Protect yourself when violations occur

An ED physician can be held personally liable for making improper EMTALA decisions, warns Stephen Frew, a Rockford, IL-based health care attorney and consultant. Physicians can be individually fined by HCFA for up to $50,000 per incident. "That is not covered by insurance, it is out of pocket," he stresses.

"The Office of the Inspector General has dramatically increased citations of individual physicians for EMTALA violations, which parallels their overall gearing up on patient transfer issues," says Frew. ED nurses are not individually liable, but the hospital can be liable for a nurse’s actions as well, he notes.

There are other consequences for individual clinicians who violate EMTALA, says Frew. "These matters are reported to state licensing boards, and have resulted in actions against individuals," he reports. "Internally, it may also result in discipline, which could effect employment."

The law provides whistle blower’ protection for ED physicians who act appropriately in response to violations, notes Larry Bedard, MD, FACEP, director of emergency services at Doctors Medical Center in San Pablo and Pinole, CA. "If you do not get an on-call physician to respond, work it through formal hospital policies and procedures. So if the surgeon doesn’t respond, my next call will be to the chief of surgery, and the next call is to the chief of staff of the hospital," he says.

If you can’t get the consultant to respond, you are required by law to report the name and address of that physician, Bedard stresses. "If you do this, the law protects you and you are absolved from responsibility. The responsibility falls back on that physician and the hospital. It’s illegal for a hospital or another physician to retaliate against you," he says.

If you inform the physician of your obligation to report, they may decide to come to the ED, notes Bedard. "Say, The law requires me to report you, but I would rather you just came in and took care of my patient,’" he recommends. "I’ve done that half a dozen times. Every time I’ve informed a physician of that, they are surprised and generally promptly come into the hospital and take care of the patient."

Address the situation immediately, Bedard advises. "If you’ve got a physician who doesn’t return calls while you are in the midst of the crisis, I think that needs to be referred to your QA committee. You should also file an incident report," he says.

Document the situation thoroughly. "Document that you have a consultant who is not calling you back. You need to document on medical records that the phone call was made and you didn’t get a timely response," Bedard urges. "For example, write on the chart that the consultant later told you that his answering service didn’t call him, or his beeper battery ran out."

When HCFA investigators review records, he or she will assume consultants were asked to come in. "If all it says is the physician was called,’ they presume that was called to come in. If it doesn’t say there was a phone consultation, they will assume he or she was asked to come in and failed to," says Frew.

Follow the hospital’s chain of command. "After 30 or 45 minutes of waiting, call the chief of surgery and tell them, Dr. Smith does this all the time and you know it. If the response [from the chief of surgery] is don’t bother me with this,’ then your next call should be to hospital administration," says Bedard."