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At Your Defense: Think You Know All about EMTALA? Think Again

Reyes, Carlo, MD, JD

doi: 10.1097/01.EEM.0000544436.99204.ad
At Your Defense

Dr. Reyesis the vice chief of staff and the assistant medical director of emergency medicine at Los Robles Hospital in Thousand Oaks, CA. He is also a clinical professor in emergency medicine and pediatrics at Olive View/UCLA Medical Center, a health law attorney with Boyce Schaeffer Mainieri, LLP, in Oxnard, CA, and the founder and CEO of Health-e-MedRecord, a patient-centered and emergency physician-designed EHR solution. (www.health-e-medrecord.com.) Follow him on Twitter @carloreyesmdjd, and read his past articles athttp://bit.ly/EMN-Defense.

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The largest EMTALA settlement in the controversial statute's 30-year history has had a surprising effect: The number of EMTALA fines have doubled.

The Office of Inspector General (OIG) reported just nine violation settlements in 2017 but eight this year from January to May. This uptick in enforcement may be the OIG's renewed focus on regulation because of the AnMed Health case, a $1.295 million settlement for failure to stabilize an emergency medical condition. Thirty-six patients at the Anderson, SC, hospital deemed by the emergency physician to have a psychiatric emergency were not admitted to the hospital's inpatient psychiatry unit, but were boarded in the emergency department (one for 38 days) until transport to the county's inpatient psychiatric facility. (OIG, June 23, 2017; http://bit.ly/2tzhN6E.)

Multiple questions arise from this settlement. Can EPs identify and stabilize a psychiatric emergency? (OIG: No.) Can a hospital policy flag only voluntary psychiatric admissions to their inpatient psychiatric unit and deflect involuntary ones for transfer to the county's psychiatric facility? (OIG: No.) Does EMTALA require on-call psychiatrists to consult on involuntarily held psychiatric patients in the ED? (OIG: Yes.) Now consider the following cases from this year.

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No Medical Screening Exam

Case: An ED nurse directed a 58-year-old patient complaining of blurry vision to a local ophthalmologist. The patient presented to another hospital later that day and received stabilizing treatment.

Take-Home Message: ED nurses should not direct patients away from the ED, and don't let them talk you into this. Beware the “MD aware” nursing documentation.

Case: An EP discharged a 49-year-old man with multidrug ingestion and suicidal ideation four hours after presentation. The patient killed himself four days later.

Take-Home: Danger-to-self determinations should be conducted by psychiatrists and other mental health specialists. Intoxication at the time of suicide attempt does not suggest no risk in determining suicidality. A hospital policy delineating the process for acute psychiatric evaluation based on an EP's initial evaluation protects the hospital.

Case: ED staff diverted an ambulance in the ambulance bay transporting a patient with uncontrolled hypertension because they believed the hospital was on diversion.

Take-Home: The EMTALA obligation for a medical screening exam starts within 250 yards of the main buildings of a hospital, and may include roads and parking structures. Diverting patients within that space violates the mandate to provide a medical screening exam.

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Failure to Stabilize

Case: After consulting the on-call cardiologist by phone, an EP initiated transcutaneous pacing for a patient with unstable bradycardia. He then intubated the patient after his condition worsened. He was transferred to a nearby hospital, and later died after a pacemaker was placed.

Take-Home: Stabilizing or definitive treatment within an on-call consultant's scope should be provided to unstable patients before transfer.

Case: An EP appropriately diagnosed a patient with perforated viscus, but the on-call surgeon recommended transfer to a hospital that previously treated her. The transfer was made almost four hours later, and she was in septic shock. She died that day.

Take-Home: An appropriate transfer includes the EP's risk-benefit analysis that must be conducted and repeated if a delay in transfer affects this analysis.

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Transfer Failures

Case: An EP transferred two patients to another hospital to receive stabilizing care. The neurosurgical patient had a four-hour delay before being transferred 122 miles; the obstetrics patient had a 105-minute delay before being transferred 80 miles. The clinical condition of both deteriorated before the patients' arrival at the receiving hospital.

Take-Home: An appropriate transfer includes the EP's risk-benefit analysis that must be conducted and repeated if a delay in transfer affects this analysis.

Case: One hospital contacted another to accept a patient with a ruptured ectopic pregnancy. The hospital said it did not accept ED-to-ED transfers, which was repeated by the ED staff and the on-call gynecologist.

Take-Home: Hospital processes that do not reflect current EMTALA obligations create liability. On-call consultants also must be well-versed in such obligations.

Case: An ED nurse told a patient in labor that the hospital did not have obstetrics services, and said she could wait to be transferred or drive herself to another facility 30 minutes away.

Take-Home: ED nurses should not direct patients away from the ED, and don't let them talk you into this. Beware the “MD aware” nursing documentation.

Case: An on-call urologist refused to accept the transfer of a 13-year-old with testicular torsion.

Take-Home: Stabilizing or definitive treatment within an on-call consultant's scope should be provided to unstable patients before transfer.

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Looking Forward (Dreading)

I predict a trend of increasing EMTALA enforcement for hospitals in light of the OIG raising the violation penalty from $50,000 to $103,139 for hospitals with on-call physicians and more than 100 beds. An EP's decision-making directly affects a hospital's vulnerability, so EPs must understand how the OIG interprets EMTALA for conducting a medical screening exam and stabilizing an emergency medical condition.

Trends to watch for:

  • Patient harm is not a requirement (in contrast to a medical negligence analysis).
  • The OIG may infer a hospital's financially-motivated decisions, triggering an EMTALA analysis.
  • Hospitals continue to commit the same types of EMTALA violations.
  • EPs continue to be in the middle of this mess, whether we like it or not.
  • Phone management by an on-call consultant continues to be an EMTALA trap.
  • EPs and emergency nurses need regular EMTALA training and updates.
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