Does a pregnant patient want to leave your ED and go to a different hospital — the one at which she plans to deliver? If so, the EP faces some potentially significant legal risks, warns Nathan A. Kottkamp, JD, a partner in the Richmond, VA, office of McGuireWoods.
“If the patient is insisting on going to her hospital of choice, that should be treated by the EP as any other decision to decline medical care,” Kottkamp says. “The risks should be very well explained to the patient.”
If the patient is in labor, he stresses, then the patient’s emergency medical condition, as defined by the Emergency Medical Treatment and Labor Act (EMTALA), isn’t over until labor stops or the baby is delivered. The on-call consultant can’t refuse to come in if he or she disagrees about the level of risk to the patient or whether it can wait, Kottkamp adds.
“The EP makes the call as to whether the on-call physician has to come in. That’s a simple, straightforward EMTALA rule,” he says.
If the on-call physician refuses to come to the ED, the EP can invoke the hospital’s chain of command.
“Maybe a chief of staff or some other individual will be able to assist in getting the on-call to cooperate,” Kottkamp says.
The EP can also remind the on-call physician that if there is a transfer required as a result, the transferring hospital is required by law to identify to the receiving hospital the name of the physician who failed to show up.
“That is almost certainly going to result in a report to regulators,” Kottkamp says.
Cases Have ‘News Appeal’
Since EMTALA cases involving obstetric patients can have devastating outcomes, these tend to attract a lot of attention.
“The news appeal of these cases causes them to often be the subject of press reports when they do arise,” says Sandra DiVarco, JD, RN, an attorney at McDermott Will & Emery in Chicago.
DiVarco says that many obstetric-related EMTALA cases arise as a classic “patient dumping” scenario: A pregnant woman in labor is turned away from an ED without an appropriate medical screening examination due to a lack of insurance, and is instructed to go to another facility to deliver her infant or to follow up on potential complications with the pregnancy.
Here are some actual EMTALA cases involving this scenario, reported on the Office of Inspector General’s website:
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In a 1991 case, a physician refused to stabilize and treat a pregnant uninsured patient in active labor; instead, he inappropriately transferred the patient to another hospital.1
“This is the first case where a physician faced an individual fine for his role in an EMTALA violation — to the tune of $20,000,” DiVarco says.
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In 2013, a hospital paid $50,000 in civil penalties in which it was alleged that the hospital failed to provide a medical screening examination and stabilizing treatment for a 30-year-old pregnant woman who presented to the ED experiencing chest pains. Both the patient and her baby died.
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In 2015, a hospital was fined $45,000; it was alleged that the hospital failed to provide an adequate medical screening examination for a patient who presented to the ED at 38 weeks pregnant, complaining of abdominal and lower back pain.
“Reportedly, the hospital, which means its employed or contracted physicians and/or nurses, allegedly did not take the patient’s vital signs, confirm fetal well-being, or perform even a basic examination on the patient,” DiVarco says. Instead, the EP referred the patient to see her own physician. “Settlement information reflects that, after leaving the hospital by private vehicle, she presented at the ED of another hospital, where she was admitted and delivered a stillborn baby,” DiVarco says.
EMTALA was not intended, and is not enforced as, a federal negligence statute, DiVarco notes.
“It is more in the nature of an anti-discrimination statute, to avoid disparate care or refusal of ED treatment for uninsured patients seeking care for emergent conditions,” she says.
A violation of EMTALA is not inextricably linked to a finding of medical negligence.
“Indeed, EMTALA requirements can be followed to the letter, and there can still be poor patient outcomes or negligent care provided,” DiVarco says.
Similarly, the presence of an EMTALA violation does not mean that a patient was the victim of negligent care.
“However, in the obstetric context, the concerns are heightened, as the potential damages in obstetric malpractice and birth injury cases can be high,” DiVarco says.
DiVarco says that the classic “patient dumping” scenario presented by obstetric EMTALA cases provides facts to consider in light of the elements of a negligence case.
“But it is those facts, and not the determination of whether or not EMTALA was violated, that will control in a claim of negligence against the involved physician or hospital,” she explains.
To avoid allegations of EMTALA violations involving obstetric patients, DiVarco recommends that EPs:
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Ensure that an appropriate medical screening examination is conducted to determine the presence or absence of an emergency medical condition, which could be active labor or something unrelated, regardless of the patient’s insurance status or ability to pay for care.
“Ensure such patients receive stabilizing treatment, whatever that needs to be,” DiVarco says.
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Carefully document the medical screening examination and decisions made as a result of that examination.
“This is helpful from both an EMTALA and general medical negligence standpoint,” DiVarco notes.
EMTALA includes some additional protections for pregnant patients, stresses Larry D. Weiss, MD, JD, FAAEM, MAAEM, clinical professor of emergency medicine at University of Maryland School of Medicine in Baltimore.
When EMTALA was first being discussed by Congress before it was enacted in 1986, pregnant patients were a focal point of interest.
“A lot of horror cases that they heard about involved pregnant patients that were being shuttled from one hospital to another because they didn’t have insurance,” Weiss says.
An “emergency medical condition” as defined by EMTALA includes any pregnant woman having contractions.
“The only way to stabilize the patient is to deliver the fetus and placenta. If you transfer a patient having contractions, by definition, it’s an unstable patient,” Weiss says.
It is permissible for EPs to transfer an unstable patient under certain conditions.
“EMTALA has a detailed definition of what constitutes an appropriate transfer of an unstable patient,” Weiss notes. “You have to sign an oath that the medical benefits outweigh the risks.”
This might be the case if the EP works in a small community ED with no OB coverage, for instance.
The referring hospital has to stabilize the patient to its maximum potential; appropriate records, personnel, and equipment must accompany the patient; the patient or a representative must consent to the transfer; and the patient must be accepted in transfer by an authorized agent of the receiving hospital.
“Finally, the receiving hospital must have the capacity and the capability to care for the patient,” Weiss adds.
Weiss points to a widely publicized 2011 case that generated much anxiety among EPs.2 A pregnant woman was discharged home and sued the EP, alleging an EMTALA violation; a central issue became whether or not she was having contractions. The on-call OB described Braxton Hicks contractions; later in the chart, the OB referred to minimal contractions.
“If there was no evidence of contractions, then EMTALA was not violated,” Weiss explains.
If the patient was having false labor, there was no emergency medical condition under EMTALA. If weak contractions were detected, on the other hand, then she was having an emergency medical condition under EMTALA.
“The patient won at a jury trial. The hospital appealed, and the case was later settled,” Weiss says. This caused many hospitals to revise policies to state that any pregnant woman who presented with bleeding should be admitted. “But that’s not the standard of care,” Weiss adds. “The standard of care for a threatened miscarriage is to send the patient home with bedrest.”
EMTALA was meant to protect viable fetuses and their mothers, Weiss stresses.
“The regulations were not really aimed at problems in early pregnancy,” he says. “The jury came up with the wrong result.”
Weiss says the lesson from this case is for an EP to “properly and honestly document in their notes that there was no evidence of any contractions, before sending a patient home.”
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Burditt v. HHS, 934 F2d 1362 (5th Circuit, 1991).
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Morin v. Eastern Maine Medical Center, D. Me., No. 1:09-cv-258, (March 25, 2011.)
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Sandra DiVarco, JD, RN, McDermott Will & Emery, Chicago. Phone: (312) 984-2006. Fax: (312) 984-7700. E-mail: [email protected].
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Nathan A. Kottkamp, JD, Partner, McGuireWoods, Richmond, VA. Phone: (804) 775-1092. Fax: (804) 698-2072. E-mail: [email protected].
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Larry D. Weiss, MD, JD, FAAEM, MAAEM, Clinical Professor of Emergency Medicine, University of Maryland School of Medicine, Baltimore. Phone: (410) 328-8025. Fax: (410) 328-8028. E-mail: [email protected].
