Question: What should our emergency department (ED) staff do when a patient requests transfer to another facility before being examined and stabilized? Can we comply with that request without violating EMTALA?
Answer: This situation can lead to an inadvertent EMTALA violation if your ED staff is not carefully trained in how to respond, cautions John Wagner, JD, a health care attorney at the law firm Nossaman Guthner in Sacramento, CA. In general, he notes, a hospital has the duty under EMTALA to treat a patient with an emergency medical condition until the patient is stabilized. But there is an exception if the patient requests a transfer. That request can arise in two different ways:
• First scenario: The patient has been stabilized and is requesting a transfer. There is no EMTALA problem. The EMTALA duty has been met as the patient now is stabilized.
• Second scenario: The patient is not stabilized and requests transfer. EMTALA allows the transfer if the patient (or legally authorized person acting on the patient’s behalf) is fully informed of risks of transfer. Documentation must show that there was no coercion and the patient was fully informed.
"So step No. 1 is to determine whether the patient is stabilized," Wagner explains. "If so, what happens from then on is no longer an EMTALA issue. Then it would be an ordinary transfer."
But if the patient is not stabilized, things are much more complicated. The hospital generally is obligated to treat such patients, but you cannot force treatment on a patient who does not want it and is capable of making decisions — even bad ones — about his or her care. EMTALA clearly allows patients to request a transfer, so the ED staff must be prepared to respond in a way that protects the hospital.
Many EDs use specific forms for these types of transfers, but it is worth checking to see if they include all the necessary steps and information. Wagner suggests that ED staff should be taught to respond with these steps:
1. Inform the patient of the risks and benefits of transfer. "It should be a very detailed discussion," Wagner says, including not only the risks and benefits related to the patient’s medical condition but those associated with the mode of travel (ambulance, helicopter, etc.), potential delays, and any other concerns. Document the discussion.
2. Record the patient’s decision in his or her own words. Get the patient’s own language in the documentation as much as possible, Wagner advises. One purpose of the documentation will be to show that there was no coercion, in case the patient tries to claim later that the ED staff urged the transfer and it was not actually motivated by the patient’s desires. "Get verbatim quotes like, I like Doctor Smith at Hospital X,’ or My family always goes to Hospital X,’" he says.
3. Make sure the other hospital accepts the patient. It is the original hospital’s responsibility to ensure that the second hospital will accept the patient before proceeding with the transfer, Wagner says. If the other hospital will not accept the transfer for any reason, document that reason clearly — exactly what reason was cited and whom you spoke with at the other hospital. Also document whom you spoke with if the transfer is accepted. "And it can’t be just hospital staff. You should document that you spoke with a physician who explained that they will or won’t take the transfer," he says.
When the transfer would be dangerous to the patient, Wagner says you should make sure the receiving hospital understands that fact. "The second hospital may say the patient is too unstable and refuse to accept him," he says. "In that case, you have to treat the patient because you can’t transfer him if the other hospital refuses."
Wagner notes that the ED staff are not obligated to talk the patient out of the transfer; EMTALA does not include any such requirement. However, he says that as a practical matter, the ill-advised transfer request should prompt extra steps by the ED staff.
If, for instance, the patient requests transfer for ill-defined reasons such as, "I just don’t like this hospital" and the patient’s condition is such that the request could create an unnecessary risk, Wagner says the ED staff should go out of their way to explain that risk when discussing the request.
"They should make clear that the patient’s choice does not appear to be rational," Wagner says. "You can say that you understand he has that legal right, but that he is risking his life for a trivial reason because he needs surgery for an aneurysm immediately and there is no way to keep his brain stable for that two-hour transfer to the hospital of his choice."
Document that conversation with extra care, Wagner says. In that situation, the ED staff should go to great lengths to try to explain the risk sufficiently to the patient, Wagner says. That may mean calling in another physician to give it a try, possibly the chief of emergency medicine. Inquire about whether there is some underlying reason that the patient wants the transfer, and assure the patient that you are willing to provide treatment.
"If that patient dies on the way to the other hospital, you want to be able to show that you pulled out all the stops trying to get him to stay for treatment," he says. "It may not be required by EMTALA, but the more you see a potentially bad legal case on the horizon, the more you want to make sure you’ve done everything you can, and more than is required."