EMTALA Violations, Malpractice Claims Possible if ED Goes on Diversion Inappropriately
Surges in volume combined with staffing shortages can force EDs to go on diversion as a last resort. The problem is for some EDs, this happens regularly. “The problem with diversion is that it cannot be uniformly applied,” says John C. West, JD, MHA, DFASHRM, CPHRM, principal at West Consulting Services, a Signal Mountain, TN-based risk management and patient safety consulting firm.
Going on diversion does not completely solve the capacity problem. “If a countywide service does not come to a particular ED when that is the closest ED, it is not a violation of EMTALA if that ED is on divert,” West explains.
However, if an ambulance arrives at a hospital despite the diversion proclamation, the ED probably still does have to treat that patient. “The same is true for walk-ins. Walk-in patients cannot be turned away just because the hospital is on divert,” West cautions.
Diversion is preferable to an inability to treat patients. “It may not solve the problem, but it can alleviate the problem,” West offers.
Often, a patient is sent to Hospital A because the belief is Hospital A has the capacity to treat. However, Hospital A is slammed and cannot provide the necessary services. In turn, Hospital A sends the patient to Hospital B. “There can be problems with these cases when the delay exacerbates the injury,” West says.
If the hospital’s failure to communicate diversionary status factors into this, the hospital can be liable under EMTALA. If the primary care physician sends the patient, “the ED would have to treat the patient despite the diversionary status,” West says. “It does not matter what the primary care physician knows or does not know about the ED’s capacity.”
Patients are unlikely to successfully sue for malpractice by alleging improper diversion caused a bad outcome. “One of the issues with suing a hospital for malpractice that wrongfully went on diversion is establishing a provider/patient relationship,” West notes.
If the patient never went to that ED, there can be no provider/patient relationship. Thus, the patient’s only option is a claim for failing to screen as required by EMTALA, another uphill battle. “That patient has to have been shown to have ‘come to’ the hospital in order to invoke EMTALA,” West explains. “But that claim will fail if the hospital was appropriately on divert.”
ED diversions “are up in some areas of the country, but not in others, from what I am hearing from physicians and hospitals,” reports Stephen A. Frew, JD, vice president of risk consulting at Johnson Insurance Services. EDs are full of people who delayed medical care during the pandemic. Today, they are presenting higher acuity and more frequently. “Many diversions I have heard about lately are being attributed to staffing shortages rather than bed shortages,” Frew notes. “Many hospitals question whether some hospitals are transferring patients based on perceived unfavorable profits from the patient’s care.”
ED providers divert patients based on their perception of staff workload and a genuine concern for the best care for patients. “They just order the ambulance to go elsewhere based on their subjective appraisal,” Frew says.
Emergency physicians (EPs) should consider going on diversion may increase patient risk and the ED to which they are diverting often may be more overloaded than the first ED. Additionally, diversions might deplete available EMS units for extended periods. Further, the technical components of diversion policies may not have been completed.
CMS expects diversion decisions to be made per policy, and documented as such. “Most EDs are very poor on diversion documentation,” Frew observes. When challenged on this, the typical response is staff was too busy caring for patients to complete paperwork. “CMS seldom accepts that answer except in declared disaster situations,” Frew warns.
Diversion is “generally misunderstood by EDs,” according to Frew. “They tend to think that they order diversion, where EMTALA makes it more of a request, at best.”
Under EMTALA, a hospital may redirect an ambulance bringing a patient to its ED to another facility only if the hospital is on formal diversion. That means the hospital must maintain a policy and procedure to place the hospital on diversion, and personnel must have complied with that regulation. “The standard for diversion is different from the standard for when a facility must accept a transfer from another hospital,” Frew notes.
A hospital on diversion still may be required to accept a transfer. “EMTALA requires a hospital that is on diversion to accept a patient and provide care if the patient presents to the hospital seeking care,” Frew adds.
The “presentation” can be because the patient comes to the ED anyway, or because the ambulance brings the patient to the ED even after EMS were told to go elsewhere because of diversion. “Once an ambulance has crossed the outer boundary of the hospital campus, EMTALA forbids diversion for any reason unless an applicable emergency EMTALA waiver is in effect,” Frew cautions. A hospital that receives a patient from an ED on diversion they believe is inappropriate under EMTALA is required to care for that patient and report the EMTALA violation (to the state or CMS) within 72 hours of the receipt of the patient. “Failure to report may result in an EMTALA citation against the receiving hospital,” Frew says.
To avoid problems with EMTALA, Frew recommends that hospital diversion policies include community-based policies, created in agreement with EMS and other area hospitals, so everyone is handling diversion similarly. Many states direct county or regional EMS councils or similar organizations to coordinate EMS and diversion practices. “Policies should reflect state, local, and EMTALA requirements,” Frew says.
Create a formal activation procedure that specifies who must order diversion, acceptable reasons for diversion, how it is handled, and how the diversion is communicated to fire/EMS/police dispatch and other hospitals. “Some diversions may be total diversions for the facility, and some are for specific types of cases,” Frew explains.
There should be a limited duration for diversions (e.g., four hours). This way, diversion must be extended formally rather than allowed to continue indefinitely. Put in place nonretaliation provisions that forbid hostility toward ambulances, EMS personnel, or government agencies that come to the ED due to the patient’s condition or the patient or family’s request, despite the fact they were notified of diversion status.
Require documentation of all diversion activations and create a formal “post-action” review of all formal diversion activations. EDs can examine the cause, appropriateness, documentation, and necessary feasible actions to avoid diversions in the future.
Where appropriate, there can be forced termination of diversion. This is a provision that indicates when most hospitals in an area are on diversion, all must come off diversion to give EMS available destinations. “Otherwise, ambulances simply ignore diversion to avoid long transports and depletion of limited EMS units in a region,” Frew says.
Diversion procedures should include community-based policies, created in agreement with EMS and other area hospitals, so everyone is handling the issue similarly. Create a formal activation procedure that specifies who must order diversion, acceptable reasons for diversion, how it is handled, and how the diversion is communicated to fire/EMS/police dispatch and other facilities.
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