Question: What can we say to an ambulance crew who bring a patient to our hospital when we think the patient would be better cared for at another facility? If we have a good reason, can we tell them to take the patient elsewhere without risking an EMTALA violation?

Answer: Not really. This situation can be a real dilemma for EDs, says Mark Kadzielski, JD, head of the West Coast health practice in the Los Angeles office of the law firm of Fulbright & Jaworksi.

In most situations, the conservative approach is to always bring the patient in for a proper screening examination once ambulance personnel have contacted your ED, he says. That’s true even if you think you have a perfectly legitimate, clinical reason for suggesting that the patient would receive better care at St. Elsewhere. "It’s always, always a risk to say, Don’t bring that patient here,’" Kadzielski says.

The final EMTALA rule released recently strengthens this interpretation, says Robert A. Bitterman, MD, JD, FACEP, director of risk management and managed care in the department of emergency medicine at Carolinas Medical Center in Charlotte, NC. (For more on the final EMTALA rule, see EDM, October 2003, p. 109.)

EDs have faced this dilemma since 2001, when the Ninth Circuit Court of Appeals issued a ruling that said a hospital may not divert an ambulance that has contacted the ED while en route to the hospital unless the hospital is officially on diversion status. (Arrington v. Wong, 237 F.3d 1066.) Now the final EMTALA rule codifies that court decision into the actual law.

"It used to be only in the interpretive guidelines. Now they’ve taken it out of the guidelines and put it right into the regulation," Bitterman says.

Though the final EMTALA rule clarified that hospital-owned ambulances can take patients to other hospitals based on the patient’s needs and the hospital’s proximity, Kadzielski says there is still a risk of an EMTALA violation if any ambulance is already en route to your hospital and then you send it elsewhere.

In the Arrington case, a man experienced shortness of breath. Co-workers called an ambulance, which began transporting him to the nearest hospital. The ambulance crew contacted that hospital en route and mentioned that the patient had been treated previously at a different hospital that was farther away. The ED physician responded by radio that it was "OK" to take the patient to the other hospital to see his doctor there. The ambulance took him to the other hospital, where he died. The family sued and claimed that the longer trip to the second hospital contributed to his death.

"Arrington v. Wong drove us all crazy," Kadzielski says. "You’re on the hook once the ambulance calls you and talks to you about the patient. The court says that talking to the ambulance crew about the patient triggers EMTALA."

Also, note that you should be very careful in how you phrase your comments to the ambulance crew. In the Arrington case, the physician claimed that he did not intend to direct the ambulance elsewhere but thought he was only acquiescing to a suggestion by the ambulance crew or patient. The ambulance crew testified that they thought the physician had ordered them to the other hospital.

So what do you do when you think there is a legitimate reason to send the patient elsewhere? You might have to weigh what’s best for the patient vs. your risk of an EMTALA violation. Unfortunately, the advantage always is to the patient if there is an allegation that your decision violated EMTALA and resulted in harm.

"The conservative approach is to bring the patient on in," Kadzielski says. "You do risk some clinical dilemmas with that, but you’re damned if you do and damned if you don’t. The better part of valor is to take that patient and do a preliminary exam, and then determine what would be appropriate for the patient."

Sources

For more information, contact:

  • Mark Kadzielski, Head, West Coast Health Practice, Fulbright & Jaworksi, 865 S. Figueroa St., 29th Floor, Los Angeles, CA 90017-2571. Telephone: (213) 892-9200. E-mail: mkadzielski@fulbright.com.
  • Robert A. Bitterman, MD, JD, FACEP, Director of Risk Management and Managed Care, Emergency Depart-ment, Carolinas Medical Center, 1000 Blythe Blvd., Charlotte, NC 28203. Telephone: (704) 355-5291. E-mail: rbitterman@carolinas.org.