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LWBS Patients Pose Risks for EDs Under EMTALA

By Stacey Kusterbeck

Violations of the Emergency Medical Treatment and Labor Act (EMTALA) are possible if ED patients leave without being seen (LWBS). Patients who leave the ED before evaluation “are one of the major sources of EMTALA citations, due to CMS claiming the patients were denied their federal right to a medical screening examination,” according to Robert A. Bitterman, MD, JD, FACEP, president of Bitterman Health Law Consulting Group.

Mary C. Malone, JD, a partner at Hancock Daniel in Richmond, VA, offers several approaches to help leaders prevent problems with EMTALA:

At registration, advise patients they are entitled to emergency care and should wait to be seen before leaving the ED waiting room. Malone says the message can be as simple as: “You have a right to receive emergency treatment. We strongly encourage you not to leave the ED until you see a provider who can assess your condition. We will work to connect you with a provider as soon as possible.”

Provide a pamphlet that explains the patient’s EMTALA rights and describes how patients are triaged to ensure those with the most serious medical conditions are seen first. Once triaged, patients should know they will be taken back for a medical evaluation in the order assigned at triage.

The pamphlet also can state that before a patient leaves the ED, he or she should check with registration. “If a patient tells registration that they intend to leave without being seen, the patient should be advised that there are risks of leaving prior to evaluation, and the patient should be urged to stay,” Malone says.

If the patient leaves the ED regardless of this, providers should document the conversation with the patient regarding the risks of leaving and the advice to stay. Malone offers this example of good documentation: “At [insert time], patient said they were tired of waiting to be seen and intended to leave the hospital. I apologized for the wait and urged the patient not to leave before seeing a provider. Doing so could create risks to the patient’s health and well-being. Despite the warning, the patient left the ED at [insert time].”

The EMTALA statute, regulations, and CMS guidance documents all acknowledge there are cases of “voluntary withdrawal of request for screening and treatment.”1 In those cases, EMTALA does not apply. Emergency providers cannot just restrain everyone who wants to leave without an evaluation. “EMTALA does not authorize you to hold someone prisoner. But should anything go wrong, you may find yourself having to defend against an EMTALA situation,” says Todd B. Taylor, MD, FACEP, a Phoenix-based EMTALA compliance consultant.

This can be an uphill battle, even if the ED fully complied with EMTALA. “Unlike other types of legal situations, under EMTALA you must often prove the negative,” Taylor explains.

For example, the ED staff may be required to prove they did not encourage the patient to leave. “There is no presumption of innocence under EMTALA,” Taylor says. “Once CMS investigates and cites a hospital and/or physician, you are presumed guilty and must prove your innocence.”

It might be difficult for providers to defend themselves against an alleged EMTALA violation. Thus, hospitals often choose not to challenge citations, and simply take corrective actions. “The select few cases that do end up in federal administrative court are more often ruled in favor of the defendants,” Taylor notes. “This is likely because only the most clear-cut, defensible cases get that far.”

CMS’ EMTALA interpretive guidance specifically states that if an individual leaves a hospital “on his or her own free will (no coercion or suggestion), the hospital is not in violation of EMTALA.”1 “The bottom line is that documentation is the best weapon against both EMTALA and a malpractice lawsuit,” Taylor says.

CMS is aware that demands on EDs are causing inordinately long waits. “As long as everyone waits equally, based on triage criteria, there is no real EMTALA issue — even if something goes awry in the waiting room,” Taylor says. “However, medical liability may be a different situation.”

REFERENCE

1. 42 USC §1395dd(b)(2); 42CFR§489.24(d)(3); CMS State Operations Manual, Appendix V – Interpretive Guidelines (Rev. 191, 07-19-19).