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Have you ever heard the question, “What would you do if an ED patient behaved in an unruly manner?” If an investigator from CMS asked one of your ED’s security guards this question, would the response reveal non-compliance with federal law?
During a recent investigation at the University of Maryland Medical Center (UMMC) in Baltimore, a security guard told surveyors that he would escort the patient from the premises or call the police if the patient did not leave.1 This revealed that the hospital allowed non-clinical personnel to determine which patients could enter the ED for evaluation of an emergency medical condition.
This recent CMS investigation was triggered by a widely publicized video showing security leaving a patient dressed only in a hospital gown and socks in cold temperatures at a bus stop.2 The incident underscores that if an ED patient is discharged improperly, “a hospital would be exposed to significant and varied legal risks,” says Timothy C. Gutwald, JD, a healthcare attorney in the Grand Rapids, MI, office of Miller Johnson. These include, but are not limited to:
CMS investigators found multiple deficiencies related to the incident. The hospital erected barriers to patients receiving emergency care, failed to discharge a patient in a safe manner, failed to protect a patient’s right to be free from all forms of abuse or harassment, and violated the patient’s right to receive care in a safe setting. Since staff also failed to record that the patient returned to the ED within several hours, no new medical screening examination was performed as required by the Emergency Medical Treatment and Labor Act (EMTALA). The hospital implemented a corrective action plan in response to the violations, according to the report.
Gutwald warns that there can be significant malpractice implications if patients are not stable at discharge. “EMTALA violations can lead to civil lawsuits, as well as civil monetary penalties.” Even if patients are medically stable, hospitals could still face liability if the patient is discharged into an unsafe environment.
Documentation becomes very important. “ED staff will want to document they offered to provide the patient warmer clothes; [provide] cab or bus fare; to call a family member; or arrange for a bed at a local shelter,” Gutwald says.
Case managers, social workers, and mental health providers likely will need to be involved in any situation in which a patient refuses discharge. On the other hand, UMMC was cited for privacy violations because it allegedly provided clinical information to non-clinical personnel. “Hospitals need to be careful to ensure individuals involved in the discharge are only given information they need,” Gutwald cautions.
If the patient is moved outside without a proper discharge plan, then the hospital may be in violation of the Medicare Conditions of Participation related to safe discharge planning, says Mary C. Malone, JD, a partner at Hancock Daniel in Richmond, VA.
“In addition to those risk exposures, if that patient has not received a sufficient medical screening examination to determine whether or not an emergency medical condition exists, EMTALA may be violated,” Malone warns. The same is true if the patient is identified with an emergency medical condition and is forcibly removed from the hospital prior to either stabilizing the emergency medical condition and/or arranging transfer of the patient to another facility for stabilizing treatment.
If security inappropriately held a patient during discharge or physically forced the patient’s removal, the patient may have a claim for assault. “To prevail in this type of claim, the patient would need to prove that there was unwanted and unconsented physical contact,” Malone explains. Recently, a New York hospital was sued after security guards allegedly assaulted a psychiatric patient who was attempting to leave.3,4
The exact elements of assault vary from state to state, and such lawsuits are relatively rare. “Broadly speaking, a plaintiff must show reasonable fear of an immediate harmful or offensive contact,” Gutwald notes.
The discharge of a patient who needs either emergency medical care or non-emergency follow-up care, without a plan to obtain that care, is unlikely to meet the relevant community standard of care, Malone predicts.
While EMTALA is not a malpractice statute, the same set of facts may give rise to both EMTALA violations and malpractice liability. “The regulatory concerns are not dependent on any negligence analysis,” Malone notes. With a patient-dumping case, “a number of legal theories could be likely advanced to assert liability and claim damages,” says Stephen A. Frew, JD, vice president of risk consulting at Johnson Insurance Services and a Rockford, IL-based attorney.
Medical abandonment is one example. This refers to the unilateral termination of medical care without adequate notice to the patient to allow them to obtain alternative care. Frew says others might include:
“Worse than malpractice, healthcare providers could literally go to jail if circumstances such as this resulted in harm or death of a patient,” Frew cautions.
It’s easy to focus on the hospital security guards as the obvious “bad guys” when a patient is removed forcibly. “But in my experience with most security personnel, someone else gave the order,” Frew notes. The treating physician, an angry nurse manager, or a hospital administrator may have told the security person to take the patient out of the ED.
“It might even have been a discharge planner,” Frew adds. “Regardless, there is more than enough legal responsibility to pass liability on to everyone involved.”
In a similar court case in which Frew was involved, it was the hospital that was the defendant. The case was brought under EMTALA. To prevail in such a claim, the plaintiff does not have to prove malpractice or any of the other theories of liability. The plaintiff only has to prove that the hospital, via its policies or personnel, violated EMTALA, resulting in an injury.
“The plaintiff’s lawyer has the option of picking which theory of liability to pursue, or to pursue several or all of them at the same time,” Frew says.
Each theory of liability requires different elements of proof, as well as different advantages or disadvantages. “An EMTALA case offers the lawyer the option of federal or state court and lots of different violations to allege in this situation,” Frew explains. Sometimes, state patient abuse laws offer triple damages and attorney’s fees, which greatly increase the size of a potential verdict.
“If the plaintiff were to simply sue the security guard for the event, the elements at trial would depend on the state definition,” Frew says.
For instance, in Illinois, assault means unlawfully placing a person in reasonable fear of receiving a physical injury or physical contact of an insulting or provoking nature. In that state, actually causing unlawful physical injury or contact of an insulting or provoking nature would constitute battery. “Different states combine the terms or define them differently,” Frew notes. In any state, though, physically removing the patient against his or her will from an area of relative safety to an area of exposure and risk, and then abandoning the patient, probably would constitute assault and battery theories of liability. “Physical contact with the wheelchair as an extension of the body would probably be sufficient for battery,” Frew adds.
Security personnel may be sued for their actions in containing or removing patients and non-patients from the hospital. But the hospital, as the “deep pocket,” typically is the primary defendant. “Everyone else is named as defendants to make sure all the necessary parties are in the case,” Frew explains.
Why does “patient dumping” continue three decades after EMTALA became law, despite multiple highly publicized cases? “It used to surprise me that EMTALA violations continued to occur. But I have come to expect it, for many reasons,” Frew offers.
One issue is that EMTALA attaches legal significance to commonly used medical terms such as “transfer,” “stabilize,” and “emergency medical condition.”
“Healthcare personnel interpret the law with their medical vocabulary, and get a different message than the law requires,” Frew explains.
Persistent miscommunication on this front requires more than one training session, or even annual training sessions, to overcome. Adding to the problem is the fact that CMS does not make citations readily available to the healthcare community. These real-life examples would shed light on what the enforcement standards actually require. “This would shock many providers into awareness,” Frew says.
Most ED providers use what they consider common sense practices. They’re surprised to learn that, under EMTALA, the standard is literal compliance. “They expect a standard of quality improvement, while CMS applies zero tolerance,” Frew explains.
Staff turnover is another confounding factor. “Those ED personnel who were around for the last CMS EMTALA enforcement visit and learned the lessons at that time are now at some other facility,” Frew says. Many ED positions are vacant, and heavy workloads soon cause lessons on regulatory requirements to be forgotten.
Increasingly, EMTALA violations stem from the difficulties posed by treating patients with mental health and substance abuse issues. “This is particularly true of patients who frequently return to the ED or return soon after being discharged,” Gutwald says.
It is not always easy to determine when someone with a mental health condition has been stabilized. “What may seem like drug-seeking behavior on one visit can easily turn into an emergency medical condition,” Gutwald notes. Lack of mental health resources also contributes to EMTALA violations. “Under these circumstances, healthcare staffs do the best they can,” Frew says. EDs are forced to deal with unstable and fragile patients for extended periods in overcrowded conditions, and without adequate or trained mental health staffing.
“Regulatory compliance tends to get overlooked — until CMS shows up with an EMTALA complaint survey,” Frew says.
Financial Disclosure: The following individuals disclose that they have no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study: Arthur R. Derse, MD, JD, FACEP (Physician Editor), Kay Ball, PhD, RN, CNOR, FAAN (Nurse Planner), Stacey Kusterbeck (Author), Jonathan Springston (Editor), Jesse Saffron (Editor), and Terrey L. Hatcher (Editorial Group Manager).