About one in six Emergency Medical Treatment and Labor Act (EMTALA) settlements involve obstetric (OB) emergencies, according to a recent analysis.1
Sophie Terp, MD, the study’s lead author, notes that there have been controversies about EMTALA’s scope, but there can be no doubt this law applies to active labor; the word “labor” is right there in the title.
Terp and colleagues previously reviewed data on EMTALA-related civil monetary penalties for individual physicians and for psychiatric emergencies.2,3 “My colleagues and I noted a number of interesting themes among cases related to labor and other obstetrical emergencies, and decided to evaluate these penalties systematically,” says Terp, an assistant professor of clinical emergency medicine at the University of Southern California in Los Angeles.
Researchers analyzed 232 EMTALA-related Office of Inspector General (OIG) settlements that occurred between 2002 and 2018. During the study period, OB emergency settlements rose from 17% to 40%. “This is not surprising in the context of declining availability of obstetrical services in the U.S. during the study period,” Terp offers.4 Some key findings:
• More than one-third of cases involved a demand, a suggestion, or an offer to pregnant patients to proceed in a private vehicle to another hospital (usually, a facility where the regular obstetrician practiced). “In many of these cases, the patient was turned away or discouraged from staying before they were entered into the log, or before an MSE [medical screening examination] was performed and documented,” Terp says.
Even if patients choose to seek care elsewhere, an MSE could determine if the patient is stable for discharge. “It could also inform discussion of risks and benefits of leaving without stabilizing treatment or formal transfer,” Terp suggests.
• Failure to make arrangements for necessary transfer was a common theme in OB settlements vs. those that did not involve OB. Emergency department (ED) providers must identify a physician who is willing to accept the patient, confirm the receiving hospital has capacity to treat the mother, and has capability to treat the neonate. It also takes time for the transport team to travel to the sending hospital and bring the patient to the receiving hospital. “Labor is a time-sensitive condition. The issue tends to be that transfers take time,” Terp observes.
• In one in five cases, the patient was a pregnant minor. “Providers should be reminded of obligations to evaluate and stabilize minors,” Terp says. If a minor presents to an ED and requests an exam or treatment for an emergency medical condition, that facility is legally obligated to perform that exam to learn if the patient’s condition constitutes an emergency. Clinicians should not wait for parental consent to perform an MSE or treat the condition, Terp adds.
• A total of 13% of settlements involved labor and delivery triage areas specifically. Under EMTALA, many labor and delivery evaluation areas can be designated as dedicated EDs. With that designation, clinicians working in these areas are required to follow transfer, screening, and stabilization requirements if positioned in a facility with a Medicare provider agreement, according to Terp.
Patients who present to the ED above a certain gestational age (typically from 18 to 20 weeks, depending on the hospital’s policy) are immediately taken to the OB unit if the hospital provides OB care. “As far as CMS [Centers for Medicare & Medicaid Services] is concerned, that unit has all the same responsibilities as the main ED does with regard to EMTALA, albeit it’s focused on OB patients,” says Todd B. Taylor, MD, FACEP, a Phoenix-based EMTALA compliance consultant.
For EDs at hospitals without OB services, patients typically are managed in the ED. In some cases, there is not even an OB on staff at the hospital. “Since the ED has to manage the situation, it becomes more complicated,” Taylor notes.
In many instances, the ED needs to transfer the patient to a hospital with OB services. “Anytime you are forced to transfer a patient because your hospital does not have the capability or capacity to treat the patient, there’s going to be the opportunity for failure of some sort,” Taylor observes.
Even if hospital transfer protocols are followed closely, some things are outside the ED’s control. “There are many factors that go into a successful transfer, not the least of which is the availability of transport,” Taylor notes.
For instance, delays of several hours are possible. “Even if you have the very best intentions, things can still go off the rails at times,” Taylor says. For the most part, issues regarding OB and EMTALA are “fairly well-settled,” Taylor says. “That’s not to say there can’t be failures in systems that can lead to issues, but I don’t think it’s systemic.”
The tiny number of OB EMTALA civil monetary penalties per year suggests the vast majority of ED providers understand the law and know what to do, according to Taylor. The issue is there is considerable debate over what constitutes “active labor.”
“This is usually determined retrospectively, setting up everyone for failure,” Taylor laments.
During EMTALA investigations, there often are differing opinions on whether the patient was really in “active labor” at the time of the ED visit. “Women come to EDs all the time just to see if they are in labor. It’s an inexact science, despite what EMTALA might imply,” Taylor explains. Many travel to the closest ED just to find out if they need to go to the hospital where they plan to deliver.
“You are going to misjudge a few,” Taylor admits. “That’s reality, and sometimes it ends up being cited as an EMTALA violation.”
One way to reduce risk is to always use an ambulance if OB patients are going to another hospital, and allow patients to refuse the ambulance if they insist on driving their own car. “In this regulatory environment, it’s just not worth the risk,” Taylor acknowledges.
- Terp S, Wang B, Burner E, et al. Penalties for Emergency Medical Treatment and Labor Act violations involving obstetrical emergencies. West J Emerg Med 2020;21:235-243.
- Terp S, Wang B, Raffetto B, et al. Individual physician penalties resulting from violation of Emergency Medical Treatment and Labor Act: A review of Office of the Inspector General patient dumping settlements, 2002-2015. Acad Emerg Med 2017;24:442-446.
- Terp S, Wang B, Burner E, et al. Civil monetary penalties resulting from violations of the Emergency Medical Treatment and Labor Act (EMTALA) involving psychiatric emergencies, 2002-2018. Acad Emerg Med 2019;26:470-478.
- Hung P, Henning-Smith CE, Casey MM, et al. Access to obstetric services in rural counties still declining, with 9 percent losing services, 2004-14. Health Aff (Millwood) 2017;36:1663-1671.