EXECUTIVE SUMMARY

The ED registration process can result in litigation against the hospital due to lack of compliance with EMTALA, or, on the other hand, out-of-pocket expenses the patient alleges were avoidable.

  • Patients often are surprised by large medical bills due to activation of trauma protocols.
  • On-call specialists may be out of the patient’s insurance network.
  • Registrars must be EMTALA-compliant when asking about insurance or ability to pay.

A combination of laws, economics, and insurance trends leads to an increase in patient complaints — and sometimes lawsuits — relating to ED and trauma care, says Robert J. Milligan, JD, an attorney at Milligan Lawless in Phoenix.

“Most insurers refuse to pay a premium to specialist physicians who are willing to provide call coverage for EDs,” Milligan notes.

The physicians who provide this coverage are required to take all comers, many of whom don’t have insurance.

If specialists who are called in to see a patient are out of network with the patient’s insurer, it leaves the patient with little or no coverage. This results in an unpleasant surprise when the patient receives a bill for out-of-pocket responsibility.

“Often, physicians refuse to contract with insurers that pay the same rates for elective office services and for services provided at midnight on Christmas Eve,” Milligan explains.

Insurance Not Discussed

The hospital could face legal liability if staff inquire about insurance or ability to pay in a way that is prohibited under the Emergency Medical Treatment and Labor Act (EMTALA), Milligan warns.

This limits the ability of patient access to ask about a patient’s insurance status. Also, trauma patients often are in no condition to discuss insurance, regardless of EMTALA limitations.

“As a result, there typically is no discussion about insurance or whether the specialist on call is contracted with the patient’s insurer — until after the specialist provides the necessary care,” Milligan says.

Since patients typically pay a larger share of their healthcare bills for treatment received by an out-of-network provider, this often results in surprised and unhappy patients.

“Some of these patients simply refuse to pay the bills; others make complaints to the relevant licensing agencies, and others air their grievances with the media,” Milligan says.

It’s possible that meaningful discussions between insurers, hospitals, and specialists might lead to an improvement in this situation, Milligan offers.

“I am not aware of any situations in which those discussions have led to a solution, however,” he adds.

Out-of-Pocket Costs

Keith C. Volpi, JD, an attorney at Polsinelli in Kansas City, MO, has defended several lawsuits regarding the activation of a hospital trauma protocol.

“This decision most commonly is forced when a first responder calls the hospital to report that an ambulance is en route with a patient with particular injuries,” Volpi says.

Patients often find out that they are responsible for large medical bills. “The patients are upset that the trauma protocol was ‘unnecessarily’ activated,” Volpi explains.

Volpi also has defended the other side: A patient was critically injured in a car accident, and the trauma protocol was not activated. When the patient arrived, he had to wait for critical services and personnel to mobilize, and he claimed that his injuries worsened as a result. “Medical negligence was the allegation, which provided the patient the same opportunity for recovery as in any other medical negligence action,” Volpi says.

Volpi notes it’s important that the policy or algorithm dictating the decision of whether to activate the trauma protocol is clear and understood by all who may be called to use it.

“Additionally, it is important that individuals with clinical expertise, as opposed to clerical personnel, are responsible for making all decisions that could possibly be viewed as clinical,” Volpi says.

This includes the decision of whether to activate the trauma protocol. “It also includes something as simple as discussing what brings a patient into the ED,” Volpi adds.

Registrars must be careful to not become involved in any such clinical decisions.

“An administrative person making clinical decisions is low-hanging fruit for any good plaintiffs’ attorney,” Volpi warns.

SOURCES

  • Robert J. Milligan, JD, Milligan Lawless, Phoenix. Phone: (602) 792-3501. Fax: (602) 792-3525. Email: Bob@milliganlawless.com.
  • Keith C. Volpi, JD, Polsinelli, Kansas City, MO. Phone: (816) 395-0663. Fax: (816) 817-0210. Email: kvolpi@polsinelli.com.