Law & Medicine

EMTALA – statutory law


 

This is the first of a two-part series.

Question: Which of the following statements regarding the Emergency Medical Treatment & Labor Act (EMTALA) is correct?

A. Deals with the standard of care in emergency medicine.

B. Provides safeguards for uninsured and nonpaying patients with an emergency medical condition.

C. Mandates uniform screening and treatment stabilization prior to transfer, irrespective of the hospital’s capability.

D. Is mostly directed at hospitals and emergency department staff doctors, but excludes on-call physicians.

E. Violations can result in fines, loss of Medicare provider participation, or even imprisonment.

Answer: B. In 1985, the CBS investigative news show “60 Minutes” ran an exposé on abuses in the emergency departments of U.S. hospitals, featuring the case of Eugene Barnes, a 32-year-old man brought to the Brookside Hospital emergency department (ED) in San Pablo, Calif., with a penetrating stab wound.

Dr. S.Y. Tan

Dr. S.Y. Tan

The on-call neurosurgeon allegedly declined to come in, and three hospitals refused to accept the patient in transfer. The patient was finally sent to San Francisco General 4 hours later but expired.

In another case, William Jenness, injured in an auto accident, died after a delayed transfer to a county hospital, because the original hospital required a $1,000 deposit in advance before initiating treatment.

In response to the widespread perception that uninsured patients were being denied treatment in the nation’s emergency departments, Congress enacted the Emergency Medical Treatment & Labor Act.1

Originally referred to as the “antidumping law,” EMTALA was designed to prevent hospitals from transferring financially undesirable patients to public hospitals without providing a medical screening examination and stabilizing treatment prior to transfer.

The purpose and intent of the law is to ensure that all patients who come to the ED have access to emergency services, although the statute itself is silent on payment ability.

EMTALA is not meant to replace or override state tort law, and does not deal with quality of care issues that may arise in the emergency department. Over the 30-year period since its enactment, EMTALA has received mixed reviews, with one scholar complaining that the statute is sloppily drafted and the premise of the statute, silly at best.2

EMTALA defines an emergency medical condition as:

1. A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances, and/or symptoms of substance abuse) such that the absence of immediate medical attention could reasonably be expected to result in placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, cause serious impairment to bodily functions, or result in serious dysfunction of any bodily organ or part.

2. With respect to a pregnant woman who is having contractions, there is inadequate time to effect a safe transfer to another hospital before delivery, or that transfer may pose a threat to the health or safety of the woman or the unborn child.3

Whether an emergency medical condition exists is determined by a medical screening exam (MSE). EMTALA is about a process directed at the well-being and safety of all patients with a medical emergency who come to the ED, defined as being licensed by the state or held out to the public as a place that provides care for emergency medical conditions. Hospital-based outpatient clinics that handle less than one-third of emergency visits and physician offices are exempt.

All patients who present to the ED seeking treatment are entitled to an MSE, and EDs are required to post such notification on their premises. A triage nurse may not be qualified to conduct the MSE unless he or she possesses special competencies, and has approval from the medical staff and the hospital’s governing body.

It is important that the MSE be documented soon after the patient’s arrival to determine if the medical condition warrants immediate treatment. It is definitely not acceptable to delay performing an MSE while awaiting information on insurance coverage, and one cannot “hold” the patient and delay stabilizing treatment because of the carrier’s insistence on using only certain approved facilities.

EMTALA requires that the screening exam be “appropriate,” but the statute does not define the term except to note that it is to be “within the capability of the hospital’s emergency department.” However, it is generally recognized that triage alone is insufficient, and the screening exam should be based on the patient’s symptoms and performed by a qualified person.

The important point is that it is uniformly applied, without discrimination, to all who seek treatment in the ED. The hospital itself is expected to have in place policies addressing the broad aspects of the screening process in a nondisparate manner.

The second key issue under the EMTALA statute concerns treatment and transfer.4 If an emergency medical condition exists, treatment must be provided until the emergency is resolved or stabilized.

Under the law, a patient is considered stable for transfer (or discharge) if the treating physician determines that no material deterioration is reasonably likely to occur during or as a result of the transfer between facilities. A receiving hospital is obligated to report any individual who has been transferred in an unstable condition in violation of EMTALA.

However, in the event the hospital does not have the capability to stabilize the emergency medical condition, EMTALA mandates an appropriate transfer, under prescribed conditions, to another hospital whose specialized capabilities obligate it to cooperate. The ED physician in the sending hospital will directly request acceptance of such a transfer. If the patient is unstable, the physician must certify that the medical benefits expected from the transfer outweigh the risks, unless the patient insists on a transfer in writing after being informed of the hospital’s obligations under EMTALA and the risks of transfer.

Furthermore, the transferring hospital must: 1. provide ongoing care within its capability until transfer to minimize transfer risks, 2. provide copies of medical records, 3. confirm that the receiving facility has space and qualified personnel to treat the condition and has agreed to accept the transfer, and 4. ensure that the transfer is made with qualified personnel and appropriate medical equipment.

On-call physicians at both transferring and accepting facilities are also subject to EMTALA. The U.S. Department of Health & Human Services’ Office of Inspector General (OIG) has promulgated rules regarding on-call physicians, even touching on reimbursement.

The American College of Emergency Physicians subscribes to the view that hospitals, medical staff, and payers share an ethical responsibility for the provision of emergency care, acknowledging that EDs require a reliable on-call system that provides for the availability of medical staff members for consultation and participation in the evaluation and treatment of emergency patients.5

Penalties for EMTALA violations include fines up to $50,000 per violation, and/or nullification of Medicare provider agreements. There is a 2-year statute of limitations for civil enforcement of any violation,6 carried out by the OIG and the Centers for Medicare & Medicaid Services (CMS).

A receiving facility, having suffered financial loss as a result of another hospital’s violation of EMTALA, can bring suit to recover damages, and patients may bring private lawsuits against hospitals, though not against physicians. EMTALA, being a civil rather than a criminal statute, does not impose any prison terms.

Investigations and citations by the OIG/CMS are common, with about half of all hospitals subjected to EMTALA investigations and a quarter receiving a violation citation over a recent 10-year period.

However, a recently published study covering 2002-2015 found that, despite 40% of investigations ending up with EMTALA violations, only 3% of investigations triggered fines – and none resulted in suspension of Medicare provider participation.7

There were a total of 192 settlements, or an average of 14 per year for the 4,000 hospitals in the United States. Most were for failing to provide screening (75%) and stabilization (42%). The vast majority of violations affected hospitals, and only eight physicians were involved.

Fines against hospitals and physicians totaled $6,357,000 (averages, $33,435 and $25,625, respectively). Patient dumping attributable to insurance or financial discrimination accounted for 15.6% of settlements.

References

1. 42 USC §1395dd et seq.

2. Chest. 2015 Jun;147(6):1691-6.

3. 42 USC §1395dd(a).

4. 42 USC §1395dd(b)(c).

5. “EMTALA and On-call Responsibility for Emergency Department Patients,” American College of Emergency Physicians.

6. 42 USC §1395dd(d).

7. West J Emerg Med. 2016 May;17(3):245-51.

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

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