About to Transfer? Patient’s Stability Could Be Issue in Suit

Was a patient transferred without being intubated first because the emergency physician (EP) wasn’t comfortable managing a difficult airway? “If the patient requires intubation en route and it doesn’t go well, the transferring physician will likely be blamed for not securing the airway prior to transfer — and rightfully so,” says Jeanie Taylor, RN, BSN, MS, vice president of risk services for Emergency Physicians Insurance Company in Roseville, CA.

“Patients are usually transferred for services not provided and a higher level of care, but stabilizing procedures such as protecting the airway must be accomplished prior to transfer,” she says.

An ED patient might be medically stable, but is he or she stable as defined by the Emergency Medical Treatment and Labor Act (EMTALA)? “The stabilization requirements under EMTALA are confusing to physicians because the concept of medical stability is entirely different than EMTALA stability,” says Stephen A. Frew, JD, vice president of risk consulting at Johnson Insurance Services and a Rockford, IL-based attorney.

Most EPs consider it inappropriate to transfer an unstable patient, but EMTALA exists to facilitate transfer of legally unstable patients for a higher level of care, Frew explains. “Typically, EPs think of hemodynamic and respiratory stability. They believe that if they have provided ALS [Advanced Life Support] personnel, and equipment, they have addressed the risks, so the patient is stable,” he says.

EMTALA considers a patient to be unstable if there is a reasonable risk of material deterioration, says Frew, so the need to provide ALS personnel and equipment is, therefore, confirmation of the legally unstable condition of the patient by acknowledging the potential need for these interventions.

The ultimate criteria are whether the inherent risks of the condition and the transfer are outweighed by the benefits reasonably anticipated by transfer to the receiving facility, according to Frew.

“Physicians tend to place their focus on getting the patient moved,” he says. “They should be concentrating on a critical analysis of risks and benefits, and the question of, ‘What can we do for this patient before we transfer them to reduce their risks from and during transport?’”

“It is important to note that where there is no hope for the patient at the sending facility and slim hope at the second, the transfer would still be justified under the EMTALA risk/benefit standard,” says Frew. Consider these practices to reduce legal risks involving patients transferred from the ED:

• Call in specialized help early.

“Hospital and ED policies should assure that privilege standards for EPs are high, that skills are verified, and on-call specialists are used liberally to assist in stabilizing and ‘packaging’ transfer patients,” says Frew.

The best way to assure that patients are adequately stabilized for transfer is to call in specialized help early, advises Frew. “While EPs are considered the experts at transfers, they also tend to consider themselves the Lone Ranger when facing a difficult case,” he says.

“It is not a failure to have more than one physician stabilizing a patient,” underscores Frew. “The EMTALA role of on-call specialists is specifically to back up the EP in these kinds of cases — albeit, they may not always appreciate that role.”

EPs in many rural facilities address the lack of reliable backup by resorting to helicopter transfers and relying on the flight crews to appropriately stabilize the patient for transfer, notes Frew. “In too many of those situations, the patient receives little true stabilizing care in the time necessary for the helicopter crew to arrive, making this a very dangerous management approach,” he says.

• Don’t understate risks of transfer.

EPs tend to consider transfers to be routine or of little risk or consequence, and minimize stated risks, says Frew.

“On the contrary, CMS [the Centers for Medicare & Medicaid Services] states that transfers are never benign events, and looks for disclosures of risks that physicians are uncomfortable bringing up, such as death or disability,” he warns.

EPs have typically recognized and considered these risks in making the decision to transfer, and mistakenly feel that they are doing the patient or family a kindness by not discussing ultimate risks, Frew says. “The issue here is that failing to disclose these ultimate risks can nullify the consent and result in an invalid transfer for both EMTALA compliance and liability purposes,” he explains.

The reason for transfer should state exactly what service or equipment the patient will get at the receiving hospital that is not available at the sending hospital, Frew advises. “The reason line on a transfer form is often filled in with one or two words, and those words are often very poor choices,” he says.

In many cases, the worst case scenario is death or total permanent disability, says Frew, and the risks statement should include these worst case or ultimate risks.

“There are always risks, so never put ‘none.’ I generally recommend putting at least ‘increased pain and discomfort,’” says Frew. “I have seen transfer forms for high-risk OB transfers with risks listed as ‘none,’ which is ignorant or lazy, or both.”

The more a jury can realize from the medical record that the EP was concentrating on the welfare of the patient and understands why the EP made the decisions that he or she did, the more likely they will side with the EP, adds Frew.

“The better the record, the less likely a suit will ever be brought,” he says. “The opposite is also true — a bad record or bad attitude will make a suit more likely. Checking boxes on an electronic record or template will not do it. We need a narrative that shows that the EP was involved, caring, and trying.”

• Consider policies not as optional, but as “carved in stone” rules that are literally enforced by CMS and often also by the courts.

An EP’s deviation from policy based on “professional judgment” is hard to justify, unless there is some specific recognition that there is an allowance for professional judgment or special circumstances, says Frew.

“Avoid language that might forbid the use of reasonable judgment or impose impossible standards,” he recommends. “I generally recommend ‘weasel words,’ as lawyers call them.”

For instance, an ED’s policy might state, “If, in the medical judgment of the transferring physician, delay for services available at this facility would jeopardize the health or safety of the patient, such determination shall be documented and appropriate transfer effected as expeditiously as possible.”

“By inserting the element of medical judgment, CMS or the jury is deprived of an arbitrary rule and must consider the reasonable judgment of the physician in evaluating the appropriateness of transferring without specific care,” says Frew. “While this language does not guarantee that CMS or a jury will agree with the decision, the rationale has been accepted in several EMTALA investigations,” he underscores.


For more information, contact:

  • Stephen A. Frew, JD, Loves Park, IL. Phone: (608) 658-5035. Fax: (815) 654-2162. E-mail: sfrew@medlaw.com.
  • John Tafuri, MD, FAAEM, Regional Director, TeamHealth Cleveland (OH) Clinic. Phone: (216) 476-7312. Fax: (440) 835-3412. E-mail: jotafu@ccf.org.
  • Jeanie Taylor, RN, BSN, MS, Vice President, Risk Services, Emergency Physicians Insurance Company, Roseville, CA. Phone: (530) 401-8103. Fax: (916) 772-7072. E-mail: jtaylor@epicrrg.com.