Screening Out of ED? There Are Legal Risks
Screening Out of ED? There Are Legal Risks
Lawsuit possible even if no EMTALA violation
Is your ED considering screening out non-critical patients by giving medical screening examinations (MSEs), as required by the Emergency Medical Treatment and Labor Act (EMTALA), then giving patients a choice of seeing a primary care doctor or paying a fee?
"This practice could lead to an EMTALA violation if some patients receive more thorough screening exams than others," warns Johanna Novak, JD, an attorney at Foster Swift Collins & Smith in Marquette, MI.
If the EMTALA-required MSE is performed but does not detect an emergency medical condition, the hospital would not necessarily have violated EMTALA but could still face a medical malpractice lawsuit, she adds.
"Courts have held in the past that a hospital that conducts an appropriate medical screen, yet fails to detect or misdiagnoses an emergency medical condition is not liable under EMTALA, even if the hospital is negligent and liable under medical malpractice laws," says Novak.
Inadequate MSE?
Richard D. Watters, JD, an attorney with Lashly & Baer in St. Louis, MO, says regulators could determine that the screening examination was inadequate and did not reveal an existing emergency medical condition as defined by EMTALA.
"So by asking for payment or having the patient see a primary care physician at a later scheduled appointment, you violate EMTALA's requirement to provide stabilizing treatment," he says.
There is also the risk that even though the ED provided an appropriate screening exam to satisfy EMTALA requirements, it failed to uncover a medical condition that a more complete examination would have uncovered, says Watters.
"You can do these things to the satisfaction of EMTALA requirements, but still do them negligently," Watters says. "In this case, the patient can sue for malpractice even though there would be no claim for violating EMTALA obligations."
If the original MSE was competently performed and no emergency condition was found to exist, then the ED should not be liable if the patient's condition changed at a later time, says Watters. "The only exception would be if the physician knew, or should have known, that whatever condition the patient did have at the time of the MSE was likely to get worse before the patient could see a primary," he says.
Incomplete MSE Often Cited
A rushed or incomplete MSE is one of the most common citations under EMTALA, according to William R. Forstner, JD, an attorney with Smith Moore Leatherwood in Raleigh, NC.
There are also potential liability risks involving harm arising from a patient's "non-emergent" medical or psychiatric concerns, says Forstner. "Even if a hospital and physician comply with all applicable EMTALA regulations, some non-emergent patients still face risk of harm from their injury or disease," he says.
A patient who leaves the ED and deteriorates, leading to a bad outcome, potentially avoidable medical treatment, or death has a claim against the emergency physician and the hospital if the conduct falls outside of the standard of care, he says.
"Depending on the facts of the case, a jury often will not feel that 'the patient was not suffering from an emergency' is a sufficient explanation or defense," Forstner says.
Sources
For more information, contact:
William R. Forstner, JD, Smith Moore Leatherwood, Raleigh, NC. Phone: (919) 755-8714. E-mail: [email protected].
Johanna Novak, JD, Attorney, Foster Swift Collins & Smith, Marquette, MI. Phone: (906) 226-5501. E-mail: [email protected].
Richard D. Watters, JD, Attorney at Law, Lashly & Baer, St. Louis, MO. Phone: (314) 436-8350. E-mail: [email protected].
Is your ED considering screening out non-critical patients by giving medical screening examinations (MSEs), as required by the Emergency Medical Treatment and Labor Act (EMTALA), then giving patients a choice of seeing a primary care doctor or paying a fee?Subscribe Now for Access
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