Chapter 13 Emergency Transfer Laws
INTRODUCTION
Obligations for Physicians
Obligation to Screen
EMERGENCY MEDICAL CONDITION
Women in Labor
OBLIGATION TO TREAT UNTIL STABILIZED
Facility Capability
Futile Treatment
Application of Laws When Patient Is Not Transferred
RESTRICTIONS ON TRANSFER
Federal Transfer Requirements
Nevada Admission; Transfer; and Discharge Requirements|
Certification that the Benefit of Transfer Outweighs the Risk
PATIENT REQUEST, REFUSAL, OR DEMAND FOR TRANSFER
Transfer or Discharge Against Medical Advice
HOSPITALS OBLIGATION TO ACCEPT TRANSFERS
NOTICE AND RECORD-KEEPING REQUIREMENTS
MANDATORY REPORTING REQUIREMENTS
LEGAL PENALTIES
HOSPITALS WITHOUT EMERGENCY DEPARTMENTS
BED SHORTAGES
PRE-HOSPITAL CARE
LEGAL PROTECTION FOR PHYSICIANS
Federal Immunities
Protection for Whistleblowers
MANAGED CARE PATIENTS
Payment for Emergency Services
EMERGENCY TRANSFER & MEDICAL STAFF ON-CALL REQUIREMENTS
Physician Obligations to Serve On-Call
Mandatory On-Call Policies
Potential Defenses to Alleged Violations
Required Response Time
Obligations of Physicians Taking Call for Other Physicians
Obligations of Physicians to Accept Transfers
Follow-Up Treatment
Standby Emergency Department
INTRODUCTION
This section includes consideration of the provisions of the federal Emergency Medical Treatment and Active Labor Act (“EMTALA,” or “the Act”) which regulates the emergency transfer and discharge of patients.[1] 42 U.S.C. 1395cc; 1395dd. These federal laws were developed to stop the medically inappropriate transfer of unstable emergency room patients, otherwise termed as “patient dumping,” due to the patient’s lack of medical insurance or inability to pay for services rendered. The related federal COBRA conditions include all hospitals who participate in the Medicare program and cover not only Medicare recipients, but all persons who present to emergency departments of those hospitals.
The specifications for COBRA’s medically appropriate screening and “treat or transfer” apply regardless of whether the patient is uninsured or indigent. Brooker v. Desert Hospital Corp., 947 F.2d 412 (9th Cir. 1991). Because these laws are federal, patients may bring a lawsuit in either federal court or state court.
Obligations for Physicians
Physicians are often bound by hospital obligations to comply with EMTALA within emergency departments. Regardless of the patient’s ability to pay, under EMTALA, physicians are obligated to perform the following tasks in the emergency room:
(1) to screen;
(2) to treat a patient until stabilized;
(3) to comply with restrictions on transfer;
(4) to accept transfers; and
(5) to comply with notice and record-keeping requirements.
Obligation to Screen
An appropriate medical screening examination must be provided to each person who presents at an emergency department to determine whether or not the person does in fact have a medical emergency or is in active labor. The screening exam must be performed by a physician (or by another appropriate staff member under physician supervision, if permitted by law). Transferring a patient without performing (and noting in the medical record) an appropriate medical screening examination will blatantly violate EMTALA and subject the medical facility) to EMTALA sanctions.
EMTALA regulations are not applicable to patients who develop medical emergencies after they have been admitted to a hospital facility. For example, a patient was admitted for acute renal failure and had her hand amputated because of a skin graft complication which went without treatment. The patient claimed an EMTALA violation because her hand’s condition was not stabilized before her discharge. The court found that the EMTALA regulations for transfer and discharge of patients only applies when a patient presents to an emergency department, requests treatment, and treatment is required because the hospital has determined by their appropriate medical screening examination that an emergency medical condition exists. James v. Sunrise Hospital, 86 F.3d 885 (9th Cir. 1996).
The specific requirements of an appropriate medical screening examination has yet to be promulgated into codified rules and regulations. Certainly, the appropriate medical screening examination must not differ because of the patients ability or inability to pay. Federal regulations do indicate that medical screening examinations “must be conducted by individuals determined qualified by hospital bylaws, rules or regulations, and who meet the requirements of section 482.55 concerning emergency personnel and direction.” 42 C.F.R. 489.24 (a).
Section 482.55 provides that emergency services must meet the following criteria:
(1) be directed by a qualified member of the medical staff;
(2) be integrated with other hospital departments;
(3) must have applicable policies and procedures; and
(4) must be overseen by qualified members of the medical staff.
Federal regulations also state that emergency departments must have adequate medical and nursing staff who are qualified in emergency care, and they must be available in order to meet both hospital needs and written emergency procedures. The introductory statement in the regulations states that HCFA proposes to grant hospitals “maximum flexibility in their utilization of emergency care personnel by not including specific requirements concerning education or credentials for individuals conducting emergency medical examinations.” Therefore, medical staff should incorporate appropriate emergency department rules and regulations into the facilities bylaws. Within the bylaws should be listed those individuals who are qualified in emergency care by both their scope of practice and under state law to perform crucial screening measures.
The introduction to the regulations also state that even though the hospital may delineate who is qualified for medical screening, “this does not mean that HHS must accept the hospital’s specification when determining whether an appropriate screen examination was done. . . . HHS may, in some instances, determine that there was not an appropriate medical screening examination because the condition of the individual required the expertise of a physician to determine whether the individual had an emergency medical condition.” Therefore, the medical staff should conservatively determine who is qualified to perform these screening examinations and when a physician must be involved. The appropriate medical screening examination should be rendered prior to asking about the individual’s ability to pay for services.
EMERGENCY MEDICAL CONDITION
An emergency medical condition is defined under federal laws as:
(1) a medical condition manifested by acute symptoms of sufficient severity (including sever pain, psychiatric disturbances and/or symptoms of substance abuse) such that the absence of immediate medical attention could reasonable be expected to result in–
(a) 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;
(b) Serious impairment to bodily functions; or
(c) Serious dysfunction of any bodily organ or part; or
(2) with respect to a pregnant woman who is having contractions–
(a) That there is inadequate time to effect a safe transfer to another hospital before delivery; or
(b) That the transfer may pose a threat to the health or safety of the woman or of the unborn child.
42 U.S.C. 1395dd (e); 42 C.F.R. 489.24(b).
Generally, case law holds that a hospital will not be judged in violation of EMTALA for failing to treat an emergency medical condition if the facts show that the hospital followed an appropriate screening examination and had no definitive knowledge of the condition’s severity.
Women in Labor
Before transferring a woman who is having contractions, a physician must first determine whether or not the woman is in active labor, or after an appropriate amount of time determine she is in false labor. A pregnant woman will only be determined to have an emergency medical condition if:
(1) there is inadequate time to effect a safe transfer to another hospital before
delivery; or
(2) the transfer may pose a threat to the health or safety of the woman or of the unborn child.
In cases where the labor is considered to be an emergency medical condition, the physician must either “stabilize” the woman or transfer her to another appropriate facility.
With respect to an emergency medical condition, “to stabilize” means to provide such medical treatment of the condition that is necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility. However, the term “stabilized” in regards to a pregnant woman means when she has actually delivered both the fetus and placenta. 42 U.S.C. 1395dd(e)(3). In the circumstance of necessary transfer to another facility, the hospital may not transfer the patient unless the woman (or legally responsible person acting on her behalf) is informed of the hospital’s obligations to obtain a written request of transfer to another medical facility, explained the risks and benefits of transfer, and a physician has signed a certification indicating that based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual and unborn child from effecting the transfer.
In cases where a woman is at an obstetric center neither she nor the infant may be transferred or discharged unless a member of the medical staff determines that:
(1) the maternal patient is at high risk for a complicated labor or delivery and does not meet the criteria for a low-risk, uncomplicated labor and delivery;
(2) the medical needs of the maternal patient or newborn baby exceed the capability of the obstetric center to provide the necessary care;
(3) the maternal patient is not in active labor;
(4) the maternal patient has had a normal low-risk, uncomplicated birth and that further medical problems or complications resulting from the birth are not anticipated.
If a maternal patient or newborn baby must be transferred because another hospital or medical facility is capable of providing a higher level of obstetrical and neonatal care, the primary hospital must first have a written agreement that acknowledges that the new facility agrees to accept emergency maternal patients without regard to their ability to pay. The criteria for the transfer of a maternal patient or newborn baby must also be in writing and included in the policy and procedure manual of the obstetric center. NAC 449.61162.
When a maternal patient is transferred to a hospital or medical facility which is licensed to provide high-risk perinatal care the following criteria must be observed:
(1) An obstetric center must have a written agreement with at least:
(a) One hospital or medical facility licensed to provide high-risk perinatal care; and
(b) One transportation service which can provide a vehicle with equipment appropriate to the needs of a maternal patient or newborn baby during a transfer for the obstetric center, that assures the expedient transfer of a maternal patient or newborn baby in accordance to established written protocols of the obstetric center when a maternal patient or newborn baby requires care beyond the capability of the obstetric center or a maternal patient is deemed to have a condition or the potential for such a condition that would result in an abnormal or complicated delivery.
(2) The medical director of the obstetric center shall:
(a) Determine the criteria and conditions under which a maternal patient or newborn baby should be considered for transfer. The criteria and conditions must be included in the written policy and procedures for the obstetric center.
(b) Annually review those criteria and conditions.
(3) An obstetric center must establish written procedures to determine the level of care and the mode of transportation required to ensure that the maternal patient and newborn baby receive expeditious and safe care appropriate to the needs of the maternal patient or newborn baby during the transfer.
NAC 449.61174.
Difficult judgement calls often fall upon the physician. When a patient experiences symptoms of very early or false labor, an out-of-hospital delivery could end in charges against the physician for medical malpractice, and against hospital for emergency transfer law violations. However, the statutes explicitly allow for transfer and or discharge of a woman when delivery is not presumed to be imminent. The importance of contemporaneous documentation by the physician of the patients medical status at all times of attendance cannot be overstated.
OBLIGATION TO TREAT UNTIL STABILIZED
Federal law requires that a hospital facility must provide all necessary treatment in efforts to stabilize the patient’s condition both within the capability of the staff and hospital, unless an appropriate transfer is arranged. With respect to an emergency medical condition, “to stabilize” means to provide such medical treatment of the condition that is necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility. However, the term “stabilized” in regards to a pregnant woman means when she has actually delivered both the fetus and placenta. Federal law requires that any emergency care given must be done so prior to asking about the individual’s ability to pay for services rendered. 42 U.S.C. 1395dd(e)(3)(a), 1395dd(e)(3)(b).
The term “stabilization” has been specifically addressed by at least one federal appellate court. In Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266 (6th Cir. 1990), the court deemed that the hospital could not be convicted of failure to stabilize a patient if an appropriate medical screening was completed and the individual’s emergency medical condition was not established. In Cleland, the patient did not appear to be in critical distress at the time of discharge and neither the physicians, nor the patient or his parents, had the slightest indication that the condition was deteriorating until the following day. If a patient’s emergency medical condition has been stabilized at the time of transfer, there is no violation of the Act’s mandates, even though emergency care may continue to be given when later admitted to a hospital.
Facility Capability
Federal law requires that necessary stabilizing treatment for emergency medical conditions (including labor) be provided by a hospital and staff within their capabilities prior to an appropriate transfer of the patient to another medical facility. 42 U.S.C. 1395dd(b)(1)(A).
Futile Treatment
Physicians may be required to render even “futile” treatment under EMTALA. In the case, In the Matter of Baby K, 16 F.3d 590 (4th Cir. 1994), a baby was born afflicted with anencephaly. At the time Baby K was born she had difficulty breathing, and was placed on mechanical ventilation. This was done to allow physicians to make a definitive diagnosis while allowing the mother the opportunity to fully understand her daughter’s diagnosis, condition, and prognosis. Although a “Do Not Resuscitate” order was discussed by physicians with the mother, she did not agree. Baby K was provided services until a nursing home accepted her because the primary hospital failed to find another facility willing to accept her transfer. After her transfer to the nursing home she was readmitted to the hospital numerous times with respiratory distress. Each time Baby K was given breathing assistance, stabilized, and discharged again to the nursing home. Following the second hospital admission, the hospital filed an action for declaratory relief in an attempt to resolve the issue of whether the hospital was required to render emergency medical care that the hospital deemed as both ethically and medically inappropriate.
The federal Fourth Circuit judged that the hospital was required to provide Baby K with the same stabilizing medical treatment modalities that it would give to any other patient experiencing respiratory distress. Even though the court acknowledged the ethical and moral questions raised by the hospital’s action, it ruled the plain language of the statute mandated stabilizing treatment for any individual meeting the definition of an emergency medical condition. The court also stated that it was the duty of Congress to change the law in regards to any ethical questions and not the responsibility of the courts. Thus, even “futile” emergency medical treatment appears required under EMTALA.
Application of Laws When Patient Is Not Transferred
Even when an individual presenting to a hospital (licensed health facility) emergency department and no transfer is anticipated, the federal transfer laws mandate facility to perform a screening medical examination to determine whether or not an emergency medical condition exists. This screening exam must be done before the individual is asked about his or her ability to pay or provide insurance information. The duty to screen and administer stabilizing treatment exists to the extent that the hospital has capacity, capability, and appropriate staff to do so.
COBRA explicitly defines the word “transfer” to include a “discharge” or any other movement of the individual from inside to the outside of the hospital building. Specifically, 42 U.S.C. 1395dd(e)(4), defines “transfer” as “movement” and or “discharge” of a patient outside the hospital’s facilities at the instruction of any person staffed or affiliated with the hospital.
RESTRICTIONS ON TRANSFER
Federal law does not have restrictions or regulations concerning the transfer of non-emergency stable patients. With concern to unstable patients, federal law allows patient transfers only if the patient independently requests transfer and the physician attests that the benefits from transfer outweigh the risks. See 42 U.S.C. 1395dd(c) for other specifics.
Federal Transfer Requirements
According to federal law a patient can not be transferred unless:
(1) the individual (or a legally responsible person acting on the individual’s behalf) after being informed of the hospital’s obligations and of the risk of transfer, in writing requests transfer to another medical facility;
(2) a physician has signed a certification that based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual and, in the case of labor, to the unborn child from effecting the transfer; or
(3) if a physician is not physically present in the emergency department at the time an individual is transferred, a qualified medical person (as defined by the Secretary in regulations) has signed a certification described in clause (2) after a physician (as defined in section 1395x(r)(1) of this title) in consultation with the person, has made the determination described in such a clause, and subsequently countersigns the certification (shall include a summary of the risks and benefits upon which the certification is based); and
(4) the transfer is an appropriate transfer to that facility.
Recent cases have shown that both the hospital and transferring physician must be extremely cautious, particularly when a pregnant patient is transferred. For instance, in Burditt v. DHHS, 934 F.2d 1362 (5th Cir. 1991), the court judged that the transferring physician had to ensure that the safe transfer of the patient was done through utilization of appropriate personnel and transportation equipment. However, the physician’s confidence in the ambulance transport was insufficient to meet this requirement because of two things: (1) he failed to provide a licensed physician to accompany the patient during transfer (in case an emergency C-section was necessary); and (2) he failed to ensure that at least a fetal heart monitor was aboard the ambulance.
Federal law also mandates that an “appropriate transfer” to another medical facility is one when:
(1) the transferring hospital provides the medical treatment within its capacity which minimizes the risks to the individual’s health and, in the case of a woman in labor, the health of the unborn child;
(2) the receiving facility –
(a) has available space and qualified personnel for the treatment of the individual, and
(b) has agreed to accept transfer of the individual and to provide appropriate medical treatment;
(3) the transferring hospital sends to the receiving facility all medical records (or copies thereof), related to the emergency condition for which the individual has presented, available at the time of transfer, including records related to the individual’s emergency medical condition, observations of signs or symptoms, preliminary diagnosis, treatment provided, results of any tests and the informed written consent or certification (or copy thereof) provided, and the name and address of any on-call physician who has refused or failed to appear within a reasonable time to provide necessary stabilizing treatment;
(4) the transfer is effected through qualified personnel and transportation equipment, as required including the use of necessary and medically appropriate life support measures during the transfer; and
(5) other requirements are met as the Secretary of the state may find necessary in the interest of the health and safety of individuals transferred.
42 U.S.C.1395dd(c)(2).
Nevada Admission, Transfer, & Discharge Requirements
The following requirements governed by the state of Nevada in regards to admissions, transfers, and discharge are:
(1) A facility must have written policies and procedures available to the members of the staff, residents and the public which govern all areas of services provided by the facility.
(2) The policies for admission, transfer and discharge or residents must assure that:
(a) Only those persons are accepted whose needs can be met by the facility directly, in cooperation with community resources or other providers of care with which it is affiliated or has contracts;
(b) As changes occur in their physical or mental condition, necessitating service or care which cannot be adequately provided by the facility, residents are transferred promptly to hospitals, skilled nursing facilities or other appropriate facilities; and
(c) Except in the case of an emergency, the resident, his next of kin, the attending physician and the responsible agency, if any, are consulted in advance of the transfer or discharge of any resident, and casework services or other means are utilized to assure that adequate arrangements exist for meeting his needs through other resources.
(3) An admission agreement may not provide the licensee the right to act on behalf of the resident in legal matters or be given general power of attorney, except in the case of a person remanded to the custody of the division of mental hygiene and mental retardation.
(4) Written policies of the facility must set forth the rights of residents, prohibit their mistreatment or abuse, and provide for the registration and disposition of complaints without threat of discharge or other reprisal against any employee or resident.
(5) Every facility must have in effect a transfer agreement with one or more hospitals sufficiently close to the facility to make feasible the transfer between them of residents and their records. Any facility which does not have such an agreement in effect but has attempted in good faith to enter into such an agreement with a hospital is considered to have an agreement if it is in the public interest and essential to assuring services for eligible persons in the community.
NAC 449.704.
Certification that the Benefit of Transfer Outweighs the Risk
In regards to a physician’s duties in certifying that an unstable patient may be transferred because the benefits of transfer outweigh the risks, the Fifth Circuit, in Burditt v. DHHS, 934 F.2d 1362 (5th Cir. 1991), ruled that a violation occurs when any of the following are breached:
(1) a physician’s signature is not present;
(2) the risks and benefits are not actually weighed by the signer;
(3) the signer makes an inappropriate consideration a significant reason; or
(4) the signer determines that the risks outweigh the benefits.
In the Burditt case, even though the physician signed the certification document stating that the benefits of transfer outweighed the risks, the court found that he had not actually proceeded through a deliberative process before doing so.
However, Nevadas controlling authority, the Ninth Circuit, judged that a physician’s failure to follow specific “technical” requirements of the statute (in relation to the physician’s certification), did not authorize a finding of liability under EMTALA within the facts and evidence presented of one case. In Vargas v. Del Puerto Hospital, 98 F.3d 1201 (9th Cir. 1996), a physician of a small rural hospital tried futilely to stop an infant’s seizures, ultimately transferring the infant to another facility with a pediatric intensive care unit. The infant’s family sued in violation of EMTALA, accusing that on the transfer certification the physician failed to provide a list of transfer-related risks and instead wrote “need pediatric intensive care not available here.” The physician, however, did check a box on the form which noted that the risks of emergency transfer were outweighed by the benefits of treatment at the local facility. In supporting the lower court’s judgement in favor of the hospital, the Ninth Circuit found that a hospital can correct a failure of summarizing possible transfer risks by establishing that the risk-benefit assessment was in fact rendered.
PATIENT REQUEST, REFUSAL, OR DEMAND FOR TRANSFER
A patient can only be transferred to another facility if he has received an explanation of the need for the transfer and has been given the available alternatives. If the patient is unable to understand an explanation due to the patients condition and an immediate transfer is necessary for a higher level of care, the transfer will be deemed valid. However, if the patient is competent to make medical decisions, the forced transfer of a patient who does not consent creates serious legal issues.
According to federal law every patient has a constitutional right to control his or her body and medical treatment whether or not his condition is stable or not. Therefore, forcible transfer of a patient to another facility could subject the hospital and transferring physician to charges of battery, false imprisonment, and other civil liabilities (torts), in addition to patient transfer law liabilities.
When a transfer is made to another medical facility, the primary facility is required to forward a copy of the medical records of the patient, at or before the time the patient is transferred. When the patient does not consent to the transfer, the hospital bears the burden of proof to prove that the hospital has met its legal responsibilities.
In cases where a hospital lacks the essential resources to stabilize a patient, it is unclear if a hospital may discharge the patient, or whether it must continue to strive for stabilization despite the lack of essential resources. Because the law is vague regarding this issue and each patient transfer case will be decided relative to its specific facts, physicians should contact the medical staff’s attorney for advice before transferring or discharging an unstable patient against the patient’s will. 42 U.S.C. 1395dd(b)(3); NRS 449.700; 449.705.
Transfer or Discharge Against Medical Advice
Under federal regulations a hospital is held to particular requirements which pertain to patient stabilization and or appropriate transfer when an individual makes a written request for transfer after being informed of both the hospitals duties and the benefits and risk of transfer. Federal regulations also mandate that a written request must contain the reasons for the transfer request and state that the patient has been informed of the benefits and risks of transfer. 42 C.F.R. 489.24(c)(4). When a patient refuses to consent to either treatment or transfer, a hospital must take all reasonable measures to inform the patient of the benefits and risks of proposed treatment and or transfer, along with reasonably seeking to receive the patient’s written informed refusal. Here, a hospital meets the federal requirements when:
(1) the hospital offers the individual further medical examination and treatment;
(2) informs the individual (or person acting on behalf of the individual) of the risks and benefits to the individual of the examination and treatment;
(3) the medical record contains a description of the examination, treatment, or both if applicable, that was refused on behalf of or by the individual;
(4) the hospital must take all reasonable steps to secure the individual’s written informed refusal (or that of the person acting on his or her behalf); and
(5) the written document indicates that the person has been informed of the risks and benefits of the examination or treatment, or both.
42 C.F.R. 489.24(c).
HOSPITALS OBLIGATION TO ACCEPT TRANSFERS
Federal law mandates that a participating hospital having specialized capabilities or facilities (such as burn units, shock-trauma units, neonatal intensive care units, or, in rural areas, regional referral centers as identified by the Secretary in regulation) shall not refuse to accept an appropriate transfer of an individual who requires such specialized capabilities or facilities if the hospital has the capacity to treat the individual.
Therefore, if a hospital were to offer a potentially self-serving statement that it lacks the capacity to accept a transfer patient, federal regulators may further investigate. For example, if a hospital in the past took necessary actions to increase capacity in order to care for particular patients, the hospital should also take necessary actions to accept patient transfers. A hospital is precluded from artificially increasing or decreasing its capacity status in a manner that is discriminatory against transfer patients.
A participating hospital means a hospital that has entered into a Medicare provider agreement under section 1866 of the Act. 42 U.S.C. 1395dd(g). Capacity refers to the ability of the hospital to accommodate the individual requesting examination or treatment of the transferred individual. Capacity encompasses such things as numbers and availability of qualified staff, beds, and equipment and the hospital’s past practices of accommodating additional patients in excess of its occupancy limits. 42 C.F.R. 489.24(b).
NOTICE AND RECORD-KEEPING REQUIREMENTS
Federal law requires hospitals to post visibly noticeable signs informing patients of their rights, and stating whether the hospital participates in the Medicaid program under the state plan. 42 U.S.C. 1395cc. Hospitals operating emergency departments are required to keep a central log containing data about each patient who comes to the emergency department. The log must show if the patient was transferred, admitted and treated, stabilized and transferred, refused treatment, or discharged. 42 C.F.R. 489.20(r)(3). Hospitals are also mandated to maintain medical records and other records related to individuals transferred to or from the hospital for a period of five years from the date of transfer. 42 U.S.C. 1395cc(d)(I)(ii).
MANDATORY REPORTING REQUIREMENTS
Federal law mandates the reporting of an on-call physician who is notified by the hospital and either fails or refuses to appear within a reasonable period of time to provide necessary treatment to an individual. The receiving facility must be given all medical records (which are available at the time of transfer) relating to the emergency condition for which the individual has presented and the name and address of the on-call physician who failed to respond. 42 U.S.C. 1395dd(c)(2)(C).
Additionally, federal requires the receiving hospital report to HCFA and/or to Nevada survey agencies anytime “it has reason to believe that it may have received a patient who has been transferred in an unstable medical condition from another hospital in violation of [EMTALA regulations].” 42 C.F.R. 489.20(m). These reports to either HCFA or the state must be made within 72 hours.
LEGAL PENALTIES
Hospitals and physicians who are in violation of patient transfer laws may be subjected to severe penalties. Any physician who is responsible for the examination, treatment, or transfer of an individual in a participating hospital, including a physician on-call for the care of such an individual who negligently violates a requirement of this section, is subject to a civil money penalty of not more than $50,000 for each violation. 42 U.S.C. 1395dd(d). If the violation is gross and flagrant, or is repeated, a physician may be excluded from participation in federal and state health care programs. The regulations define the term “gross and flagrant” as a violation that presents an imminent danger to health, safety, or well-being of the individual who seeks emergency examination and treatment or places that individual in a high-risk situation.” Of course, wilful or negligent violations will also subject a physician to the pecuniary penalties. 42 C.F.R. 1003.100.
A participating hospital that negligently violates a requirement of the transfer laws is subject to a civil money penalty of not more than $50,000 (or not more than $25,000 in the case of a hospital with less than 100 beds) for each violation. However, hospitals that violate patient transfer laws may not only be fined but may also lose their Medicare certification, and may also lose their emergency medical permit or face license restrictions.
HOSPITALS WITHOUT EMERGENCY DEPARTMENTS
Licensed health care facilities who do not maintain and operate an emergency department are not subject to COBRA’s patient transfer laws. See P.I.A. Amarillo, Inc. d/b/a Cedar Creek Hospital v. Sullivan, Medicare & Medicaid Guide 40,113 (D.D.C. 1992).
BED SHORTAGES
The law allows transfers of both stable (without restriction) and unstable patients when either the patient or transferring physician makes an informed request of transfer. 42 U.S.C. 1395dd(c). The transfer can be effected when the transferring physician certifies that the medical benefits expected at another facility outweigh the risks of transferring the individual (or unborn child), based upon the information available at the time of transfer. The obligations of the hospital to screen and treat, under federal law, exist only to the extent that it has the “capacity” to do so, which means having both staff and facilities available. The term “capacity” is defined as the ability of the hospital to accommodate the individual requesting examination or treatment of the transferred individual. Capacity encompasses such things as numbers and availability of qualified staff, beds and equipment, and the hospital’s past practices of accommodating additional patients in excess of its occupancy limits. 42 C.F.R. 489.24(b).
However, the law permits patient transfers in cases where there are insufficient numbers of intensive care beds to properly treat a patient. Authorities may become involved if it appears that a hospital transfers only patients who either uninsured or unable to pay while maintaining its staffed beds with insured or paying patients.
PRE-HOSPITAL CARE
The only federal appellate court to confronted the issue of whether emergency transfer laws apply to pre-hospital consultation and treatment has ruled that these laws are not applicable unless the individual comes to the hospital emergency room. In Johnson v. University of Chicago Hospitals, 982 F.2d 230 (7th Cir. 1992), a nurse who was operating a telemetry intensive care system, a mobile unit set up by the defendant hospital, advised paramedics to take a critically ill infant to another facility as her hospital was on “partial bypass” because of a shortage in beds for pediatric patients needing intensive care. The infant was transported to second facility and treated in the emergency department. However, the receiving hospital did not have a pediatric intensive care unit and therefore the infant was again transferred to second facility. The infant died after the second transfer. The mother claimed that the primary hospital who diverted the infant violated the emergency transfer laws. She alleged that the hospital refused treatment to her child and transferred the infant in an unstable condition, which was not in the infant’s best interest. The plaintiff’s action was dismissed in the lower federal court because she did not claim that the infant in fact presented at the emergency department.
Although the appellate court allowed the plaintiff to bring a negligence action against the hospital stemming from breach of it’s common law duty to the infant (arising from its voluntary actions in connection with the advice rendered to the paramedics), the plaintiff was not permitted to bring a claim under the federal emergency transfer laws. The court ultimately found that the law only applied to an individual who actually “comes to” a hospital’s emergency department.
Federal law defines the term “comes to” to mean (with respect to an individual requesting examination or treatment) that the individual is on the hospital property (this includes ambulances owned and operated by the hospital, even if the ambulance is not on hospital grounds). An individual in a non-hospital owned ambulance on hospital property is considered to have come to the hospital’s emergency department. An individual in a non-hospital owned ambulance off hospital property is not considered to have come to the hospital’s emergency department, even if a member of the ambulance staff contacts the hospital by telephone or telemetry communications and informs the hospital that he wants to transport the individual to the hospital for examination and treatment. In such situations, the hospital may deny access if it is in “diversionary status,” that is, it does not have the staff or facilities to accept any additional emergency patients. If, however, the ambulance staff disregards the hospital’s instructions and transports the individual to hospital property, the individual is considered to have come to the emergency department. 42 C.F.R. 489.24(b).
LEGAL PROTECTION FOR PHYSICIANS
Federal Immunities
Federal law provides immunities for protection of a transferring physician when an on-call physician is called and fails to respond. If after an initial examination, a physician determines that the patient requires the services of a physician listed by the hospital on its list of on-call physicians and notifies the on-call physician, and the on-call physician fails or refuses to appear within a reasonable period of time and the original physician then orders the transfer of the patient because he determines that without the services of the on-call physician the benefits of transfer outweigh the risks of transfer, the physician authorizing the transfer shall not be subject to a penalty. The transferring physician is immunized[2] from an EMTALA lawsuit. However, this immunity does not extend to the hospital or to the on-call physician who failed or refused to appear. 42 U.S.C. 1395dd(d)(1)(C).
Protection for Whistleblowers
The federal law also ensures that a participating hospital may not penalize or take adverse action against a qualified medical person or a physician because that person or physician refuses to authorize the transfer of an individual with an emergency medical condition who has not been stabilized. Hospital employees who report a violation of a emergency transfer requirement also may not have any adverse or retaliatory action taken against them. 42 U.S.C. 1395dd(i); 42 C.F.R. 489.24(d)(3).
MANAGED CARE PATIENTS
Payment for Emergency Services
Managed care organizations must make payment to physicians for emergency medical services rendered to its enrollees. Two exceptions exist. First, if the HMO plan reasonably determines that the emergency services were in fact never performed, or second, in cases where a medical screening was performed when the HMO enrollee did not require emergency services, and the enrollee should have known that an emergency did not exist, HMOs may not have to pay for the emergency medical care rendered. Otherwise, managed care plans have an obligation to pay for any emergency medical screening exams and any stabilizing emergency care that was necessary. Where an HMO plan does not pay for the screening examination because the enrollee should have known an emergency did not exist, the hospital and physician can bill the enrollee directly for payment of services rendered.
EMERGENCY TRANSFER LAWS & MEDICAL STAFF ON-CALL REQUIREMENTS
The succeeding paragraphs discuss the emergency transfer laws as they are applicable to specific medical staff physicians who serve on an on-call basis to a hospital’s emergency department.
Physician Obligations to Serve On-Call
If a hospital and medical staff agree to maintain and operate an emergency department, the medical staff will have to serve on an on-call basis. Governing boards and medical staffs have significant liberty in establishing creative ways to cover medical emergencies. A few of these ways may include, but are not limited to:
(1) contracting for on-call services;
(2) compensation for some portion of the uncompensated care rendered by on-call physicians;
(3) mandatory on-call coverage for members of the medical staff;
(4) voluntary on-call coverage; or
(5) insurance coverage for physicians on-call.
When on-call responsibilities are accepted by a physician, the physician must observe all emergency transfer laws and can be held responsible for failing to comply with them. These laws forbid any on-call physician from declining to respond for a non-medical reason. For example, failing to respond because of a patient’s ethnicity, national origin, race, citizenship, age, religion, sex, physical or mental handicap, pre-existing medical condition, ability to pay, or insurance status is forbidden. Medical staffs should review protocols for emergency departments in regard to handling commonly presented situations. Whenever a doubt exists, specialists who serve on an on-call basis should personally examining the patient.
On-call responsibilities for physicians are not specifically delineated within federal law. However, the law does mandate the hospital to keep a register of physicians who are on-call when necessary stabilizing treatment of a patient is needed after the initial screening exam.[3] 42 U.S.C. 1867(d)(2)(B) & (C).
Physicians who serve on-call must also protect themselves from the risk of liability. Each physician is required to uphold the agreement or contract established with the facility. For example, informal on-call arrangements may no longer be possible because federal law mandates that hospitals keep a roster of on-call physicians and to report those physicians if they do not respond when called. Therefore, hospitals establish a date and time specific register of staff members who are on-call to minimize any doubt as to who is on-call. If hospitals and staff are unable to provided necessary emergency coverage, they may be required to eliminate their emergency departments or seek a reduction of the range of services provided. Further, a physician may generally not limit his participation on an on-call roster by agreeing only to be responsible for certain classes of patients, such as only those who are insured.
Mandatory On-Call Policies
Both hospital and medical staff should work together in developing acceptable policies and procedures that regulate on-call requirements, rather than instituting a mandatory on-call policy. In cases where a hospital and staff members are unable to provide the necessary on-call coverage, the hospital may seek out other physicians who contract out their professional services (these physicians would have to become members of the hospital staff). If a hospital is unable to do so, they may be forced to close the emergency department.
The right of hospitals to force physicians to serve on a mandatory call list is primarily dependent upon whether the medical staff at the facility have established a standing policy for mandatory on-call service. Members of a medical staff agrees to be bound by both medical staff bylaws, rules and regulations, and all policies adopted by the medical staff. If a medical staff implements a mandatory on-call policy, a staff member is bound by that policy. Bylaws that are adopted by the medical staff, including bylaws mandating on-call rosters, bind staff members to the terms established. Any staff member or physician who is unclear of his rights and duties in regards to this should look directly to the medical staff bylaws.
Potential Defenses to Alleged Violations
Federal law enforces violations in respect to on-call physicians who fail to respond, with a monetary fine of up to $50,000. 42 U.S.C. 1395dd(d)(1). The law does not expressly recognize any exceptions. However, there may occasionally be circumstances, such as beeper malfunctions and other conditions that are unforeseeable, that may prevent a physician from responding. If such an occasion arises, a physician should:
(1) make contact with the emergency department as soon as possible;
(2) explain the problem; and
(3) document the efforts that were made to comply.
The application of the law to an on-call physician who is already treating a patient is unclear. Physicians obviously cannot abandon one critical case in order to attend to another. Because it is possible that more than one patient may come to an emergency department in need of the same specialty services, medical staffs would be advised to implement policies and procedures aimed at providing on-call back-up coverage.
Physicians who have customarily provided on-call coverage to more than one medical facility may face a similar dilemma. Multiple-facility coverage has proven desirable for specific specialties especially in communities with facilities having limitations in capacity or specialist availability. Nonetheless, it is conceivable that federal or state authorities could try to impose liability in these situations when an on-call physician does not (or cannot) respond.
A fairly recent court decision considered an on-call surgeons liability for failing to immediately respond when required. In Brooker v. Desert Hospital Corporation, 947 F.2d 412 (9th Cir. 1991), the plaintiff claimed that both state and federal emergency transfer laws were violated because she was transferred from a facility when she needed open heart surgery. When the plaintiff presented to the emergency department, an on-call cardiologist examined the patient, admitted her to the hospital, and took charge of her care. The cardiovascular surgeon who was on-call was unavailable because of an engagement at a professional seminar. Although the surgeon agreed to perform the surgery in four days, the cardiologist felt that the patient should instead be transferred to another facility where surgery could be done the following day. Even though the patient agreed to the surgery and it was successfully completed, the patient later sued alleging that state emergency transfer laws along with Title 22 (hospital licensure requirements) had been violated because the on-call surgeon refused to respond to provide treatment and the hospital had therefore closed its cardiovascular service. The Ninth Circuit Court of Appeals determined that the record did not support that claim the hospital closed the cardiovascular unit and refused to provide emergency surgery, because in the surgeon’s judgement, the patient’s condition was stable and surgery could be postponed until a later date. The facility was not determined to be closed just because the cardiologist disagreed with the surgeon’s prognosis and in turn directed the patient to accept a transfer to another facility for immediate surgery. The court ultimately ruled that, on the facts of this particular case, the temporary unavailability of on-call specialists did not constitute a hospital refusal to provide services.
Required Response Time
Federal law does not define a “reasonable period of time,” during which a physician who is on-call and is notified to provide stabilizing treatment must respond. When a telephone conference is not sufficient and the on-call physician must actually go to the hospital, that physician would be well advised to proceed there as quickly as possible. Prior to proceeding, the physician should discuss with the emergency department any foreseeable delay.
Obligations of Physicians Taking Call for Other Physicians
In cases where an emergency room calls for physician A and physician B is covering call for physician A’s patients, but neither has signed up for the hospital’s on-call roster, physician B has a duty to respond by virtue of his arrangement to cover physician A. In this situation physician B is held to both the state and federal transfer laws. However, physician B is not obligated to respond if the emergency room’s call pertains to an individual who is not a patient of physician A, because neither physicians A or B are on-call.
Obligations of Physicians to Accept Transfers
Federal law mandates that any hospital participating in the Medicare program that has specialized capabilities or facilities (such as burn units, shock-trauma units, neonatal intensive care units or (with respect to rural areas) regional referral centers as identified by the Secretary of DHHS), shall not refuse to accept an appropriate transfer of an individual who requires such specialized capabilities or facilities if the hospital has the capacity to treat the individual. 42 U.S.C. 1395dd(g). Under this federal regulation, the hospital that has a duty to accept the transfer, and the on-call physician must respond in a medically appropriate way. In situations where a hospital has no duty to accept transfers and chooses not to, the on-call physicians would not be obligated to respond.
Follow-Up Treatment
Follow-up care for a patient who has been treated, stabilized, and discharged from the emergency department is not discussed in the emergency transfer laws. Therefore, under common law, the main issue is whether or not the patient has established a legal relationship with either the physicians staffing the emergency department, a particular on-call physician, or the hospital, by which a patient reasonably expected that follow-up care would be rendered.
If a physician-patient relationship has been established, the physician is obligated not to “abandon” the patient. This means that the physician has an ongoing duty to the patient to render necessary medical care until the relationship is ended. However, even if a relationship is established, it may be possible to argue that the relationship is confined to the stabilization of the patient, not to his continued care.
The courts presumably will consider the situation for the viewpoint of a reasonable patient. A court will look for data concerning what a reasonable patient would have expected under the circumstances.
The default position for physicians who are unsure of their duties is to: (1) render treatment; (2) inform the patient, while still in the hospital or emergency department, that the physician’s care is confined to stabilizing treatment; and (3) confirm that physician-patient relationship terminates when the patient is discharged from the hospital with a follow-up letter informing the patient that he will need to seek out another source for continued care. The hospital and medical staff should establish a standard list of resources that can be provided to these patients for continued care.
Under certain circumstances, some medical staff members have agreed that members will see emergency patients in their offices the day following their on-call shift as a way of rendering the necessary treatment to the patient. If a member of the medical staff has agreed to this type of arrangement then he must see it through regardless of the patients ability to pay.
Standby Emergency Department
If a hospital goes to a standby emergency department status it is unclear how the federal government will apply its on-call coverage requirements to facilities providing limited emergency services.
[1] The word “patient” is used in this chapter only for ease. The laws mandate that hospitals screen and treat or transfer all “persons” who present to an emergency department.
[2] Immunized from a lawsuit does not mean the transferring physician cannot be sued (i.e., a cause of action filed against him in court). It does mean that if such a suit is filed, the transferring physician is entitled to have that lawsuit against him dismissed upon submission of a proper motion.
[3]The Department of Health and Human Services has indicated that this mandate does not require either all specialists or all physicians to be on-call at all times. The department also recognizes special considerations for hospitals in rural settings with a fixed number of specialists. These hospitals may declare particular specialties available on an elective basis only.