On-call physicians pose a potential EMTALA risk

Two of a risk manager’s constant worries can become one major problem if you don’t set up your on-call program correctly, cautions an attorney who has seen hospitals run afoul of the Emergency Medical Treatment and Labor Act (EMTALA) because doctors refused to come to the hospital when called.

The problem is that physicians have the right to refuse unless you carefully structure your program to eliminate that risk.

Risk managers have long struggled with the pitfalls of EMTALA, and it’s not uncommon to find that physicians won’t respond when they are on call. Put those two together and you could have a serious EMTALA violation, according to Lowell Brown, JD, a partner with the law firm of Foley and Lardner in Los Angeles. Under EMTALA, hospitals have the obligation to ensure that the physician arrives to care for the patient. But the same law gives the doctor the right to say no.

The statute provides that a hospital must have an on-call panel representing the specialties available on the medical staff to treat patients who come to the emergency department. EMTALA has always saddled the hospital with more responsibility than the physician, but changes recently proposed by the Centers for Medicare & Medicaid Services (CMS) will only worsen the risk for hospitals, Brown says. The changes were intended to address persistent questions about whether calls should be mandatory or voluntary, but Brown fears they will only reaffirm the doctors’ idea that they can refuse calls.

CMS is pushing for a change that would includes the statement that "physicians, including specialists and subspecialists, are not required to be on call at all times." The change also would state "the hospital must have written policies and procedures in place to respond to situations in which a particular specialist is not available or the on-call physician cannot respond because of circumstances beyond the physician’s control."

Hospital left with most, but not all, risk

Those additions to EMTALA probably would be welcomed by physicians but they will make the situation worse for hospitals, he says. They will reinforce the physicians’ idea that they can turn down calls without extraordinary reasons.

"The law is written in a strange way from the perspective of public policy and getting things done," he says. "The onus is placed on the hospital to make sure call coverage is provided, and hospitals with a Medicare provider agreement are required to have call panels. This is probably one of the biggest problems facing hospitals now. I see it all over the country."

But most hospitals have no actual control over physicians, who are members of the medical staff with privileges though they’re not employees of the hospital. When push comes to shove, most hospitals can’t force the physician to take a call.

"EMTALA is all about the hospital. The physician can decide whether to take calls or not and the EMTALA violation is going to be on the hospital," Brown says. "That’s the bedrock of the problem. They doctor can say no, I don’t want to come in, and they know the hospital will be left holding the bag."

The only way to counter that dilemma is by effectively removing the physician’s ability to refuse calls, usually through explicit requirements in the medical staff bylaws. Many hospitals don’t have that protection in place, Brown says, and the results can be terrible if you get caught in an EMTALA violation. By then, it’s too late to put the safeguards in place.

Medical staff can get around bylaws

Medical staff membership and privileges are the only leverage a hospital has over physicians, Brown says, but simply enacting a rule requiring physicians to take calls isn’t enough. That’s because in most health care organizations the medical staff pretty much governs itself.

"So you could have hospital bylaws saying you have to take calls, but then that will be subjected to political pressures until the medical staff changes it to say calls mandatory only if you’re an active’ staff member. And active’ staff member will mean the doctor makes a certain number of contacts at the hospital per year," Brown says. "The next thing you know, they will cut their contacts down to get under that threshold and work more at the hospital across town where calls aren’t mandatory."

Risk managers must do something to correct the problem because the hospital is the one at risk, Brown says.

"They are the deep pocket," he says. "The EMTALA law says the patient can sue the hospital if he’s injured by an EMTALA violation. It says nothing about suing the doctor."

Physicians can be subject to a $50,000 fine and exclusion from Medicare if the violation is flagrant or repeated, but Brown says that is difficult to prove in most cases. Unless the physician is already working at the hospital and just refuses to treat a patient for no good reason, the EMTALA violation can be hard to prove. When a physician is at home or otherwise away, it’s much easier to claim that he or she couldn’t come to the hospital — or at least make it sound plausible enough to avoid the EMTALA fine.

Remind physicians about their EMTALA risk

So is the situation hopeless for risk managers? Not quite. Brown says a health care risk manager is most definitely at a disadvantage with this problem, but that’s no reason to just give up. He recommends a few strategies:

  • Educate physicians about their risk from an EMTALA violation. While most of the risk lies with the hospital, physicians don’t get off scot free when EMTALA is violated. The $50,000 fine might be difficult to pin on physicians, but you don’t have to tell them that. You can emphasize to them that a $50,000 fine is possible, that it would fall entire on their shoulders, and that their insurance probably won’t cover it.
  • Remind doctors that their name is attached to a call refusal and EMTALA violation. "If you have to refuse a patient and transfer him or her, the hospital is required by law to send with the patient the name and address of the call panelist who didn’t show up," Brown says. "Make sure they know this and you can even have your staff remind them on the phone when they refuse to come in. People have a harder time refusing the call if they know their name and address will be right there with the patient’s chart that shows why they shouldn’t have been transferred."
  • When possible, write medical staff bylaws in a way that requires on-call service. "Medical staff bylaws should require that if you’re an active member of the medical staff, you must be available for call service," Brown says. "If it’s not in there already, you’re going to have a hard time getting it in, in any substantive, effective form, unless the physicians are feeling generous."

If the bylaws are not yet written in the most desirable way, look for every opportunity to improve them. If you must negotiate with physicians over other terms, keep the on-call requirements in mind as something you always want to improve.

  • If your bylaws already are strict about requiring on-call service, never change them. The Joint Commission requires that medical staff bylaws be set up so that they cannot be altered without agreement between the medical staff and the hospital. Once you have bylaws that make it difficult for physicians to refuse calls, consider those bylaws a tremendous asset and never consider weakening them in that regard. No matter what else you might consider negotiable, the terms for on-call service are off-limits if they already are strict.

"Resist any effort to make call service voluntary," Brown says. "Resist it very strongly."

  • Be reasonable and compromise on other points to maintain good relations with physicians. Because the physicians ultimately have control over whether they will accept calls, it is to your advantage to maintain a good relationship between the hospital and the medical staff. When the hospital and the physicians start to fight over every detail of their relationship, on-call requirements are one of the first targets. Before you know it, the physicians can water down the requirements or interpret them loosely enough to pose EMTALA risks.

"If you get to the point that you’re making demands and they’re making demands for exorbitant pay for on-call service, it’s a no-win situation," Brown says. "Everyone loses. The hospital has the bigger risk, so it has the bigger motivation to avoid that situation."

And don’t get overzealous about placing physicians on call. CMS leaves significant discretion for hospitals to devise call schedules that are not overly burdensome to physicians, so Brown says you should try to minimize — without threatening patient safety — how many physicians are on call and how much any one physician is put on call.