Patient Can’t Pay for ED Care? EPs Must Protect Themselves Legally
Offer patients options for follow-up care
"I can’t afford that test," "Don’t bother giving me an appointment for a specialist because my insurance won’t cover it," "I can’t pay for that medication."
When an emergency department (ED) patient makes statements such as this, the emergency physician (EP) is often faced with few or no financial assistance options for the patient to achieve the recommended course of care, says Stephen A. Frew, JD, vice president of risk consulting at Johnson Insurance Services and a Rockford, IL-based attorney.
"Despite the political hype surrounding the Affordable Care Act, the situation is not likely to disappear in the foreseeable future," says Frew.
There is no specific cause of action for patients who are unable to pay and claim they were not treated or were discriminated against, except under the Emergency Medical Treatment and Labor Act (EMTALA), and that cause of action is against the hospital. "The issue often is subsumed in allegations of substandard care or perhaps discrimination," says Frew.
As with any emergency plan, the hospital must assess all of the available community resources and be in a position to deploy them to assist patients with financial needs, advises Frew.
"While resources in many hospitals are limited, the ED should be aware of all options and how to access them," says Frew, adding that in larger facilities, the EP may be able to rely upon a patient service representative to work with the patient.
There is no specific legal obligation for the EP to be an expert on the financial aspects of care. However, says Frew, "a successful plan of care that the patient can and will follow always leaves the physician in a less vulnerable position for future claims of malpractice or EMTALA violation."
Don’t Ignore Concerns
"The risk for the EP is if a plaintiff’s attorney can prove that the physician knew that the patient could not afford follow up, and thus, would not," says Michael Blaivas, MD, FACEP, professor of medicine at University of South Carolina Medical School and an ED physician at St. Francis Hospital in Columbus, GA.
If the patient or family specifically stated that they cannot follow up due to finances, this would typically be documented in the medical record by the EP or ED nurse. "Then, in court, it sounds like the EP effectively suggested no follow up," says Blaivas. "While this is not in fact true, the fear is that a crafty plaintiff attorney will convince the jury of that."
This is especially problematic if follow up was critical. "Many of us never ask patients about money, look at the patient’s insurance, or document payer status, as we should not," says Blaivas. "However, if you heard from the patient or family about this concern, it cannot be ignored."
To protect themselves legally, EPs can address the concern and document the discussion, says Blaivas. Otherwise, the EP may be surprised later to find such documentation in the nursing notes after the patient is discharged. "The nurse did not mean anything malicious by this, but simply did not have time to catch up on charting until later, and was diligent enough to doc ument family and patient concerns," says Blaivas.
Blaivas recommends that EPs have a "ready response" of resources for indigent patients, such as clinics or social services that can serve as a backup for the patient. "Ask them to follow up with the referral, but if for some reason they need the backup, here it is," says Blaivas. "Also, they should always be reminded to return to the ED."
Documenting these efforts does not have to be burdensome for the EP, he adds — just a summary is needed. "This will be important to stand up to a challenge by the plaintiff that the EP did not give plausible options, such as a facility too far or without capability," says Blaivas. EPs should know the location and capability of the backup "referrals," ; he adds, and should be able to explain why they thought it was a reasonable place for the patient to go if the patient was unable to get into the referral that was made based on the hospital call list.
"The EP can also explain in court that he or she is required to refer by the call list, but took the extra step of giving additional options in response to the patient’s concern about finances," says Blaivas.
Non-standard Course of Care
If the patient is in the ED with a condition that, left untreated, may cause a deterioration in the patient’s condition, EMTALA requires the hospital to provide the necessary care regardless of means or ability to pay. "Medical malpractice liability generally follows the EMTALA requirements," says Frew. "That care is required to be consistent with the car e provided to fully insured patients with the same or similar conditions."
If the patient refuses care, the only option for EPs under EMTALA is to document a detailed discussion of risks and benefits, and to obtain a written refusal of services from the patient. "Risks and benefits discussed with patient’ is wholly inadequate documentation," adds Frew.
EPs should specify that they discussed alternatives with greater risk and potentially less effectiveness to prevent the patient from going completely untreated, says Frew. This documentation establishes that the EP is proceeding "under duress" to achieve some level of care for the patient by prescribing the non-standard course of care, he explains.
It should be noted that less expensive care is much more effective than no care, says Blaivas. "Best treatments are not always agreed upon, and the person with the largest wallet may end up with testing and procedures they do not need," he adds.
Blaivas says the best approach for EPs is to recommend and document their recommendation for reasonable and effective care.
"The key in court is that if you believe it was a reasonable referral — and you should if you made it — do not waver, no matter how much the attorney presses, and do not let yourself be tricked with hypothetic scenarios," he says. In this scenario, Blaivas says EPs should "stand their ground and repeat, As I have already said, I believe this was reasonable because ...’"
If a patient is unwilling to accept the EP’s recommendations due to cost, and threatens to refuse all care as a result, "only then should a discussion ensue about less costly and effective alternatives," says Michelle Myers Glower, MSN, RN, NEA-BC, a clinical instructor at Loyola University, Chicago. Myers Glower is former ED director at Elmhurst (IL) Hospita l and former ED case manager at NorthShore University Hospital in Evanston, IL. Before this discussion begins, however, she says these steps should occur:
• The mental competency of the patient should be determined.
• The EP should make it clear to the patient that he or she is now acting against the EP’s best medical advice.
• Lastly, a conversation about the benefits, risks, and costs of alternative care should ensue.
"Excellent documentation that covers the above conversation from practitioner to patient is a must," says Myers Glower. "This cannot be overstated."
Offer Options to Reduce Risk
Myers Glower recommends that ED nurse case managers facilitate the discussion about options in follow-up health care at the point of entry.
"This does work. I did it, and the patients loved the information," says Myers Glower. "This new type of discharge planning should be happening at the point of entry."
In one case, a patient who presented to the ED with a pelvic fracture wanted to be admitted under inpatient status for three overnight stays in order for Medicare to pay for her to go to a skilled nursing facility.
"However, she did not qualify for inpatient status; she qualified for observation status," says Myers Glower.
The patient was given the option of being transferred from the ED to a skilled nursing facility at a negotiated rate that the hospital arranged with several facilities in the area, or to be admitted overnight and discharged to a skilled nursing facility, which would result in higher out-of-pocket costs.
"This way, the patient who can pay the significant reduced rates for a short skilled nursing facility stay is managed appropriately, and not sent home to be unable to care for herself," says Myers Glower.
Similarly, uninsured patients with no primary care physician who need follow up in a clinic can be given a referral and, hopefully, an appointment before they leave.
"Many EDs are now doing this 24/7, which is smart thinking," says Myers Glower. "Identifying the risk at the door with a plan makes everyone happy."
For more information, contact:
- Michael Blaivas, MD, FACEP, professor of medicine at University of South Carolina Medical School and an ED physician at St. Francis Hospital in Columbus, GA. E-mail: firstname.lastname@example.org.
- Stephen A. Frew, JD, vice president of risk consulting at Johnson Insurance Services and a Rockford, IL-based attorney, Loves Park, IL. Phone: (608) 658-5035. E-mail: email@example.com.
- Michelle Myers Glower, MSN, RN, NEA-BC, Clinical Instructor, Loyola University, Chicago. E-mail: