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LWBS patients: Tremendous risk potential for ED staff
Many EDs lack records, documentation, or statistics
by Stacey Kusterbeck, Contributing Editor
The number of ED patients who leave without being seen (LWBS) has increased from 1.1 million in 1995 to 2.1 million in 2002, and also, vulnerable populations such as younger, Hispanic, and uninsured patients are at higher risk, says a new study.1
"Although our study did not examine the root causes of LWBS, it is likely that LWBS is linked to the larger national problem of ED overcrowding," says Benjamin C. Sun, MD, the study's lead author and assistant professor of medicine at University of California-Los Angeles. "There is much research on this topic, but major contributors to ED crowding include lack of inpatient bed capacity and increasing volume and complexity of ED visits."2,3
Several studies suggest that a significant percentage of LWBS patients have acute illness and require urgent medical evaluation or hospitalization, Sun notes.4,5 "Many institutions use the ED LWBS rate as a quality metric," he says.
Since LWBS rates are strongly related to wait times, reducing the number of inpatient 'boarders' in the ED, increasing staff, and creating 'fast track' services also may reduce LWBS rates," says Sun.
From a legal perspective, LWBS patients are one of the "high risk" patient groups in the ED, says Stephen A. Frew, JD, vice president and risk consultant with Johnson Insurance Services, a Madison, WI-based company specializing in risk management for health care professionals. "These are patients who can potentially leave the facility, suffer adverse outcomes, and seek to blame it on the hospital or nursing staff for 'constructive abandonment' or some other theory," he says.
Since the patient left without completing assessment and care, the hospital often lacks even basic records and data to defend such a case, notes Frew.
In addition to fines and penalties issued by Centers for Medicare & Medicaid (CMS), it is not uncommon for plaintiffs in medical professional liability claims to allege violations of the Emergency Medical Treatment and Labor Act (EMTALA), says Christy Tosh Crider, a health care attorney at the Nashville, TN, office of Baker, Donelson, Bearman, Caldwell & Berkowitz. "Although patients cannot sue physicians for EMTALA violations, evidence of these violations can inflame jurors in professional liability cases against physicians and hospitals," says Crider.
Before EMTALA was enacted in 1986, many states did not recognize any hospital liability for patients who left voluntarily without receiving treatment. "EMTALA created a cause of action that might support these claims," says Frew.
Under the current EMTALA law, and many state laws that followed EMTALA, a patient may still leave before being treated without creating liability, but the standards for hospital duties have been increased. Frequently, the LWBS patient is the source of CMS citations for EMTALA violations, and for cases with serious adverse outcomes, EMTALA lawsuits may result, says Frew.
On November 10, 1999, a Special Advisory Bulletin from CMS and the Department of Health and Human Services' Office of the Inspector General clarified the EMTALA obligation for an individual who leaves without notifying the hospital. According to the bulletin, staff should document the fact that the person had been there, document what time the hospital discovered that the patient left, and retain all triage notes and additional records, if any.
The CMS standards require that if the hospital or its employees are aware that the patient intends to leave, a written refusal of services must be obtained from the patient. The refusal must list the dangers of leaving without completion of medical assessment and care and the benefits of staying.
"If the patient refuses to sign the form, the hospital must document the reasonable efforts it made to obtain the refusal," says Frew. One of the common errors that ED staff make, however, is to simply take the verbal statement that the patient is leaving and move on to the next patient.
Don't discard records
ED staff often fail to log the LWBS patient, discard the triage sheet or other records that were started, and fail to record any details of the statements made upon the patient's departure. "These common errors set the hospital up for multiple EMTALA violations if CMS becomes aware of the visit and investigates," Frew warns.
For scenarios like this, EDs have been cited for failure to log, "financial" issues such as the patient's perception that they are waiting for insurance approval or belonging to the "wrong" plan, failure to obtain a written refusal, failure to maintain medical records on the patient, and failure to triage the patient in a reasonable time. In some cases, EDs have been cited for "constructive" denial of a medical screening examination (MSE), which means that the patient was left without assessment and care for so long that it was the practical equivalent of denying care.
Although CMS does not have fixed guidelines for wait times, investigators will expect that the patient in the waiting area was reassessed periodically at a frequency appropriate to their presenting complaint or condition, and that these reassessments were documented in the record.
"Citation thresholds in cases I have dealt with range from an incident of a delay in triage for seven minutes with a patient who cannot breathe, to citations where patients with minor conditions have waited for 13 hours before giving up and leaving," says Frew.
In most citations, elapsed times before the patient leaves typically are within the first hour if there has been no triage, and over two hours after triage, says Frew. "In reality, I seldom see reassessments documented in ED records, leaving most of these LWBS cases as prime risks for EMTALA citations," he says.
Very few EDs have systems in place to obtain written refusals from LWBS patients or document the incident, and staff often seem surprised to learn that there are regulations for LWBS situations, adds Frew.
Frew says that LWBS situations become EMTALA investigations and possibly lawsuits when:
"With over 2 million reported LWBS patients per year in 2002, I would personally estimate that the unreported LWBS rate is at least that large as well," says Frew. "This amounts to 4 million opportunities for EMTALA violations on the LWBS issue alone." He estimates that at least 25% of those cases could be cited by CMS for clear violations of EMTALA requirements if they were reviewed. "That is a tremendous risk potential," says Frew.
In addition, many EDs don't have reliable figures on their LWBS rates or the timeframes involved. "Many hospitals I visit cannot provide data on their LWBS rate," says Frew. "Those that can seem to have widely different LWBS rates that do not necessarily correlate to ED size, hospital capabilities, or number of patients presenting."
To ensure EMTALA compliance for LWBS patients, your ED should have policies and procedures in place for the following, says Frew:
In addition to these EMTALA compliance requirements, LWBS cases should be automatic quality review triggers. They should be evaluated within 24 hours by ED managers, looking for all the required documentation, with up-to-date tracking and trending done. "Documentation errors should be addressed promptly. Trends should be addressed as soon as they become evident," says Frew.
However, the conditions of overcrowding that cause the LWBS situations also tend to prevent real-time quality reviews, notes Frew. "LWBS then tend to be viewed almost as a blessing—one less patient to see," he says. "Nothing is done to address the situation until a catastrophic outcome or EMTALA citation shocks the department back to reality."
Your ED can avoid liability if it is documented that the LWBS patient was logged in, triaged, and that the MSE was not delayed within the capability of the staff, says Danielle Trostorff, shareholder in the health care department of the New Orleans office of Baker, Donelson, Bearman, Caldwell & Berkowitz. The delay must be related to the priority of cases treated within the ED and not on the basis of any discrimination such as diagnosis, financial status, race, color, nationality, or handicap. "The delay must not be part of a routine practice of the hospital to discourage patient treatment without justification," she says.
According to the CMS Interpretative Guidelines, if an individual leaves the ED against medical advice, or leaves without being treated of his or her own free will, with no coercion or suggestion, the hospital is not in violation of EMTALA.
If the patient notifies staff of their intention to leave before receiving an appropriate MSE, your ED should document its intention to provide the patient an MSE. Also document attempts made to provide the individual with an informed consent of the risks of refusing a medical screening and appropriate treatment, if necessary.
When investigating a LWBS case, CMS will look for an informed refusal of examination and treatment form, signed by either the patient or a person acting on the patient's behalf, or documentation stating that the patient refused to sign the form.
The investigator, or a court in the case of a private action, also will look for documentation that the hospital staff attempted to explain the risks of refusing treatment. "The ED physician must adequately document the risks of refusing treatment, to the extent he or she had an opportunity to speak with the individual," says Trostorff.
Remember that the ED is literally the front door to the hospital, says Frew. "The two most likely patients to walk out of your ED due to delay are the paying patient and the irate patient," he says. "Both of these patients can hurt the hospital by their departure."
1. Sun BC, Binstadt ES, Pelletier A, et al. Characteristics and temporal trends of "left before being seen" visits in US emergency departments, 1995-2002. J Emerg Med 2007;32:211-215.
2. Rowe BH, Channan P, Bullard M, et al. Characteristics of patients who leave emergency departments without being seen. Acad Emerg Med 2006;13:848-852.
3. Hobbs D, Kunzman SC, Tandberg D, et al. Hospital factors associated with emergency center patients leaving without being seen. Am J Emerg Med 2000;18:767-772.
4. Baker DW, Stevens CD, Brook RH. Patients who leave a public hospital emergency department without being seen by a physician: Causes and consequences. JAMA 1991;266:1085-1090.
5. Kyriacou DN, Ricketts V, Dyne PL, et al. A 5-year time study analysis of emergency department patient care efficiency. Ann Emerg Med 1999;34:326-335.
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