EPs at an academic teaching hospital recently received a call asking them to accept a critically ill patient with a post-surgical infection — from a sending hospital 169 miles away.
“Clearly, [the patient] had a chronic problem that other surgeons closer to her local home area have taken care of before,” says Steven Frick, MD, who accepted the patient.
The EP from the referring hospital said he did not have the expertise or access to the appropriate consultants to care for the patient. He added that he had called two other facilities, which both refused the patient. Ultimately, the patient was transported by helicopter.
“We had no pre-existing relationship with this patient at all, who had an extraordinarily medically complex problem,” says Frick, chair of the department of orthopaedic surgery at Stanford Medicine. After a complicated course that included multiple surgeries and 61 days in the ICU, the patient did not survive.
At a previous institution, Frick received a similar call about a patient with a finger amputation. The EP from the referring hospital also had contacted many other trauma centers to no avail. Frick accepted the patient. “But the patient ended up not being a candidate for a re-implantation,” he recalls. “Surgeons just sewed the finger up, and the patient went back home.”
Some traumatic amputations are not good candidates for re-implant because so much of the marginal tissue is damaged. “Re-implantation has become one of those super-specialized areas. Even fewer large medical centers are offering it as a service,” notes Todd B. Taylor, MD, FACEP, a Phoenix-based EMTALA compliance consultant.
There would be no EMTALA obligations if the sending hospital was requesting services that were not medically indicated, according to Taylor. He recommends that EDs create a list of less common conditions that they cannot treat and identify several resources for each one so staff know prospectively where to send such patients when that rare occurrence happens. “The worst time to try to figure that out is in the middle of the night, with a patient’s welfare hanging in the balance,” Taylor says.
Frick has been taking trauma calls for two decades. Each time he’s received a call from an outside physician requesting that the facility take a patient who needs a higher level of care and has an emergency medical condition, he has complied with his obligation under EMTALA. “We are obligated to accept the patient, unless there is some circumstance that prevents the hospital from doing so,” Frick says.
For instance, hospitals are not required to take a patient who is on diversion for trauma. But in Frick’s experience, this has happened only once or twice in 20 years. “Is it family-centered care to take a critically ill patient 150 miles away from home?” Frick asks. “Sometimes, it’s what we are forced to do.”
Although 150 miles may seem like a long distance, Taylor says that rural-to-urban transfers over long distances are not so unusual. “There’s a lot of rural communities in medical no man’s land,” Taylor observes.
At a Level I trauma center and pediatric referral hospital in Phoenix, Taylor often accepted transfers from all parts of the state. “ED docs in most hospitals in America are single coverage, with a limited panel of on-call specialists — some an hour or more away,” Taylor adds.
There are some situations in which hospitals violate EMTALA, or the standard of care, by making unreasonable transfer arrangements that result in untoward outcomes. “Sending patients long distances for no good reason may be one of them,” Taylor offers.
A transferring hospital may be liable for a bad outcome if it elects to transfer a patient to a facility 100 miles away, says Timothy C. Gutwald, JD, an attorney at Grand Rapids, MI-based Miller Johnson. A transfer is only appropriate if the benefits of the transfer outweigh the risks. “A judge or jury may determine the transfer was not appropriate if a bad outcome occurs, particularly if there were other facilities that were closer and willing to accept the transfer,” Gutwald says.
Potential liability exposure for the transferring hospital makes it important to document that the closer hospitals rejected the transfer and why the benefits of transferring the patient to a particular hospital outweigh the risks. In some cases, a patient requests a transfer to a particular hospital, even though another hospital is closer. The transferring hospital should ask the patient to sign a consent to the transfer. “Carefully document that the patient was informed of the risks of the transfer,” Gutwald says.
There are some important considerations regarding EMTALA obligations and patient transfers:
• EMTALA does not require patients to be transferred to the nearest facility. “It’s just common sense to do that,” says Sue Dill Calloway, RN, MSN, JD, a Dublin-OH based nurse attorney and president of Patient Safety and Healthcare Consulting and Education.
Some trauma centers say they will accept the patient, but only after the referring facility has tried closer facilities first. “What they are doing is saying, ‘There’s another hospital 50 miles closer to you that has the same services. Try them, and if they don’t accept the patient, then call us back, and we will take the patient,’” Calloway says.
Taylor notes that the referring facility may respond with: “Thanks for that suggestion, but I already considered closer hospitals and believe clinically your facility is the most appropriate for this patient. I am just trying to do what I think is best for my patient.”
If the receiving hospital offers specialized capabilities not available at the transferring hospital, the receiving hospital cannot refuse the transfer or tell the transferring hospital to try closer facilities first, Gutwald says.
ED providers can alert hospital risk managers so they can follow up to find out what happened from the sending hospital’s perspective. “We did this routinely. More than half the time, it was discovered the transfer was legitimate,” Taylor reports. “Often, it is just a misunderstanding on either or both sides.”
• Not all ED transfers fall under EMTALA. The policy applies only to transfers from one Medicare hospital ED to a different hospital, and for a patient with an “unstable” emergency medical condition. The EMTALA definition of unstable may differ from a clinician’s interpretation, Taylor notes.
“In other words, it is a legal definition, not a medical definition,” Taylor says. Thus, someone with a chronic problem, even if he or she is seen in the ED, may not meet the EMTALA definition of “unstable.”
• Hospitals may not have capability to accept the patient. Some hospitals that refuse to accept patients may be violating EMTALA. But there is another possible explanation: The hospital may legitimately not have the ability to care for the patient they are asked to accept.
“Due to various changes in our healthcare system, capabilities and capacity of hospitals have changed drastically in the past few years,” Taylor observes.
EMTALA is clear: Hospitals must accept the patient — unless they do not have the capability or capacity to treat the patient. “It does not even matter if the sending hospital is violating EMTALA,” Taylor adds.
In some cases, the referring hospital actually can treat the patient, but may be trying to “dump” the patient on another facility. The referring hospital may be violating EMTALA. “But this does not alleviate the receiving hospital’s EMTALA responsibility to accept the patient,” Taylor cautions.
- Zhou JY, Amanatullah DF, Frick SL. EMTALA (Emergency Medical Treatment and Active Labor Act) obligations: A case report and review of the literature. J Bone Joint Surg Am 2019;101:e55.