Be ready to sound alarm in handling transfer cases

AMs can help prevent liability, expert says

The liability risks for hospitals and physicians under federal EMTALA/COBRA laws are growing in ways even many experts never considered, two recent court decisions illustrate.

Access managers may need to be the ones sounding the alarm in such situations, suggests Stephen A. Frew, a Rockford, IL, a health care lawyer who advises hospitals on the 1986 law.

Both cases, which involve transfer patients and on-call physicians, "put a premium on having a set of policies and procedures that define exactly how transfers and specialty cases will be handled," says Frew.

"[Hospitals] need written policies and procedures, including a system to get administrative review in real time within the institution on a stat basis," he adds. "If the on-call [physician] isn’t responding or turning down transfers, often the admission folks are aware because they will be the ones stuck in between in the negotiations.

"There needs to be a mechanism to put a real-time solution in place to prevent a violation. Fixing it afterward doesn’t help."

Misconceptions could be dangerous

In the most recent case, a Missouri court had dismissed a lawsuit against an on-call physician, saying no physician/patient relationship had been established. The case against Mexico, MO, general surgeon Joseph A. Corrado, MD, isn’t settled, but it shows a dangerous misconception about physicians’ legal obligations, Frew says.

Corrado has argued he should not be held liable for failing to respond to a call to treat a woman who was badly injured in a November 1995 car crash because he had no physician/ patient relationship with her, a requirement of the state’s malpractice law.

When the woman was brought to Audrain Medical Center’s emergency department, Corrado, who purportedly was on call, was attending a four-hour meeting of the American College of Surgeons in nearby Columbia, MO, and had left an orthopedic surgeon in his place. According to the Corrado’s lawyer, the hospital was informed of the change. The patient’s lawyer contends the hospital was not informed.

The patient, Marjorie Millard, who needed the services of a general surgeon, was transferred to a trauma center. She survived but lost a kidney, has an ileostomy, and suffered a brain injury. She later sued the hospital, Corrado, and an emergency department (ED) physician, as well as General Motors for a safety defect in the car she was in. All but Corrado, who was dismissed from the case early on, settled for an undisclosed sum.

Case sent back for trial

In December 1999, the Missouri Court of Appeals, Eastern District, overturned the ruling and sent the case back for trial, saying Corrado’s on-call status created a duty to provide reasonable notice to appropriate hospital personnel when he would be unavailable to answer calls.

"This case holding represents, in my opinion, just another realization that the old rules that govern on-call and duty to accept transfers no longer apply," says Frew. "Previously, physicians could pick and choose patients, and an on-call physician had no obligation until he or she accepted the patient, with no duty to accept transfers."

That philosophy has been entirely replaced, he adds, "by a formal structure, working its way up through the courts. Basically, the EMTALA and the COBRA law have substituted a legislated standard."

In the other case, a federal administrative law judge (ALJ) entered an order finding that an Oklahoma hospital violated COBRA/EMTALA laws when its on-call surgeon turned down a transfer of a vascular surgery patient from another community. The ALJ assessed a $25,000 civil monetary penalty against the hospital rather than the $50,000 fine provided by the legislation.

The case, which is on appeal, was publicized on NBC television’s "Dateline" program after the network investigated allegations that several hospitals turned down transfer of the patient, who ultimately died in surgery many hours after the first request for emergency transfer was made, Frew says. Several hospitals were cited by the federal Health Care Financing Administration, submitted plans of correction, and reportedly settled civil lawsuits arising from the case, he notes.

The ED physician at the hospital at issue in the case contacted the on-call vascular surgeon, who indicated he was "not interested" in taking the case, according to the ALJ findings, explains Frew. The surgeon recommended transferring the patient to the Norman-based University of Oklahoma hospital, which previously had turned down the transfer. At trial, the hospital disputed whether it had been requested to accept transfer and whether it was obligated to accept a patient medical personnel deemed better off at another facility. The ALJ rejected all of the hospital’s arguments and entered the fine.

"The hospital escaped a maximum fine because the ALJ found that the hospital had proper policies that required the transfer to be accepted but negligently failed to assure that they were complied with by the on-call physician and the ED physician," Frew says.

Hospitals have to accept

Federal law requires hospitals that have greater capabilities than referring hospitals to accept emergency transfers of patients needing those services and to do so without regard to means or ability to pay. This case is the first instance of a hospital going to trial over the issue of fines, Frew points out.

"The message from this case is that hospitals have to accept requested transfers, and their on-call physicians must facilitate those acceptances," he says. "It also appears that if the hospital gets involved in the process and makes a financial denial, rather than just failing to assure that their personnel understand the acceptance rules, the fines are likely to be substantially higher."

The highest administrative fine to date for denial of acceptance of a transfer was a $148,000 fine last fall against the Lawrence-based University of Kansas Medical Center for turning down three patients as a result of financial disputes with the state of Missouri Medicaid program, Frew adds.

(Editor’s note: More information on EMTALA standards and court cases is available at Frew’s Web site: www.medlaw.com.)