Reader Questions

Outpatient clinic can be OK for injured employees

Question: The answer to a recent reader question suggested that injured employees be treated in the employee health department instead of the emergency department (ED), but what if you don’t have an employee health department? We only have an employee health nurse, so could employee falls be treated in the outpatient clinic?

Answer: In the previous article, Mark Hakim, BS, MA, MBA, risk management consultant with ProAssurance Corp., an insurer in Okemos, MI, cautioned that well-intentioned efforts to provide quality care in the emergency department could backfire. The reason involved the dual-capacity doctrine, which means that an employer who is normally immune from tort action because of workers’ compensation laws may be liable for additional damages as a party who has committed a wrongful or negligent act beyond its role as employer.

When an employee is treated for on-the-job injuries, that doctrine can mean that if the employee stays in the employee health department, in most cases, the hospital is just an employer respon- sible for workers’ compensation claims. But if the employees goes to the ED, the employer also could be exposed to malpractice claims or other allegations that any patient might bring.

Treating an injured employee in the ED also may create additional risks for violating HIPAA and other privacy concerns.

Hakim says the question regarding whether an outpatient clinic would suffice raises a good point. Unfortunately, the answer is not simple. "Risk management often becomes a balancing act between the risk of providing the appropriate medical care and other risks, for example, potential allegations of medical malpractice, breach of patient confidentiality, and so on," he says. "In other words, where does the greatest risk exposure lie?"

It is important to remember that workers’ compensation laws vary from state to state, Hakim says, so it would be wise to consult with legal counsel experienced in this area. Beyond that, he stresses that getting the patient the best available medical care is always sound risk management even when that patient is your employee.

That may include having the patient treated in an outpatient clinic or an ED if those are the most appropriate resources available in your organization. "When that is the case, it may be worthwhile to provide the outpatient clinic and ED staff, both clerical and clinical, with some training relating to the specifics of treating employee injuries, HIPAA, and other concerns," he says. "Another possibility would be to develop some very specific triage algorithms for work-related injuries. Working with the input of an occupational medicine physician and an ED physician, you develop guidelines for what injuries can be seen by the employee health nurse and what needs to go to the ED."

Diplomacy required when patients want to leave ED

Question: How much do we really have to encourage people to stay for treatment in the emergency department (ED) when they want to leave? I understand that it can be considered an EMTALA violation if they leave without being seen and say it was because they didn’t feel welcome. But how much encouragement is enough?

Answer: It is true that you could be accused of an EMTALA violation if patients say they left because the ED staff made them feel unwelcome, says M. Steven Lipton, JD, an attorney specializing in EMTALA interpretation with the law firm of Davis Wright Tremaine in San Francisco. And that could include letting patients walk out the door because the wait is too long.

The tricky part is knowing how much to persuade them to stay, he says. Some action is necessary, he says, but ED staff do not have to beg and plead with patients. "The hospital is expected to first take no action or say anything that would discourage anyone from remaining for the medical screening examination and possibly stabilizing treatment," he says. "If a patient indicates that he or she would like to leave or intends to leave, then the hospital must remind the patient that they will provide the exam if the patient will wait."

If the patient still wants to go, the hospital has no obligation to further persuade him or her to stay. The key, Lipton says, is that the hospital is obligated to make clear that the patient is welcome and that an examination will be provided if only the patient will wait. But once that assurance has been provided, the hospital is not liable for the patient leaving.

From a risk management perspective, the tricky part can be proving that ED staff actually provided that assurance.

"It may be helpful for the receptionist or triage nurse to include some note in the chart that the patient wished to leave, along with whatever other facts might be appropriate, and that he was told a screening exam would be provided if he stayed," Lipton says. "A note like, Patient decided to leave despite offer to provide examination’ would be a good addition to the chart."

The situation becomes stickier when the patient wants to leave because he or she is concerned about the financial liability for treatment. In those cases, some guidance is provided by the Centers for Medicare & Medicaid Services (CMS), which in a 1999 advisory bulletin explained exactly what the ED staff should do in response to a question about financial liability. (Editor’s note: To see the entire advisory bulletin, go to www.hortyspringer.com/content/EMTALA_SAB_Nov10_1999.htm. Financial inquiries are addressed in item 4.)

That CMS guidance indicates that the government expects ED staff to reassure people that they will be treated as needed without regard to payment, even going to great lengths if necessary to avoid answering a question about how much the treatment will cost. That can create difficulty when ED staff think patients have a legitimate reason to ask what the payment obligation will be and when patients are frustrated with not getting a direct answer.

If the patient insists on a straight answer, CMS allows the ED staff to respond only after exhausting all attempts at stonewalling.

The advisory bulletin outlines a series of steps intended to reassure the patient and deflect payment inquiries. Only after going through those steps can the staff member answer the question about payment.