When CMS surveyors come on site to investigate an EMTALA complaint, the outcome often comes down to documentation.

“EMTALA is one of the biggest concerns when it comes to ED patients and documentation,” says Nathan A. Kottkamp, JD, a partner at Waller Lansden Dortch & Davis in Nashville. These items in particular can create liability under EMTALA if missing from the ED record:

When patients transfer to another facility, there must be documentation of the reason why the originating facility lacks the capability and capacity to stabilize those patients. “There should also be documentation about having consulted with the other facility to ensure that it has agreed to the transfer,” Kottkamp adds.

“Good” reasons for transfer concern capacity and capability. “Those are the two buzz words for EMTALA purposes,” Kottkamp notes. Admission might be the ordinary course of action for a particular patient. “But if the entire hospital is at 100% occupancy due to a COVID outbreak, that would almost certainly justify a transfer,” Kottkamp observes.

Even so, some actual details about the situation should be in the record. It might not be enough to simply say something like, “Patient transferred because we are full.”

“Indeed, the regulators have been known to look beyond licensed capacity numbers when it comes to being able to serve a surge of patients,” Kottkamp recalls.

Other “good” reasons for transfer: Lack of particular equipment necessary for a comprehensive diagnosis, lack of equipment for appropriate treatment, or lack of specialists for the particular situation.

All ED evaluations should include a physical and psychological component. “Even when a particular injury or condition appears to fall into one category or the other, a dual screening is still required,” Kottkamp stresses.

For example, it is unlikely but still possible that a patient with a broken bone caused the injury during a psychological crisis. Similarly, a patient who is exhibiting psychological symptoms could have a complementary physical problem. “It should be clear in the record that the ED physician at least considered psychological issues with respect to the patient,” Kottkamp says.

Extensive charting on this point usually is unnecessary. “The record should not, however, be completely silent on the issue,” Kottkamp cautions.

It may be a matter of simply describing the patient’s demeanor and expressly stating: “Based on the patient’s presentation, there was no concern for psychiatric issues, so no formal screening was conducted.”

For patients who do present with psychological symptoms, “the documentation ought to be more robust,” Kottkamp offers. Depending on the situation, it is highly possible someone with psychological symptoms has engaged in self-harm or risky behavior that resulted in physical injuries.

  • When patients are transferred, the ED chart should demonstrate that care and monitoring was provided before the move. “There should not be any extended periods of time where there is no record of any clinician checking in on the patient,” Kottkamp underlines.
  • If the patient is admitted, the ED chart should reflect the rationale for the decision. “Among other things, the record should reflect the fact that the admission is made in good faith, rather than simply to bypass the obligations of EMTALA,” Kottkamp says.

The best way to do this is to describe the plan of care for the inpatient admission and specify a certain room where the patient is headed. “Where possible, indicate the specific name of the admitting physician,” Kottkamp adds.

Documentation failures play a part in virtually all EMTALA litigation or settlements, according to Mary C. Malone, JD, a partner at Hancock Daniel & Johnson in Richmond, VA. Conversely, good documentation shows surveyors that ED providers were EMTALA-compliant. “The overall process of ensuring that each element of the core EMTALA obligations is documented is crucial,” Malone says.

Well-constructed forms, such as consent, refusal, or transfer documents, make this more likely to happen. Prompts in the EHR can help ensure the medical screening exam (MSE) is described in sufficient detail, whether an emergency medical condition is identified, that stabilization is provided, and that the details of the conditions necessitating transfer are documented. “If documentation is not complete at the time of survey, the hospital will likely be subject to an EMTALA violation,” Malone warns.

Documentation inadequacies also can be assigned to individual EPs (e.g., failure to perform an appropriate MSE). Both hospitals and clinicians may be subject to monetary penalties for EMTALA infractions. Depending on the circumstances, documentation failures could create the basis for a professional licensure claim, too. “In addition, the lack of documentation can make any associated professional liability claims difficult to defend,” Malone adds.

These two cases never resulted in a litigation claim because of excellent documentation:

• A patient was screened for suicide risk after presenting with depression, and was observed in the ED for several hours. Ultimately, the patient was discharged with family members, with a plan in place for outpatient behavioral health treatment. “When the patient committed suicide 236 hours later, the family brought a med/mal suit and filed an EMTALA complaint,” Malone reports.

The ED’s good documentation showed the patient had been observed, and that stabilizing treatment was provided. This included speaking with the psychiatrist on call, after which the patient left the hospital with family members. There were no signs of any threat to self or others. “The alleged failure to perform a sufficient MSE was not substantiated at survey,” Malone says.

• A patient with chest pain decided to leave the ED against medical advice (AMA) before the MSE was completed. The patient would not sign the AMA form. The patient died later that evening of a myocardial infarction.

The family filed an EMTALA complaint and sued for malpractice. The hospital owned great documentation to defend itself. The ED chart noted the portions of the MSE that had been completed, the advice the patient was given not to leave the hospital, and the risks of doing so.

The AMA form was completed with an indication that the patient refused to sign. “Documentation saved the hospital both on the EMTALA complaint and the lawsuit,” Malone says.