Misinterpretation of the Emergency Medical Treatment and Labor Act (EMTALA) is the focus of a recently published policy statement from the American College of Emergency Physicians (ACEP).1
“EMTALA should not be interpreted to extend beyond the actual statutory language with respect to an investigation or when considered in conjunction with medical malpractice litigation,” the group wrote.
“This is a statement by a professional body that says, ‘We want you to follow the law,’” says Robert Bitterman, MD, CEO of Harbor Springs, MI-based Bitterman Health Law Consulting Group. Bitterman argues that the Department of Health and Human Services’ Office of Inspector General (OIG)’s interpretation of EMTALA is “dead wrong, legally.”2
OIG spokesperson Donald White says, “OIG evaluates each enforcement case depending upon its specific facts and circumstances. Therefore, we cannot make any general statements concerning EMTALA.” A CMS spokesperson said, “The EMTALA statute and regulations are unchanged. There is no effort to broaden the interpretation of these terms beyond the legislative intent and legal definitions by CMS Regional Office or State Survey Agency surveyors when assessing compliance with EMTALA requirements in hospitals and critical access hospitals.”
Bitterman disagrees, asserting that CMS is disregarding the interpretation of the federal courts. “They are an executive branch of the government that says judicial interpretation does not apply to them.”
Both CMS and OIG declined to comment specifically on the ACEP policy statement.
There are liability implications for both emergency physicians (EPs) and hospitals if EMTALA is misinterpreted to apply to conditions other than “emergency medical conditions” as defined by the federal statute.
“It threatens to turn EMTALA into a federal malpractice statute rather than an anti-dumping statute,” says Timothy C. Gutwald, JD, a healthcare attorney in the Grand Rapids, MI, office of Miller Johnson.
Gutwald urges EDs and hospitals to reexamine their current EMTALA policies and procedures regarding who is entitled to stabilizing treatment and what is required to stabilize a patient for transfer or discharge.
“Emergency medical condition” is defined narrowly in the statute and applies only to conditions that put the patient’s health in serious jeopardy, Gutwald notes. The original intent of the 1986 law was to prevent hospitals from turning away very sick patients out of fear of uncompensated care.
“By broadening the types of conditions covered by EMTALA, the statute becomes much more than an anti-dumping statute,” Gutwald says. Here are some concerns:
• Some plaintiff attorneys are holding up EMTALA as representing the standard of care in malpractice litigation. “Plaintiff attorneys are trying to apply the language of absolutes to the standard of care, which is very nuanced for a particular situation. There’s not a one-size-fits-all definition,” says John Bedolla, MD, FACEP, chair of ACEP’s medical legal committee. Bedolla also is national director of risk for US Acute Care Solutions.
The legal standard of care is determined by multiple factors, including the most current literature and the most current state of practice. When plaintiffs misconstrue EMTALA in this way, ED defense teams now can reference the ACEP policy statement.
“It was put in place to stop that drift. It allows the defendant to say, ‘It’s inappropriate to use statutory language to determine the standard of care,’” Bedolla explains.
• In some cases, an EP’s decision-making as to the presence of an “emergency medical condition” as defined by EMTALA is looked at retrospectively. “If our judgment is wrong, if the adequacy of the exam isn’t correct, that’s a malpractice question, like it’s always been,” Bitterman says.
If a patient is later determined to have had an emergency medical condition, even though the EP did not believe so at the time of the ED visit, it does not necessarily mean there was an EMTALA violation. “But CMS thinks that if their medical review physician evaluates the case and disagrees with the emergency physician, that’s an EMTALA violation because they missed an emergency medical condition,” Bitterman offers.
EPs worry that in the event an EMTALA violation is alleged, CMS investigators may investigate the EPs’ medical decision-making. This can, in turn, trigger a state licensing board investigation. “Every judgment you make can be second-guessed and called an EMTALA violation,” Bitterman adds.
• Occasionally, CMS surveyors misconstrue requirements for stabilization. “Medicine encompasses risks and probabilities,” Bedolla says, noting that the legal definition of what care is required does not always equate to the medical definition.
Guaranteeing a patient will remain stable during transfer “is outside the realm of medical possibility,” Bedolla argues. EPs can only do their best within a reasonable probability. Thus, the fact that a patient decompensated en route to the receiving hospital does not necessarily mean EMTALA was violated. Generally speaking, CMS investigators agree with this.
“But from time to time, CMS investigators have a retrospective bias,” Bedolla notes. In some cases, a patient requires transfer who cannot be stabilized in the ED. In this scenario, the requirement is to stabilize the patient as much as possible prior to transfer.
“It’s certainly the best chance for the patient versus staying where you cannot deal with the problem and they’re unstable,” Bedolla says.
But what if a CMS investigator concludes EMTALA was violated because the unstable patient was transferred or because a patient did not remain stable during transport despite the ED providers’ best efforts? Hospitals are left with little recourse. “It is possible for hospitals to take the OIG to court. But that costs time and money. A lot of people just don’t do it. It’s cheaper to settle,” Bitterman adds.
• CMS added the words “including psychiatric disturbances and/or symptoms of substance abuse” to the regulatory definition of an emergency condition and to the EMTALA physician review worksheet investigators use. The statute itself says nothing about psychiatric disturbances or substance abuse. “The problem is that CMS and the OIG believe that psychiatric disturbances or symptoms of substance abuse are themselves an emergency condition,” Bitterman argues.
The statute and CMS’s own regulations state that the symptoms must be “such that the absence of immediate medical attention could reasonably be expected to result in placing the health of the individual ... in serious jeopardy.” (Read more at: https://bit.ly/2RmRs5y)
“CMS and the OIG ignore the fact the symptoms must need immediate medical attention to prevent harm to the individual,” Bitterman argues.
Many EDs routinely board psychiatric patients while waiting for an available bed at a receiving facility to become available. “If we can stabilize [patients] in the ED, which we can do and have done for many years, EMTALA ends,” Bitterman offers.
However, the newly added language indicates otherwise. “CMS claims that if the patient remains suicidal, then [there is] an unstable ‘emergency medical condition’ for the entire time they are in the ED awaiting transfer,” Bitterman maintains.2
According to the expanded interpretation, someone presenting to an ED reporting substance abuse and asking for help equates to an “emergency medical condition” under the law, an interpretation Bitterman believes is “just false.” The same concern pertains to patients with severe pain — by itself, that constitutes an emergency medical condition under EMTALA. “That is wrong, too,” Bitterman argues. “Just like any other medical condition, it needs to be investigated to determine if there’s an emergency present.”
If CMS’ interpretation is correct, Bitterman adds, it means that under EMTALA, no managed care patients with psychiatric conditions could be transferred to another facility that takes the patient’s insurance and that no indigent patients could be transferred to state psychiatric hospitals. “It dramatically changes the ability to move patients around, both for efficiency and, sometimes, for economics,” Bitterman offers. “It’s not illegal to transfer patients for economic reasons as long as they can get there safely.”
Bitterman sees these unintended consequences of misinterpretation of EMTALA regarding psychiatric patients:
- Hospitals with psychiatric units, which previously rarely kept psychiatrists on their call schedule, now require psychiatrists to take many more ED calls. In some cases, this has resulted in the psychiatrists dropping their inpatient privileges, according to Bitterman;
- Psychiatrists already on the call schedule are asked to come to the ED much more frequently, often unnecessarily.
If the increased on-call burden causes psychiatrists to resign from the medical staff, access to care is diminished. “This was not CMS’ intent at all,” Bitterman argues. “The flip side is on-call psychiatrists do come in now if you need them.”
According to the CMS spokesperson, the EMTALA regulations at 42 CFR 489.24(b) have included reference to “psychiatric disturbances and/or symptoms of substance abuse” in the definition of emergency medical condition for more than 20 years. “This is not new language,” the spokesperson says. “Neither the definition nor our interpretation implies that every individual who presents with a psychiatric or substance abuse issue is experiencing an emergency medical condition in need of stabilizing treatment as required by EMTALA.”
(Editor’s Note: OIG declined to comment on Bitterman’s assertions about the agency’s interpretations of EMTALA.)
To avoid problems regarding EMTALA and psychiatric patients, Bitterman advises ED staff to ask themselves these questions:
- How is the ED taking care of patients when they are boarded?
- Does the ED take care of patients’ medical needs?
- Does the ED protect patients from elopement and self-harm?
- Do ED providers attempt to address patients’ psychiatric needs with medications or involvement of mental health psychiatric workers, where possible?
- Are available resources used?
Capitalizing on widespread confusion over its requirements, some plaintiff attorneys are adding EMTALA claims to ED malpractice lawsuits. “There are legitimate plaintiff attorneys who are out there for the truth,” Bedolla says. “There are also attorneys who add gasoline to the fire to see what happens.”
Making an EMTALA claim part of malpractice litigation complicates things for the defense for several reasons. “It ups the ante. EPs may be more inclined to settle,” Bedolla notes.
Many settlements are confidential, making it impossible to know how many lawsuits with EMTALA allegations are settled.
“The key is to be able to make an argument to the judge that EMTALA cannot be used in litigation over and above the standard of care” Bedolla explains. The mere words “EMTALA violation” strike fear in the hearts of many ED defendants. “There is a perception that you have more to lose because this element of EMTALA hangs over the case,” Bedolla adds.
Once a plaintiff attorney reports an EMTALA violation to CMS, information on any resulting investigation can be obtained through the Freedom of Information Act. However, the results of investigations are discoverable, although not always admissible.
“One of the federal courts has said it’s not admissible because it’s not reliable or trustworthy,” Bitterman says. The reasoning is that the fact that a government agency has said the hospital violated a statute is prejudicial because there is no due process, he explains. Still, plaintiff attorneys can use the information they obtained about the EMTALA investigation in depositions. Additionally, if peer review occurs on a potential EMTALA issue, the usual state law protections do not apply in federal court — and the information is discoverable. Including EMTALA in malpractice litigation can allow the plaintiff to get around state tort reforms, statute of limitation requirements, and damage caps. Perhaps most importantly, it keeps the hospital in the litigation as a “deep pocket.”
“It’s easier for juries to award money to ‘bricks and mortar’ rather than individuals,” Bitterman argues.
Most plaintiff attorneys are aware the EP almost certainly will be dismissed from the EMTALA claim. The law is clear that only hospitals, not individual EPs, can be sued under EMTALA. “What they’re trying to do is create a wedge between the institution and the emergency physician,” Bedolla offers. The hospital is left to defend the dismissed EP’s actions under the theory of apparent agency, or use the “empty chair” defense and blame the EP. Regardless, the hospital’s policies and procedures relating to screening and stabilization will face close legal scrutiny. Many were not followed to the letter or are outdated in terms of EMTALA. “All of this means that the hospital has a very big interest in making sure thing are done right,” Bitterman says.
Gutwald says EPs should be particularly careful to document why they concluded a patient did not have an emergency medical condition. This may include documenting that certain serious conditions were ruled out and why. Also, the EP should document that the patient was stable at the time of discharge.
The medical record should reflect that vitals were stable shortly before discharge and that the patient’s condition improved during his or her ED course. This documentation allows EP defendants to argue that the patient did not have an emergency medical condition and that even if one existed, the patient had been stabilized prior to discharge or transfer. “Having both of these arguments available is very helpful in malpractice litigation or in an EMTALA investigation,” Gutwald adds.
REFERENCES
- American College of Emergency Physicians. Policy statement: Interpretation of EMTALA in medical malpractice litigation. Ann Emerg Med 2018;72:e53.
- Bitterman RA. When is a psychiatric patient stable under federal law, EMTALA? Bloomberg Law, May 8, 2018. Available to view online at: https://bit.ly/2Jr0Fqv.
Misinterpretation of the Emergency Medical Treatment and Labor Act (EMTALA) is the focus of a recently published policy statement from the American College of Emergency Physicians.
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