The EMTALA law renders many common practices among physicians and hospitals illegal, even though physicians may think that what they are doing is prudent or simply good business. Physicians may view their actions as harmless, but substantial fines may result. Here are 13 common errors by physicians on call to emergency departments (ED) and the situations pertinent to each.
When asked to come in to see an ED patient:
- Debating with the ED physician over the necessity of coming in. Once the request is made to come in, the duty attaches. In addition, EMTALA places the decision power with the physician with “eyes on” the patient.
- Refusing to come in and suggesting that the patient be seen by another specialist. The on-call physician must respond to all ED requests. A neurosurgeon’s refusal to come in based on a bona fide belief that another specialist would be better suited to the patient’s needs still will be cited.
- Refusing to come in and ordering the patient transferred to another facility because of severity or scope of condition. EMTALA requires the requested physician to respond. Phone evaluation is not sufficient if the ED physician asks the specialist to come in to see the patient. If the patient is too serious after specialty evaluation, the duty of making the transfer belongs to the specialist. If the ED physician asks only for a phone consultation, then merely giving a phone consult is not a violation, but should be documented by the ED physician as a phone consultation.
- Instructing the ED physician to admit or to run various testing and delaying coming in to see the patient until a later time. EMTALA requires prompt response within a “reasonable” time. These times are not extended by necessary or prudent testing or by admission. Delays in seeing admitted patients often lead to violations for failure to promptly stabilize the patient.
- Declining the patient based on the patient’s apparent needs exceeding the physician’s scope of practice. EMTALA requires physicians to render care within their privileges, not their scope of usual practice. The physician specialist must come in and justify in writing any transfers and effect the transfer.
- Declining the patient because of the payer plan status or self-pay status. EMTALA requires services to be rendered regardless of means or ability to pay. Where evaluation or stabilizing care, including surgery, is not complete, EMTALA prohibits seeking advance approval from insurance companies or plans. (EMTALA does not, however, require the payer to make payment for the services.)
- Declining the patient because he or she was previously discharged from the physician’s practice for prior litigation or non-compliance. While the patient has the right to decline the on-call physician, the on-call physician does not have the right under EMTALA to decline the patient.
- Declining the patient on the basis that the specialist physician is “not interested” in a case of that type. The on-call specialist is required to respond to all patients presenting.
When contacted by another hospital seeking transfer of a neurosurgery patient:
- Declining the patient because the neurosurgeon at the first hospital is not available or turned down the patient improperly. As noted above, there is a duty to accept. Where it appears the first hospital’s neurosurgeon may have violated EMTALA by not being available when required for call or refused to take the patient, the receiving hospital is required by EMTALA to report the incident to federal authorities within 72 hours.
- Declining the transfer because the destination hospital is not the closest, or the designated center, or is not within the hospital’s indigent care zone under local law. EMTALA requires that patients be accepted from anywhere within the boundaries of the United States, including Guam and Puerto Rico.
When asked to come in to see an ED patient or an in-house patient on an emergency consult to rule out an emergency medical condition or provide stabilizing care:
- Declining because the patient is aligned with another neurosurgeon or physician who is unavailable or declined to come in. On-call obligations are not limited to unaligned patients. The U.S. Supreme Court, the statute itself and the leading cases under the Supreme Court’s decisions indicate that the EMTALA requirements regarding stabilization, on-call, transfer, and acceptance are house-wide obligations and not limited solely to the ED.
When covering more than one hospital on call:
- Asking that a patient be sent to the hospital where the on-call physician is currently seeing patients instead of going to the patient’s location. EMTALA requires all care to be rendered in the hospital where the patient presents. The only circumstances where the request to transfer would be valid would be if the needs of the patient could not be met in timely fashion where the patient presented, the requested transfer would allow more timely intervention for patient safety and response of the on-call physician was not possible (i.e., currently involved in surgery). Thorough documentation would be important.
When contacted by another hospital that is without neurosurgery capability regarding transfer of a hospitalized patient and neurosurgical evaluation or definitive care may be necessary to stabilize the patient:
- Declining the requested transfer when a bed could be made available at the destination hospital where the neurosurgeon is on-call. EMTALA requires any hospital with specialized capabilities that are greater than those of the sending hospital to accept all such patients in transfer, regardless of their means or ability to pay. The on-call physician is deemed to be within the capabilities of the hospital and must accept unless there literally is not one more space to put the patient, or some other circumstance, such as non-functional equipment, makes it impossible to deliver the needed service.
Stephen A. Frew, JD, practices law in Rockford, Ill., www.medlaw.com.