Remove Non-emergent Patients from the ED with Care

A patient with a clearly minor complaint faces an hours-long wait in your packed ED waiting room, with multiple patients boarded in the hallways. It seems like a no-brainer: Send the patient to an urgent care center where he or she can be seen more quickly, with less out-of-pocket cost, freeing your ED for true emergencies. But what legal and regulatory pitfalls are emergency physicians (EPs) up against?

John Burton, MD, chair of the Department of Emergency Medicine at Carilion Clinic in Roanoke, VA, says that once the ED has determined through its medical screening examination that the patient is stable, then the ED has no further obligation under the Emergency Medical Treatment and Labor Act (EMTALA).

“The practical application of this principle then means that a patient can be refused further care or services at the ED,” he explains, noting that this might mean referral to an urgent care center or clinic.

However, this doesn’t help patient flow as much as one might expect. Once the patient has undergone an examination in the ED, and has been determined to be stable, the EP presumably gives some thought to the next steps.

“By sending the patient away and refusing care, the EP holds back the diagnosis and treatment plan after doing what many consider to be the hard part, namely, the history and examination,” Burton says.

This means sending this ED patient away won’t save as much time as it appears.

“The gain in time for the provider is not that much, although a clear message is definitely sent to the patient,” Burton says.

That message is, “We won’t complete your visit when we determine you have a minor medical problem that could have been dealt with elsewhere in a non-emergent setting.”

However, Burton warns EPs to consider carefully these potential risks involving referring patients outside the ED:

• The EP might have missed an unstable condition in the screening exam.

In this case, Burton says, “the hospital looks pretty bad to the lay public, since it refused care to the unstable person.”

That unhappy patient, who was refused care at the ED, now has a good reason to call a lawyer.

“That action can then not only be one of proper care of treatment, but also opens the door to an EMTALA claim against the hospital,” Burton explains.

• The receiving facility, presumably a clinic or urgent care center, likely will feel “dumped on” by the ED that referred the patient after the screening exam.

That clinic might find unstable vital signs or experience other issues with the receipt of the ED patient.

“They usually will, since the whole reason the ED refused the care is typically that the patient is stable and has no payer source,” Burton notes.

This leaves the ED wide open to a complaint — from the clinic or urgent care center. For this reason, many hospitals only take this EMTALA risk if they send the patient to their own clinics or urgent care facilities.

“Additionally, some EDs have resorted to giving the patient a choice, so as to incur some buy-in from the patient,” Burton says.

Burton notes that the EP might say, for instance, “Would you rather go to our clinic upstairs now, where they will see you promptly? Or would you like to stay in the ED and wait six hours?”

• It is difficult for EDs to define exactly what constitutes a “stable” patient.

“As anyone who has ever tried to define ‘stable’ or ‘unstable’ within a policy will attest, the definitions are not an easily agreed-upon concept,” Burton says. “Stable is more than just vital signs.”

Exactly what lengths of testing or examination the EP must go to ensure the patient is stable also is an open question.

“There are no clear textbook definitions that cover this concept across the broad scope of emergency medical care,” Burton notes. Often, physicians and nurses use the term “life- or limb-threatening.”

“However, this is very limited in its practical application within the ED environment,” Burton adds.

The bottom line is that EDs shouldn’t remove patients lightly, even if it’s according to the letter of the law.

“Most EDs have chosen not to pick a battle with EMTALA and face its unfortunate consequences,” Burton notes, adding that EDs that refuse care to patients after completion of a medical screening exam should be “very cautious, and deliberate in their processes.”

Sandra DiVarco, JD, an attorney at McDermott Will & Emery in Chicago, says an ED patient can be referred to a doctor’s office or urgent care setting in these two scenarios:

• once the patient has received a medical screening exam and has been found not to have an emergency medical condition;
• if an emergency medical condition has been identified and stabilized such that the patient is appropriate to discharge for follow-up care.

Even if an EP fully meets his or her obligations under EMTALA before referring a patient to another site, this doesn’t mean the ED’s worries are over. If a bad outcome occurs afterward, the patient may decide to file an EMTALA complaint.

“This means that there could be survey activity all the way through to civil monetary penalties if a violation is found,” DiVarco warns. “Of course, that is in addition to potential professional negligence claims.”

Whether the EP ultimately is found liable is very fact-dependent.

“But even if the EP is not found liable on a civil claim at the end of the day, it could be a long and expensive road to get to that conclusion,” DiVarco says.

Here are some common scenarios EDs encounter:

• An urgent care center contacts an ED because the urgent care center determines a patient needs ED care.

This isn’t considered a “transfer” as defined by EMTALA, according to Nathan A. Kottkamp, JD, a partner in the Richmond, VA, office of McGuireWoods.

“But out of an abundance of caution, treat it as such. The safe thing to do is to accept the transfer and give the patient a full workup,” he advises.

If the urgent care center performed only a very cursory screening before sending the patient to the ED, that is not an EMTALA violation on the part of the urgent care center. Unless there is a state licensure law that triggers EMTALA or the urgent care center is hospital-owned, urgent care centers are not required to comply with EMTALA, Kottkamp explains.

“If you are on diversion, it’s fine to tell the urgent care center that you really can’t accommodate the patient right now,” Kottkamp says.

However, if that patient arrives at the ED anyway, the ED must perform the medical screening exam and then stabilize the patient or facilitate an appropriate transfer under EMTALA. There may be a strong temptation to send the patient away.

“But you can’t turn away that patient, even if you know it’s the exact same patient you told the urgent care center not to send because you’re on diversion,” Kottkamp explains.

Staff must perform an appropriate medical screening exam. “You can’t just give them a quick once-over and say you really should go to an urgent care center,” Kottkamp emphasizes. A comprehensive workup isn’t always necessary. A patient might present with an obvious non-emergent sinus infection, for instance.

“But you do need to screen for an emergency medical condition, and also at least ask some high-level mental health questions,” Kottkamp says, explaining EMTALA requires screening for both mental health and physical health in all cases.

If the patient would be an appropriate candidate for an urgent care center, Kottkamp says to document the screening exam thoroughly. Include the fact that the patient doesn’t have an emergency medical condition.

• An ED patient asks to be treated at the urgent care center, after staff complete the medical screening exam and determine no emergency medical condition exists.

“As long as there is no emergency medical condition, that’s where EMTALA stops. You can refer that patient [to] wherever is appropriate,” Kottkamp says. This could be an urgent care center or a referral to see the primary care physician. “But be sure your documentation is solid so nobody looks in the record in hindsight and says, ‘You were just punting that patient somewhere else,’” Kottkamp cautions.

DiVarco says following the hospital’s policy and procedure for patients who leave against medical advice is particularly important if the patient insists on leaving the ED before the medical screening exam is complete.

“Carefully document both the interaction and the patient’s decision making,” she says, highlighting the following helpful documentation:

• The fact that the patient made a decision to seek care elsewhere;
• Evidence of the ED advice — for instance, that the ED is ready, willing, and able to provide care, that the patient was advised of any risks of leaving the ED at that point in treatment, and that the patient acted against the EP’s advice, if that is the case;
• The EP believes that the patient has an emergency medical condition as defined by EMTALA, but the patient wants to leave anyway.

Kottkamp says to treat this like any request for a transfer or a patient who leaves without seeing a member of the staff. EPs must advise the patient, “We’ll certainly do what we can to facilitate that. But just understand that we do have an obligation to treat you here, because you came to our ED and we diagnosed you with an emergency medical condition.”

Kottkamp reminds EPs that at its heart, EMTALA is an anti-dumping law.

“As long as you provide solid documentation that shows you are not dumping this patient, you shouldn’t have a problem,” he says.

SOURCES

• John Burton, MD, Chair, Department of Emergency Medicine, Carilion Clinic, Roanoke, VA. Phone: (540) 526-2500. Fax: (540) 581-0741. Email: [email protected].
• Sandra DiVarco, JD, McDermott Will & Emery, Chicago. Phone: (312) 984-2006. Fax: (312) 984-7700. Email: [email protected].
• Nathan A. Kottkamp, JD, Partner, McGuireWoods, Richmond, VA. Phone: (804) 775-1092. Fax: (804) 698-2072. Email: [email protected].