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Emergency Medicine News:
doi: 10.1097/01.EEM.0000418675.26601.bc
At Your Defense

At Your Defense: The Double Whammy: Avoiding EMTALA and HIPAA Violations

Reyes, Carlo MD, JD

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Dr. Reyes is an assistant professor of pediatrics and a clinical instructor of emergency medicine at Olive View/UCLA Medical Center, a health law attorney with Boyce Schaeffer, LLP, in Oxnard, CA, and a founder and the CEO of healthelaw.com, which provides medical-legal education for doctors starting in medical school, through residency training, and beyond.

Sometimes a proposed solution may seem to fix an immediate problem, but the “solution” only creates a bigger problem later, like I explained last month about the physician-at-triage dilemma. Moving a physician into triage creates the physician-patient relationship immediately, satisfying one element of negligence. Concomitantly, this initiates the screening duty of EMTALA, but may not satisfy the screening duty of EMTALA. Double whammy.

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All at once, the tort of medical negligence and the EMTALA federal cause of action are immediately at play. Once there is a federal cause of action, any state-based negligence claim is trumped, and any state cap for noneconomic damages goes away. In other words, one false step and big money is at stake. This hurts the hospital and the physician. Certainly, the originators of the physician-at-triage process did not intend for these liabilities to occur.

Ineffective ED processes, although created with good intention, are usually implemented without adequate collaboration between administration and the ED group. ED groups that fail to communicate with administration passively allow the delivery of substandard medical care. This will eventually threaten the stability of the ED contract. Open channels of communication between physicians and administration enable valuable clinical input to be implemented into ED processes to allow for delivery of high-quality medical care. Emergency physicians must incorporate evidence-based medicine with risk management principles. Three risk management building blocks in particular should be in place to integrate an effective ED process into the workplace.

An emergency physician group must first utilize a risk management program for its physicians. ED groups do not practice in a vacuum, and each emergency physician's negligent actions will transfer risk to the hospital and its medical staff. Each malpractice action means the ED group will have more difficulty retaining malpractice insurance. More malpractice actions suggest that the ED group may not be meeting the standard of care. Once the medical staff loses its faith in the ED group, the group's hold on the ED contract becomes more tenuous. A risk management program should peer-review high-risk cases using evidence-based medicine, integrate a best-practices approach to protocols and practice behaviors, and encourage proven documentation techniques to mitigate litigation risk, among the many other risk management tools.

Emergency physicians also need to assume the role of protector for all the potential liabilities a hospital and its medical staff may incur. This is almost a fiduciary relationship, akin to that between a physician and patient or between an attorney and client. Emergency physicians are in the best position to understand the legal relationship that accompanies each patient who enters the hospital through the ED.

We need to determine, for example, when a specialist is federally mandated to come into the ED to treat a patient or risk an EMTALA violation. We need to ascertain when an admission or an imaging test is medically necessary, for fear of RAC audits. We also need to prevent techs, scribes, and other patients from taking pictures and videos in the ED or risk HIPAA violations. As if that weren't enough, another example: We need to implement processes that ensure proper attending supervision of medical residents at teaching hospitals or risk incurring an improper billing or false claims violation. Protecting the hospital and medical staff in this way strengthens the relationship between administration and the ED group.

Designating a physician leader to be the risk management specialist and educator for the ED group and act as a liaison for the hospital is critical for the ED group's success. This person should act as the primary contact for the hospital risk manager and attend hospital meetings that relate to risk management. The ED risk management specialist should also have a close relationship with the medical malpractice insurance company. New ED processes to be implemented should be considered for review by the ED group's malpractice insurance company's risk manager. These measures create the image of an ED group that is forward-thinking, risk-minimizing, intelligent, and proactive.

What is the solution to the physician-at-triage dilemma? It must be tailored to the strengths of the individual hospital, its resources, and medical staff. The ED group physician leader also needs to recognize the practice barriers that may limit a particular ED process or even doom a process for failure. Once the physician leader recognizes these barriers, the ED group can begin to address them with administration in a collaborative manner.

One solution, for example, could be preventing patients “triaged” by the physician from returning to the waiting area and being processed into a separate area to prevent them from prematurely leaving the ED. Many other solutions are possible. Third-party risk management consultants can help administrators and ED groups create and implement processes that work by offering a bird's-eye view of the problem.

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© 2012 Lippincott Williams & Wilkins, Inc.

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