EMTALA Q&A

This column is an ongoing series that will address reader questions about the Emergency Medical Treatment and Active Labor Act (EMTALA). If you have a question you’d like answered, contact Staci Kusterbeck, Editor, ED Management, 280 Nassau Road, Huntington, NY 11743. Telephone: (631) 425-9760. Fax: (631) 271-1603. E-mail: StaciKusterbeck@aol.com.

(Editor’s note: A response to a question addressed in the May 2001 issue of ED Management generated significant debate among readers and EMTALA experts. Below, we explore this controversial topic further.)

Question: During the night, police officers frequently bring individuals to the hospital for screening of blood alcohol levels. Our lab is staffed with only one person and is locked, which makes it difficult to access. If the officer brings the person to the ED for the blood draw, are we required to do a medical screening examination (MSE)?

Answer: "The primary issue is whether or not the individual’s presence at the ED constitutes a request for examination or treatment that triggers the hospital’s duty under EMTALA to provide an MSE," contends Robert A. Bitterman, MD, JD, FACEP, director of risk management and managed care for the department of emergency medicine at Carolinas Medical Center in Charlotte, NC.

The law holds that the request for the MSE can come from anyone, not just the patient, he stresses. "Thus, the police officer’s request for blood alcohol testing may itself be sufficient to constitute a request," he says. Also, he notes that the Health Care Financing Administration (HCFA) views alcohol intoxication to be a "sufficiently severe medical symptom to warrant the label emergency medical condition’" [59 Fed Reg 32107 (1994)] .

Thus, an intoxicated individual has an emergency medical condition until the hospital proves otherwise, concludes Bitterman. "Furthermore, while legally debatable, the Health Care Financing Administration believes that anyone coming to the ED for tests must be provided an MSE unless the patient voluntarily withdraws the request for the examination," he says.

Police bring people to the ED to obtain a blood alcohol level because they believe the individual to be intoxicated, but they don’t know for sure, says Bitterman. "Many emergency conditions mimic alcohol intoxication, including hypoglycemia, cerebral hypoxia, head injury, metabolic abnormalities, or other toxins," he warns.

Neither the hospital nor the police should automatically presume alcohol intoxication to be the cause of the patient’s condition, Bitterman emphasizes. "The emergency physician should perform an MSE in these cases," he says. However, the patient can refuse the offered MSE by the ED physician and request only that blood be drawn and provided to the police officer, says Bitterman. "But only competent individuals can refuse the MSE, so the ED physician [not a nurse or registration clerk] must first ascertain that the patient is competent to refuse," he underscores.

If the individual is clinically too intoxicated to make an informed decision, then the physician must keep that person in the ED until he or she is competent enough to make rational decisions, Bitterman adds. He warns that these are clearly high-risk individuals. "To not offer them an examination or determine if they are competent to refuse an exam is a major risk management mistake," he says. "If you offer them an exam and they refuse, and are competent to do so, then EMTALA no longer applies and you can proceed to draw the blood."

Finally, Bitterman rejects the notion that EMTALA does not apply if the individual does not have an emergency medical condition. "The law requires the hospital to provide an MSE to anyone presenting requesting examination or treatment for a medical condition’; it does not say for an emergency medical condition,’" he explains. "Only after the hospital performs the MSE and the MSE determines the patient does not have an emergency medical condition, then and only then does EMTALA not apply further."

Bitterman acknowledges that if the patient denies requesting or refuses the MSE, then you do not have to supply one. However, you should offer one and document the patient’s refusal and competence to refuse, he cautions. "Alcohol-related incidents are an extremely common source of litigation against hospitals," says Bitterman. "Common sense should prevail."

Sources

For more information about EMTALA, contact:

• Robert A. Bitterman, MD, JD, FACEP, Department of Emergency Medicine, Carolinas Medical Center, P.O. Box 32861, Charlotte, NC 28232-2861. Telephone: (704) 355-5291. Fax: (704) 355-8356. E-mail: rbitterman@carolinas.org.

• Stephen Frew, JD, Frew Consulting Group, 6072 Brynwood Drive, Rockford, IL 61114. Telephone: (815) 654-2123. Fax: (815) 654-2162. E-mail: sfrew@medlaw.com.