EXECUTIVE SUMMARY
Several recent malpractice cases have involved ED patients who deteriorated rapidly after being placed in observation status.
- Keeping patients in observation status for lengthy periods exposes EPs legally.
- EPs remain responsible for patients sent to the hospital’s observation unit, even if these patients no longer are physically in the ED.
- A recent court ruling establishes that the decision to send a patient to observation does not end obligations under EMTALA.
A man who presented to an ED with abdominal and chest pain was placed in observation where he rapidly deteriorated. “He expired despite emergency measures to address what was later discovered to be an aortic dissection,” says Katharine C. Koob, Esq., an attorney at Post & Schell in Philadelphia.
Another claim against an EP involved a leukemia patient undergoing chemotherapy who was placed on observation status after presenting to the ED with eye irritation. “It was alleged that while being observed, his medical providers failed to timely administer antibiotics and address the patient’s volume depletion, resulting in sepsis and requiring amputation of multiple limbs,” Koob says.
A third case involved a young girl who was placed under observation after presenting to an ED with headache, nausea, and vomiting. Over the course of the day, she became lethargic and disoriented. Eventually, she was admitted to the hospital as an inpatient, where it was discovered that tumor-related fluid had caused irreversible brain injury.
“Subsequently, she was removed from life support and expired,” Koob says. “The brain damage was likely incurred during the course of her observation.”
These cases vary in jurisdiction and fact pattern, but all involved ED patients placed in observation status for an extended period. “EPs remain responsible for patients sent to the hospital’s observation unit, even if these patients are no longer physically in the ED,” Koob emphasizes. This is because sending a patient to an observation unit is not legally analogous to admitting a patient to the hospital.
“EPs who are under the mistaken belief that their obligation to their patient ends when the patient is placed in observation status expose themselves and the hospital to potential liability,” Koob warns.
In fact, permitting patients to remain in observation status for lengthy periods exposes EPs legally. “It inherently creates more opportunity for a patient to experience an adverse event,” Koob explains.
Koob names these other common risk-prone practices with ED patients under observation:
- an inadequate staff-to-patient ratio;
- failure to order tests or imaging studies;
- failure to administer appropriate medications;
- inappropriate administration of medications;
- failure to appreciate the effect of medications patients have taken, or regularly take, as an outpatient.
- failure to follow up. This is the primary issue EPs face in sending a patient to an observation unit, according to Koob. “In the fast-paced ED, a practice must be established to ensure close observation and adequate follow-up for these patients,” she underscores.
Care and diagnostic testing should not be delayed by the patient’s placement in observation. “There is no one-size-fits-all solution,” Koob says. “Part of addressing this concern may relate to the location of the patients being observed.” Patients might be observed in the ED or in a separate unit. “Adequate staffing is a necessary component to ensure the ability to appropriately monitor patients,” Koob adds.
EMTALA Obligations Continue
Sending a patient to the observation unit doesn’t end a hospital’s obligations under the Emergency Medical Treatment and Labor Act (EMTALA), according to a recent federal court ruling.1
The case involved a chest pain patient who died of cardiac arrest shortly after being discharged from the hospital. The plaintiff filed a negligence action against two physicians and the hospital, and also asserted an EMTALA failure-to-stabilize claim against the hospital. The defense argued that EMTALA obligations couldn’t have been violated because the patient was admitted for observation.
The court said applicable Centers for Medicare & Medicaid Services (CMS) regulations and guidance make clear that observation status isn’t the same as being formally admitted as an inpatient, which the agency has acknowledged ends a hospital’s potential EMTALA liability.
“The opinion correctly recites the CMS position on ‘admission,’” says Stephen A. Frew, JD, vice president of risk consulting at Johnson Insurance Services and a Rockford, IL-based attorney. The plaintiff in the case alleged that:
- there was an improper medical screening process prior to putting the patient in observation;
- there was a failure to meet EMTALA discharge criteria prior to the patient’s release.
“Anyone who understands the billing status of observation vs. admission would have anticipated this ruling,” Frew says.
Ongoing Monitoring Needed
Timothy C. Gutwald, JD, an attorney at Miller Johnson in Grand Rapids, MI, wasn’t surprised that the court rejected the hospital’s argument that placing the patient in observation automatically terminated the hospital’s EMTALA obligations. “CMS has repeatedly said patients in the ED and observation are not inpatients, so EMTALA obligations still apply,” he notes.
ED staff must be aware that sending a patient to the observation unit does not end the hospital’s EMTALA obligations, according to Gutwald. “Patients must be admitted or stabilized before their EMTALA obligations end,” he says.
Frew stresses that appropriate monitoring and stabilization must be ongoing during observation of ED patients. “At the conclusion of the observation process, the patient would have to meet the same discharge requirements as any other EMTALA patient in the ED,” he notes. One of two things must happen:
- An emergency medical condition must have been ruled out definitively, and documented as such;
- The condition must be resolved, and documented as such.
Koob concludes, “A clear delineation between an ‘inpatient’ and a patient placed in ‘observation status’ has been created by this decision.” The ruling establishes that the decision to send a patient to observation does not end obligations under EMTALA, even when the patient is provided a hospital bed and kept overnight or for an extended period within the hospital.
“The differentiation is based on the theory that observation status is used to determine whether a patient requires admission for further treatment, or should be discharged,” Koob explains. In practice, there may be little to no difference in the way these patients are treated medically. “However, as a result of this legal development, it is important for EPs to understand their EMTALA obligations,” Koob says. Transferring the patient to the observation unit is insufficient to satisfy those obligations.
“Where a patient is admitted for treatment as an inpatient in good faith, an exception to EMTALA likely applies,” Koob adds. The EP’s EMTALA obligations then are satisfied. The same is true if a patient is stabilized properly and discharged.
Koob says this is a “vital” consideration for EPs making the clinical judgment regarding the need to admit patients or place them in observation.
“It is critical that physicians do not allow a patient to remain in ‘limbo,’” she underscores. “Patients in observation must be actively progressing towards the point of discharge, or considered for admission.”
REFERENCE
- Dicioccio v. Chung, No. 14-1772 (E.D. Pa., Jan. 20, 2017).
SOURCES
- Stephen A. Frew, JD, Vice President, Risk Consulting, Johnson Insurance Services, Loves Park, IL. Phone: (608) 658-5035. Fax: (815) 654-2162. Email: [email protected].
- Timothy C. Gutwald, JD, Miller Johnson, Grand Rapids, MI. Phone: (616) 831-1727. Fax: (616) 988-1727. Email: [email protected].
- Katharine C. Koob, Esq., Post & Schell, Philadelphia. Phone: (215) 587-1020. Fax: (215) 320-4787. Email: [email protected].
Sending a patient to an observation unit is not legally analogous to admitting a patient to the hospital.
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