Lawsuits stem from poor communication with transfers

After presenting to a Missouri emergency department and being diagnosed with pneumonia, a patient developed confusion and a headache. A CT scan revealed an epidural hematoma with a subarachnoid bleed. Because the on-call neurosurgeon was unavailable, the patient was transferred to a second facility.

"After reversing the anticoagulation effects of the [warfarin], the patient was taken to surgery for an emergency craniotomy. The patient died two weeks later," says Lizabeth Brott, JD, regional vice president of risk management at ProAssurance Companies in Okemos, MI.

The plaintiffs filed a wrongful death claim against the neurosurgeon and the first hospital. They claimed the neurosurgeon was negligent in delegating his on-call duties to his associate, who did not have privileges at the hospital, and failing to notify the hospital he would be unavailable. The jury awarded the plaintiffs $400,800, attributing 50% of the fault to the neurosurgeon. The neurosurgeon appealed, but the appellate court upheld the verdict.1

When a patient is transferred, the primary liability risk is inadequate communication between the transferring physician and the receiving physician, according to Brott. "Failure by the transferring physician to provide relevant test results, or to make the receiving physician aware of test results that were posted to the patient's record following transfer, could pose significant risk to both the patient and the physicians," says Brott.

Be aware of legal obligations

A decision to transfer the care of a patient to a specialist, when appropriate, typically involves minimal risk on the part of the transferring physician, unless the transferring physician was aware of significant problems associated with the specialist's practice and made the referral anyway, says Brott.

"On the other hand, the decision to transfer a patient from a hospital emergency department to another facility can be fraught with risks," she warns.

The Emergency Medical Treatment and Active Labor Act (EMTALA) requires that when a patient presents to an emergency department with an emergency medical condition, the physician and/or the hospital shall provide necessary stabilizing treatment or an appropriate transfer to another facility where stabilization can occur, says Brott. "EMTALA further requires hospitals' policies and procedures to define the responsibilities of on-call physicians to respond and treat patients with emergency medical conditions," she says. "Hospital policies must also address steps to be taken if the on-call physician is unavailable."

In the Missouri case, the transferring hospital and/or the neurosurgeon also could have faced monetary penalties and exclusion from Medicare and Medicaid, in addition to the professional liability claim, she says. EMTALA also mandates that hospitals with specialized capabilities or facilities, such as burn units or neonatal intensive care units, cannot refuse to accept appropriate transfers of patients who require such capabilities or facilities if the hospital has the capacity to treat them, notes Brott.

Brott suggests these practices to reduce legal risks involving transfers:

  • When caring for a patient who was transferred to your hospital, don't rely exclusively on previous clinicians' documentation.
  • When multiple physicians are involved in the care of the patient, confirm who is responsible for following up with laboratory test results and orders.
  • Educate patients and families as to why a transfer is necessary, and document the conversation and the patient's agreement or refusal.
  • Communicate relevant test results to subsequent treating clinicians, primary care physicians, and patients/family members.
  • Ensure test results are clearly labeled as preliminary or final.

"Don't assume another clinician will reconcile preliminary and final results," says Brott.

  • Don't rely exclusively on verbal reports without ensuring consistency with the written report.
  • Transmit a copy of the discharge instructions and/or discharge summary to the patient's primary care physician.

If not available at discharge, consider providing an interim discharge summary clearly marked as preliminary with the diagnosis, pertinent medical history, and physical findings, says Brott.

Address any recommendations for subsequent treating specialists or sub-specialists, provide information on the patient's condition at discharge, and address medication reconciliation. Include details of follow-up arrangements and your name and contact information, she advises. "Confirm who will follow-up on test results posted to the patient's record after discharge," says Brott. "Lastly, physicians who transfer patients from emergency departments should understand their responsibilities under EMTALA."


  1. Brown v. Bailey, 210 S.W.3d 397 (Mo. Ct. App. 2007).


  • Lizabeth Brott, JD, Regional Vice President, Risk Management, ProAssurance Companies, Okemos, MI. Phone: (800) 282-1036, Ext. 6217. Fax: (205) 414-2806. Email: