Demanding Upfront Money from ED Patient?

Lawsuit could allege insufficient MSE

Some EDs are charging uninsured patients upfront fees for problems deemed nonemergent, with 88% of EDs reporting an increase in the number of “self-pay” patients seen in 2012, according to the Healthcare Financial Management Association. If a patient leaves the ED because of an inability to pay and later sues because a bad outcome occurred, will the emergency physician (EP) be liable?

“There are few obstacles to prevent an enterprising medical malpractice plaintiff’s lawyer from filing a lawsuit on the patient’s behalf. But whether the EP is ultimately found liable will turn on testimony concerning the specific facts of the case,” says Damian D. Capozzola, JD, an attorney with Crowell & Moring, LLP, in Los Angeles, CA.

Experts on both sides will offer opinions as to whether the determination that no emergency condition existed at the time was reasonable, in light of the objective data available to those in charge of the patient and subjective symptoms reported by the patient, he says.

“If a medical screening examination [MSE] initially showed no emergency but the patient subsequently presented within days or even hours complaining of a potential emergency situation, the ED would be obligated to reassess the situation,” Capozzola says. “An MSE is not an isolated event. It is an ongoing process.”

When a patient presents with symptoms suggesting the possible existence of an emergency condition, “the more prudent course may be to commence the MSE and treatment as though an emergency existed, until it becomes clear that no emergency exists,” he says.

Resources Are Key

If a patient with a bladder infection is screened out of the ED because of an inability to pay, he or she could end up with pyelonephritis and be admitted for intravenous antibiotics, when it could have been taken care of with three days of oral medications, says William C. Gerard, MD, MMM, FACEP, chairman and professional director of emergency services at Palmetto Health Richland in Columbia, SC.

Similarly, a patient with a sore throat could develop a peritonsillar intraoral abscess that needs to be surgically drained, which could have been managed with some penicillin or amoxicillin in the ED. “The patient might not get follow-up, just because you hand them a card,” Gerard adds. “There might be transportation and child care issues. People don’t want to take off work in this environment.”

If EDs are screening out patients after an appropriate MSE has revealed no emergency medical condition, “they need to have an extremely developed superstructure in the community to refer people to. That is really a key component,” says Gerard.

This might be the organization’s physician-owned practices or a Federally Qualified Health Center, says Gerard, “but patients need to be walking out of there with an appointment to see somebody, not fending for themselves, because many will never get seen anywhere.”

Primary care physicians might not offer same-day appointments for ill patients. “Until primary care can match the services we offer, the ED is the one-stop shop. We’re always there and available,” he says. “People don’t want to be seen in four days when they’re sick.”

Insufficient MSE

According to a 2010 study from the Rand Corporation, approximately 17% of ED visits could be treated at retail medical clinics or urgent care centers, potentially saving $4.4 billion annually in health care costs.1

“I do not believe that referring a patient with a nonemergent condition to a more appropriate level of care, in and of itself, offends EMTALA or constitutes malpractice,” says Edward Monico, MD, JD, assistant professor in the section of emergency medicine at Yale University School of Medicine in New Haven, CT.

However, liability can arise if a plaintiff alleges the MSE failed to uncover an emergency that was, in fact, present at the time of presentation and the patient was “turned away” in the face of this emergency, says Monico.

EDs face potential EMTALA violations if they screen patients out without an appropriate MSE, which is not equivalent to triage, warns Gerard. “Ruling out an emergency medical condition could involve a lot of tests and diagnostic procedures,” he says. “It isn’t as simple as just saying, ‘Well, you probably shouldn’t be here. Go see your doctor down the street.’”

EPs should remember that “EMTALA’s notion of an MSE can be quite broad,” warns Monico. “Liability could attach even if the emergency could not be readily discovered at triage, but required an evaluation conducted in the emergency department.”

For instance, if a patient who complained of unilateral leg pain for several days was triaged as nonemergent, but later suffered a pulmonary embolism (PE) caused by a deep venous thrombosis (DVT), a lawsuit could allege that an ultrasound performed in the ED would have revealed the DVT and anticoagulation could have prevented the PE.

“The patient, in this instance, could allege that the MSE under EMTALA was insufficient, and a medical emergency did, in fact, exist at the time of presentation,” says Monico.

Capozzola is unaware of any lawsuits involving EPs screening out apparently nonemergent patients because of inability to pay, who later turned out to have had an emergency medical condition, but says he expects to see a case within the next year alleging that an ED required payment from someone with an emergency situation, resulting in an adverse cascading series of events ending in a lawsuit.

“It is somewhat surprising that there seem to be few, if any, reported judicial opinions concerning this,” he says. “I expect we will see these issues trickle through the courts and start to surface in appellate opinions in coming years.”

This will provide important guidance to EDs on where the legal boundaries are, says Capozzola. “Until we get more clarity, it may be wise to be liberal in providing MSEs, on the theory that an ounce of prevention is worth a pound of cure,” he says.


1. Rand Corporation. “Some Hospital Emergency Department Visits Could Be Handled by Alternative Care Settings.” September 7, 2010. http// (Accessed 01/25/13).


For more information, contact:

  • Damian D. Capozzola, JD, Crowell & Moring LLP, Los Angeles, CA. Phone: (213) 443-5503. E-mail:
  • Edward Monico, MD, JD, Department of Surgery, Section of Emergency Medicine, Yale University School of Medicine, New Haven, CT. Phone: (203) 785-4710. E-mail:
  • William C. Gerard, MD, MMM, CPE, FACEP, Chairman/Professional Director, Emergency Services, Palmetto Health Richland, Columbia, SC. Phone: (803) 434-3319. E-mail: