[Editor’s Note: This column is part of an ongoing series that will address reader questions about the Emergency Medical Treatment and Labor Act (EMTALA). If you have a question you’d like answered, contact Staci Kusterbeck, Editor, ED Management, 280 Nassau Road, Huntington, NY 11743. Telephone: (631) 425-9760. Fax: (631) 271-1603. E-mail: StaciKusterbeck@aol.com.]

Question: If a rural hospital wants to refer a patient to a larger center, who can accept the physician on behalf of the hospital if the specialist physician refuses?

Answer: The first question is whether the rural hospital has the capability of caring for the patient, according to Mary Kay Boyle, RN, JD, risk manager at North Penn Hospital in Lansdale, PA. "If they do, the larger hospital is not obligated to accept the patient," she says. If the rural hospital does not have the capability and the larger hospital does, then the larger hospital is required under EMTALA to accept the patient, says Boyle. "Transfers may best be accomplished through the ED physician," she adds. The problem arises when the specialist then refuses to care for the patient, says Boyle. "This is when hospital administration comes in," she adds. "The hospital must compel the physician to accept care of the patient."

The rural hospital should document the acceptance of the patient carefully, cautions Gloria Frank, JD, former lead enforcement official on EMTALA for the Centers for Medicaid and Medicare Services (CMS) and owner of EMTALA Solutions, an Ellicott City, MD-based consulting firm. Frank presents the following variation on the above question: Suppose that a large hospital repeatedly uses nonphysicians to accept patients from a rural hospital. However, the individual designated to accept patients doesn’t realize that there is actually no room for the patient in question.

The question is: If the rural hospital is aware that its patients are ending up at the larger hospital, but eventually leaving because there’s really no room, then is the rural hospital violating EMTALA by failing to secure acceptance of the patient by the other hospital? "I think it’s a failure to fulfill the requirement, because the rural hospital is on notice," says Frank.

Question: Recently, another ED wanted to send a 30-year-old female to the ED for a medical examination with evidence collection that is performed whenever a patient claims that he or she was sexually assaulted. The sending ED stated that this female already had been deemed suicidal and homicidal and was going to be admitted to their inpatient psychiatric unit. Is a patient who is deemed unstable from a psychiatric standpoint able to give full informed consent for a forensics/pelvic examination? Or should this patient first be evaluated by a psychiatrist to determine if she is capable of giving full informed consent?

Answer: Yes, the patient may give or withhold consent for the examination, and a psychiatrist is not necessary to determine whether a patient can give informed consent, according to Jonathan D. Lawrence, MD, JD, an ED physician and medical staff risk management liaison at St. Mary Medical Center in Long Beach, CA. "Patients who are being held involuntarily for mental health reasons do not give up their rights to accept or refuse medical treatment," he says. "If the patient in this case consents to the exam, it may be done. If she refuses, then it shouldn’t."

He notes that there is no medical reason to do the exam. "Treatment that might benefit the patient would include STD and pregnancy prophylaxis," says Lawrence. "For these treatments, the patient must provide consent." He adds that if she is unable to understand the nature of the proposed treatment or the consequences of refusing, a judge may order the treatment after an appropriate hearing. "Only in emergency cases could treatment be given against the will of an incompetent patient," he says. Under EMTALA, a psychiatric patient is considered stable if they have been chemically or physically restrained so that no further harm could reasonably come to the patient or others, adds Lawrence.

Question: If the physician’s assistant either admits or discharges the patient, is this legal? The on-call physician may be consulted by phone by the physician’s assistant. And is it an EMTALA violation for the "not on call doc" to send his physician’s assistant to the ED when a private patient presents?

Answer: There is an EMTALA aspect and medical staff aspect to this question, says Lawrence. "As for EMTALA, it is unclear as to whether the physician’s assistant is doing the screening exam or is coming in after the screening exam already has been performed by the ED physician," he says. "If the hospital regulations allow for a physician’s assistant to do a screening examination, then it is legal."

Regarding the medical staff issues, if state law and hospital bylaws permit the activities in question, then they are legal, says Lawrence. "State law, supplemented by hospital bylaws, govern the scope of practice of physician assistants," he explains.


For more information about EMTALA, contact:

Mary Kay Boyle, RN, JD, North Penn Hospital, 100 Medical Campus Drive, Lansdale, PA 19446. Telephone: (215) 361-4591. Fax (215) 412-5002. E-mail: MBoyle@nph.org.

Gloria Frank, JD, EMTALA Solutions, P.O. Box 1340, Ellicott City, MD 21041. Telephone: (800) 972-7916. Fax: (410) 480-9116. E-mail: emtala@home.com. Web: www.gloriafrank.com.

Jonathan D. Lawrence, MD, JD, Emergency Department, St. Mary Medical Center, 1050 Linden Ave., Long Beach, CA 90813. Telephone: (562) 491-9090. E-mail: jlawrens@home.com.