EDs Still Tagged with EMTALA Violations
July 1, 2016
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The Emergency Medical Treatment and Labor Act (EMTALA) became law four decades ago — but a surprising number of hospitals still face investigations and, in some cases, costly fines.
From 2002 to 2015, the Centers for Medicare & Medicaid Services (CMS) conducted 6,035 investigations of EMTALA complaints against hospitals and physicians — an average of 431 a year, according to a recent study.1
Robert A. Bitterman, MD, JD, FACEP, says most EMTALA violations occur because hospitals simply aren’t acting in ways that are in the best interest of their patients.
“They are usually doing something outside of their normal processes,” he explains. “That’s the same reason hospitals have always gotten in trouble — they’re doing things outside the norm.”
Bitterman, an emergency physician (EP) and attorney who advises hospitals facing EMTALA investigations, has seen these scenarios trigger complaints to CMS:
- A nurse running out to the ambulance bay to tell EMS the hospital doesn’t take trauma cases;
- An individual found in the hospital parking lot who is known to be a difficult patient isn’t brought in to be checked as the hospital would other patients;
- An on-call physician who refuses to come in;
- Hospitals that don’t accept a transfer patient because the transferring hospital is outside state lines, or because the hospital frequently sends uninsured patients on a Friday night;
- ED providers who don’t examine a patient brought from a prison thoroughly enough before transferring the patient back to prison.
Bitterman says the key to avoiding trouble with EMTALA is “taking care of everybody the same way, with no shortcuts.” If all chronic pain patients are treated the same — as opposed to one receiving a cursory medical screening exam and another receiving a complete neurological exam — problems are less likely to occur. To trigger an EMTALA investigation, someone has to complain, Bitterman says.
“CMS or the state survey agency don’t come in and do investigations on an ad hoc basis,” he notes.
Mary C. Malone, JD, a partner in the Richmond, VA-based healthcare law firm of Hancock, Daniel, Johnson & Nagle, says the best thing EDs can do is work on patient satisfaction.
“Satisfied patients rarely complain,” she says. “But there is no satisfying some people, and also no way to keep them from complaining to CMS.”
However, plaintiff attorneys trigger some investigations.
“There is a whole host of reasons why plaintiff attorneys want to use EMTALA instead of an ordinary negligence claim,” Bitterman says.
An EMTALA claim may allow the attorney to sidestep state expert witness requirements. It also may enable the attorney to get into federal court to avoid certain state peer review protections that don’t apply in federal court proceedings. Under EMTALA, only hospitals, not physicians, can be sued.
“So everything the physician does with respect to EMTALA — the hospital is directly liable for that,” Bitterman explains. “The plaintiff attorney can blame the hospital for the doctor’s actions, rather than sue the EP personally.”
Malone says plaintiff attorneys often allege EMTALA violations to get information through discovery by obtaining the CMS 2567 via a Freedom of Information Act request.
EMTALA violations don’t necessarily constitute malpractice, Malone emphasizes. The fact an EP misdiagnosed a patient doesn’t necessarily mean the EP did not perform an appropriate medical screening exam — and vice versa.
“However, the same set of facts might be ripe for both a malpractice claim and a civil EMTALA suit,” Malone says, noting many recent violations involve the failure to provide an appropriate medical screening exam as well as inappropriate transfers.
“One of the issues is related to the chaotic nature of a busy ED and the consequent failure to ‘cross Ts and dot Is’ with respect to following policies and doing a complete job of documenting what happened during the patient encounter,” she says.
Malone sees a marked increase in the number of EMTALA violations involving behavioral health patients. Bitterman notes, “EMTALA considers psychiatric patients as a protected class, so they do heightened scrutiny on those cases.”
Many aspects of EMTALA requirements relating to psychiatric patients remain unclear. Controversy exists about how to screen, who can screen, where EDs can screen, when the patient is considered stable under EMTALA, and when patients can be transferred from a private hospital to a public hospital.
“All these psychiatric issues are up in the air, and there is an enormous amount of disagreement,” Bitterman adds. “It’s caused hospitals a great deal of grief in dealing with psychiatric patients.”
For instance, CMS says in the regulatory language that hospitals should consider severe pain, psychiatric disturbances, or symptoms of substance abuse to be emergency medical conditions. This conflicts with what the EMTALA statute says.
“What CMS forgets is that the rest of the statutory language requires that those symptoms must be such that in the absence of immediate medical attention, serious bad things will happen,” Bitterman says.2
Therefore, he says, substance abuse, severe pain, or psychiatric disturbances do not necessarily constitute emergency medical conditions.
“What they are is symptoms,” Bitterman explains. “Just like any other symptoms, they need to be medically screened to determine if they are, or are manifestations of, an emergency medical condition.”
This misinterpretation, he adds, “drives hospitals and physicians crazy, and disseminates wholly inappropriate interpretations of the law. It is unquestionably legally incorrect. But instead of challenging it, hospitals are running scared.”
Many hospitals revised their policies to include this language, which could complicate the defense of a subsequent malpractice lawsuit.
“If your EMTALA policies create higher expectations than what is required by the law, the hospital will be held to those higher expectations created by hospital policy,” Malone warns.
This opens the door for a plaintiff attorney to argue that, according to the hospital’s own policy, any patient with severe pain, psychiatric disturbance, or substance abuse has an emergency medical condition and the hospital has a duty to stabilize it.
“Once you put this stuff into your policies, that’s the standard to which you will be held,” Bitterman stresses, adding that hospitals should be very careful about writing their policies so they don’t box themselves in. “Hospitals get themselves into trouble by writing policies and not complying with them, particularly with screening exams. Hospitals should put together reasonable policies and procedures, and do it the same way every time.”
Here are pitfalls Malone often sees that trigger EMTALA investigations:
- Directing a patient already on hospital property to another ED (i.e., when the hospital is on diversionary status) without any medical screening exam.
“Once that patient is on hospital property and in need of emergency medical care, EMTALA is triggered regardless of diversion,” Malone says.
- Inappropriate delegation of the medical screening examination requirement to persons who are not physicians or otherwise designated as Qualified Medical Personnel.
“This seems to happen pretty frequently with behavioral health patients,” Malone says. These patients often are screened for psychiatric issues (and treatment decisions) by community health resources who are not Qualified Medical Personnel and are not even employed by the hospital.
- Failure of on-call specialists to assist in screening or the provision of stabilizing treatment when requested by the EP.
“Those call failures generally require that the patient be transferred to another facility, and for the sending hospital to indicate on the transfer form that the patient was transferred based on the failure of the call physician to respond,” Malone says. The receiving hospital then is required by law to report the sending hospital to CMS for an inappropriate transfer, thereby triggering an investigation.
- Failure to provide stabilizing services.
“Oftentimes, neither the ED physician nor on-call specialists realize that the on-call physicians are on call for the full scope of their medical staff privileges,” Malone explains.
She gives the example of a patient who needs an endoscopy to be stabilized, when there is no gastrointestinal coverage. In this scenario, if the general surgeon on call has endoscopy privileges, the failure to call on the general surgeon can result in a violation for the hospital’s failure to provide necessary stabilizing services that are within its capabilities.
- Inappropriate refusal of transfers.
If a hospital has the capability and capacity to accept a requested transfer of an unstable patient, it must do so. Malone has seen violations tied to refusal of the on-call specialist to be available to treat the transfer patient, and for the hospital’s failure to accept for unacceptable reasons.
“This ‘reverse dumping’ seems to occur most frequently in connection with transfer requests for behavioral health patients,” Malone says.
- Zuabi N, Weiss LD, Langdorf MI. Emergency Medical Treatment and Labor Act (EMTALA) 2002-15: Review of Office of Inspector General Patient Dumping. West J Emerg Med 2016;17:245-251.
- 42 USC 1395dd(e)(1).
Experts say consistency prevents problems.
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