an on-call list of physicians on its medical staff in a manner that best meets the needs of the hospital’s patients who are receiving services required under this section in accordance with the resources available to the hospital, including the availability of on-call physicians. 2) The hospital must have written policies and procedures in place — (i) To respond to situations in which a particular specialty is not available or the on-call physician cannot respond because of circumstances beyond the physician’s control; and (ii) To provide that emergency services are available to meet the needs of patients with emergency medical conditions if it elects to permit on-call physicians to schedule elective surgery during the time that they are on call or to permit on-call physicians to have simultaneous on-call duties.21
The CMS emphasizes that EMTALA provides penalties for physicians who negligently violate their on-call requirements. The CMS also emphasizes that hospitals have a responsibility to penalize any physician who negligently fulfills his on-call duties.
EMTALA mandates a paradigm shift in how on-call physicians must view their duties to provide care when called on for a medical emergency. Traditionally, staff physicians viewed their on-call duties for the ED as a voluntary favor to the hospital in return for the privilege for being a member of the medical staff. The on-call duties were usually flexible regarding how the care was provided (e.g., response time), method of providing care, and location of care. It was generally up to the on-call physician in his or her opinion as a specialist to decide how the care should be provided. Neither the hospital nor the government mandated any specific guidelines on how this care was to be provided. There were no legal risks to being on-call other than malpractice suits arising from direct patient care, as with any other patient. That system worked well in the majority of hospitals for many years. However, EMTALA’s mandates, as well as court cases such as Millard, heightens on-call physicians responsibilities and duties. Physicians must not take their on-call duties lightly.
Endnotes
1. See, Arrington v. Wong, 19 F. Supp. 2d 1151 (D. Hawaii 1998), rev’d, 237 F.3d 1066 9th Cir. (Jan. 22, 2001).
2. 68 Fed Reg 53,222 (Sept. 9, 2003).
3. Medicare Prescription Drug Improvement and Modernization Act of 2003 (P.L. 108-173) Sec. 945.
4. Barris v. County of Los Angeles,83 Cal.Rptr. 2d 145 Cal. (March 25, 1999).
5. OIG/HCFA Special Advisory Bulletin on the Patient Anti-Dumping Statute, 64 Fed Reg 61,353 (Nov. 10, 1999).
6. 64 Fed Reg 61,356.
7 Atteberry v. Longmont United Hosp., 221 F.R.D. 644 D.Colo., (Jun 15, 2004) [NO. CIV.A.03-D-488(BNB)].
8. Rodriguez v. American Intern. Ins. Co. of Puerto Rico, 263 F.Supp.2d 297, D.Puerto Rico (May 12, 2003) [NO. CIV. 02-1810(JP)].
9. Supra note 2, at 53,263.
10. 42 C.F.R. 489.24 (i)(2).
11. See: 42 C.F.R. 489.24 (h) (i).
12. Bryant v. Adventist Health System, 229 F.3d 1162, 9th Cir. (May 20, 2002).
13. Id.
14. Supra note 2, at 53,263.
15. Id.
16. Magruder ex rel. Magruder v. Jasper County Hosp., 243 F.Supp.2d 886, N.D.Ind. (Jan. 30, 2003).
17. U.S. Dept. Health and Human Services Medicare Medicaid State Operations Manual, Appendix V, Interpretive Guidelines for Responsibilities of Medicare Participating Hospitals in Emergency Cases, Tag A406, V-20.
18. See, Phillips v. Hillcrest Medical Center, 244 F.3d 790 at 798, 10th Cir. (March 26, 2001).
19. St. Anthony Hosp. v. U.S. Dept. of Health and Human Services, 309 F.3d 680 (10th Cir., Aug 28, 2002) (NO. 00-9529)
20. Millard v. Corrado, No. ED7542, Mo.Ct.App. (Dec. 14, 1999).
21. Supra note 2, at 53,264.
In its earlier years, the Emergency Medical Treatment and Active Labor Act (EMTALA) was defined by court decisions that often were inconsistent with real clinical practice. Although there still are uncertainties with the application of EMTALA to specific clinical scenarios, refinements to the statute have clarified some of its ambiguities. The author discusses some of the recent refinements to EMTALA that help to clarify the statutes meaning to hospitals and the practice of emergency medicine.
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