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EMTALA: WHAT NON-EMERGENCY DEPARTMENT PHYSICIANS NEED TO KNOW

By Steven K. Sanborn, Mitchell Warner, P.A.

Most ER physicians have a working knowledge of the requirements imposed by the Emergency Medical Treatment and Active Labor Act ("EMTALA"). However, EMTALA's reach carries beyond the emergency room. Physicians who provide call coverage to hospitals need to be aware of EMTALA's requirements and how to avoid liability. And for those physicians who do not provide call coverage, you may be required to do so if there is no other coverage for your specialty at the hospital.

EMTALA prohibits hospitals with emergency departments from "patient dumping." Generally, EMTALA requires hospitals participating in Medicare to provide medical screening examinations for all persons who present at the ER and request service, regardless of that person's ability to pay. In fact, the hospital cannot delay providing a medical screening examination in order to inquire about a person's method of payment, or in order to get authorization from a managed care plan. If the person has an emergency medical condition, or if a pregnant woman is in labor, the hospital must treat or stabilize the person, or provide for an "appropriate" transfer to another facility.

The Health Care Financing Administration ("HCFA") has promulgated regulations that require hospitals to provide the same physicians' services to patients presenting at the emergency room as are provided to other hospitalized patients. Hospitals are required to maintain lists of physicians on-call who can provide further evaluation or stabilizing treatment to a patient with an emergency medical condition. Although this does not require specialists to be on-call at all times, it does require hospitals to establish policies and procedures for when a particular speciality is not available. As an on-call physician, the physician is acting in the capacity of an agent of the hospital, and is not representing his or her own practice.

Physicians on call are required to respond within a reasonable period of time, which in normal circumstances should be no more than thirty minutes. This is the case even if a physician is busy in the OR with an elective surgery. Furthermore, physicians who are on-call at their offices must come to the hospital to examine the patient with an emergency condition; it is unacceptable for the hospital to send the patient to the physician's office, unless the physician's office is on land owned by, and contiguous to, the hospital or on the hospital campus.

Under HCFA's interpretation, EMTALA is also implicated where a patient presents to a hospital owned facility or physician's office that uses the hospital's Medicare provider number. Thus, a physician in a hospital owned practice may be required to provide medical screening exams for patients who present at their office.

Some courts have held that EMTALA even applies to inpatients. Thus, physicians cannot discharge an inpatient who is not stabilized, regardless of whether the patient was admitted via the emergency department.

A hospital may transfer a patient only if a patient, or his or her authorized representative, requests the transfer, or a physician certifies that the benefits of a transfer outweighs the risks to the patient of remaining in the facility.In the latter situation, a physician must sign a certificate that explains how, based upon the information available at the time of transfer, the benefits of transfer outweigh the risks.

Another issue involves "reverse dumping." If a hospital with limited facilities legitimately attempts to transfer a patient to a hospital with specialized capabilities, the receiving hospital could face liability if it refuses to accept the transfer. Thus, the hospital may require an on-call physician to accept the patient. Again, the on-call physician cannot refuse to accept a patient while waiting for authorization from a managed care plan, or on the basis that the physician does not have a contract with the managed care plan.

All a physician's liability may be imputed to the hospital, the physician himself or herself may also be subject to civil monetary penalties of up to $50,000 per inappropriate transfer. Also a physician may be excluded from Medicare and Medicaid based upon an EMTALA violation. A hospital that does not impose discipline against a physician may itself be subject to penalties, including exclusion from Medicare.

A physician may be subject to penalties for:

knowingly signing a transfer form where the physician knew or should have known that the benefits did not outweigh the risks;
intentionally misrepresenting an individual's condition or other information, including a hospital's obligations under EMTALA;
as an on-call physician, refusing to appear within a reasonable period of time, resulting in a transfer of the patient to another facility.

In Inspector General v. Cherukuri, an Administrative Law Judge imposed two $50,000 fines upon an on-call surgeon. These violations stemmed from two automobile accident patients, each of whom were identified to have head injuries and abdominal bleeding. Rather than treat the injuries, the judge found that the surgeon improperly transferred the patients to a tertiary care facility. (The surgeon alleged that the anesthesiologist refused to anesthetize patients with head injuries). Specifically, the judge found that the surgeon had:

failed to provide medical treatment that was within the hospital's capacity;
failed to obtain the receiving hospital's approval for the transfer, although he led the ER nurses to believe he had;
directed the nurses to prepare the patients for transfer, although he refused to sign the form certifying that the benefits outweighed the risks; and
not explained the hospital's EMTALA obligation to the patients' families.

While the Administrative Law Judge's decision was overturned on appeal, it still raises significant concerns for physicians who provide call coverage at hospitals.

To conclude, we strongly advise both emergency room and on-call physicians to learn and understand EMTALA's requirements. Medical Staffs need to work with their hospitals to formulate acceptable screening, transfer and discharge policies that comply with EMTALA. Otherwise, physicians could be subject to considerable fines, exclusion, loss of privileges, and even indemnification actions from their own hospitals.

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The Medical Law Alert is a publication of the Mitchell Warner Health Law Group. Its purpose is to provide general information about significant legal developments, and should not be construed as legal advice on specific factual scenarios. For more information on the issues discussed in this publication, please contact Edward E. Hollowell at (800) 662-7403 or ehollowell@nchealthlaw.com