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At Your Defense

At Your Defense: Physician-at-Triage No Protection against EMTALA Violations, More Malpractice Vulnerability

Reyes, Carlo MD, JD

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Emergency Medicine News: July 2012 - Volume 34 - Issue 7 - p 6
doi: 10.1097/01.EEM.0000416057.44126.8d

    On its face, the concept makes sense: placing a doctor at triage would make things go faster. It would help the triage nurse. Sicker patients would be identified faster. Orders would be submitted at triage, expediting care. Patient satisfaction would go up, pleasing hospital administration. It's a win-win, right?

    Think again.

    Physician-at-triage is an emerging concept to combat ED crowding. Annual ED visits have ballooned from 96.5 million visits in 1995 to 115.3 million in 2005, and this influx of ED patients, coupled with the lack of inpatient beds, shrinking subspecialty panels, and sparse mental health services, has caused the ED crowding problem to rear its ugly head. Forced to find new ways to improve ED throughput, hospitals and ED groups started moving physicians and midlevel providers into triage to initiate the medical screening exam.

    The benefits of physician-at-triage to the hospital appear numerous. For one, it appears to satisfy the all-important EMTALA medical screening exam requirement. The Centers for Medicare & Medicaid Services, under the Emergency Medical Treatment and Active Labor Act, require all hospitals to provide ED patients with a medical screening exam to determine whether each patient has an emergency medical condition. If an emergency is found, the physician is obligated to stabilize the patient or transfer him if necessary. Breach of the duty to screen for an emergency or to stabilize an emergent condition under EMTALA can bring fines up to $50,000 per violation for the hospital and the physician separately, which would not be covered by a physician's malpractice insurance.

    One can see the incentive for a busy hospital to place a physician at triage to avoid an EMTALA medical screening breach. EMTALA imposes the duty of hospitals to screen all patients for an emergent condition, regardless of ability to pay, ethnicity, and insurance status. The federal courts also have interpreted EMTALA broadly, infusing other “requirements” not found within the black letters of the statute.

    The black letter law of EMTALA, for example, requires hospitals to provide all patients who present to its emergency department with a medical screening “within the capability of the hospital's emergency department.” Hospitals have been found in violation of EMTALA, however, when federal courts have ruled that the screening exam was so cursory that it could not have alerted the physician to an emergent condition, and therefore was not an appropriate medical screening exam. (Baker v. Adventist Health, Inc., 260 F.3d 987, 995 [9th Cir.] 2001.) Physicians must be adept at statutory interpretation as well as judicial analysis to truly understand EMTALA. Only then can physicians practice medicine responsibly within the legal boundaries of EMTALA.

    How does this lofty EMTALA legal analysis apply to emergency physicians? It is important to say that EMTALA is, by far, the most important federal statute to emergency physicians, and we need to be the EMTALA experts for our hospitals, our hospital administrators, our hospitalists, and our subspecialists. We need to be the protectors of our peers.

    EMTALA really is this important because it is not covered by malpractice insurance, and as a federal statute trumps state statutes that may have their own statutory caps on noneconomic damages. The same facts can be used for a medical negligence action or an EMTALA action, meaning every state malpractice claim theoretically can be moved to federal court if a court finds a federal (EMTALA) issue, which would, in turn, remove any state statutory cap protections.

    It's also important to analyze how EMTALA affects the physician-at-triage concept. Once a physician initiates a medical screening exam at triage, the screening process is started. EMTALA is at least satisfied by initiation of medical screening. The duty of the medical screen is not couched in terms of negligence, and EMTALA's intention, in fact, is not a federal malpractice statute. Rather, EMTALA was intended to prevent disparate screening, the so-called anti-dumping statute. A hospital has met EMTALA's screening requirements as long as it sees and screens all patients for an emergency medical condition in some impartial fashion, in accordance with our country's civil rights background.

    The problem occurs when a triage doctor encounters patient after patient in a busy emergency department, and writes orders on each patient in an attempt to expedite care. Similar to a triage nurse, a triage doctor sees a patient, does a cursory exam, and then writes orders, telling the patient another doctor will finish his care. What the doctor does not realize, however, is that this initiates the physician-patient relationship, a legal duty that creates the potential for negligence action, even if another doctor picks up the case.

    Hospitals may rely on the erroneous notion that physicians at triage will satisfy the screening duty of EMTALA, but as the court found in Baker, a screening exam could be so cursory that it breached this duty, especially if there is further delay or the patient later leaves and never completes his care. It is likely that a provider who initiates a screening exam at triage for any moderate to complex cases would be cursory under the Baker analysis and therefore an “inappropriate” medical screening exam within the statutory meaning of EMTALA.

    Next month: How physicians can work collaboratively with hospital administrators to ensure that ED processes do not create new EMTALA and malpractice liabilities.

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