Misconceptions abound about liability exposure for patients in ED waiting rooms. ED Management (EDM) spoke with Robert A. Bitterman, MD, JD, FACEP, president of Bitterman Health Law Consulting Group, about this subject. (This transcript has been lightly edited for length and clarity.)
EDM: Who is legally responsible for patients in ED waiting rooms?
Bitterman: Assuming the individual has “checked in” as a patient (such as having signed in, was registered, or was triaged), then under federal EMTALA law, the hospital is legally responsible for the patient. These patients have met the two-prong test to trigger EMTALA. First, they have “come to the ED” as defined in the CMS regulations. Second, they have requested “examination or treatment of a medical condition.” Accordingly, the hospital now has a legal duty to provide an “appropriate medical screening exam” (as defined by EMTALA) to determine if the patient has an “emergency medical condition.”
If the hospital determines that the patient has an emergency condition, it must “stabilize” the patient or provide an “appropriate transfer” to another hospital. At this time, the hospital would also become legally responsible for the patient under state law. If an individual is in the ED but has not yet triggered EMTALA (for example, the individual has not requested examination or treatment from the ED), then the hospital has no legal responsibility to the individual. For example, visitors or employees may be merely passing through the ED. However, if the individual collapsed, coded, or in other ways indicated or appeared to staff to have an emergency condition, then EMTALA would be triggered. Then, the hospital incurs the duty to medically screen and stabilize or transfer.
Contrary to myth, the emergency physician (EP) on duty in the ED is not legally responsible for patients in the ED waiting room, for the simple reason that the physician has not yet interacted with the patient.
EDM: What are EMTALA implications if the patient deteriorates in the waiting room?
Bitterman: There is no change in the hospital’s obligations under EMTALA when a patient deteriorates in the waiting room. The hospital has the same duty to provide an appropriate medical screening exam and stabilize or appropriately transfer the patient if it determines an emergency condition exists. The fact that the patient deteriorated may be evidence of negligent triage (assuming triage already occurred) or of undue delay in the medical screening exam. Both could be evidence that the hospital failed to provide an “appropriate” medical screening exam (as defined by the federal courts and CMS).
One interesting caveat: If the hospital fails to properly treat the patient’s emergency condition and the patient dies in the waiting room or in the ED proper, the hospital cannot be held liable for “failure to stabilize” the patient’s emergency condition, even if one proves the hospital was negligent in treating that emergency condition. A hospital’s duty to stabilize a patient only arises when it transfers a patient (“transfer” legally includes all discharges from the hospital).
The term “transfer” is defined to specifically exclude anyone who leaves the hospital dead. Thus, death in the ED is an absolute affirmative defense against a “failure to stabilize” claim against the hospital, whether made by the patient’s family in civil litigation or by CMS in regulatory enforcement. Hopefully, it is not a defense that hospitals need to use very often. The hospital could, of course, be liable under state negligence laws, but not EMTALA.
Under EMTALA, the statutory definitions of common medical terms, such as transfer, stabilize, or emergency medical condition, are extremely important in understanding the law, complying with the law, and for liability under the law. The ED staff and physicians must comprehend the definitions and the ramifications of those definitions.
EDM: If a bad outcome happens in the ED waiting room, what are some likely allegations?
Bitterman: Potential allegations include failure to appropriately triage the patient, failure to appropriately reassess the patient while waiting to be seen by the physician, failure to follow the hospital’s written policies and procedures (whether that is in the triage process, reassessment process, or the medical screening examination process), and failure to provide examination or treatment on a timely basis. Failure to follow the hospital’s policies and procedures is by far the most frequent way plaintiffs successfully sue hospitals for failure to provide an appropriate medical screening examination under EMTALA.
EDM: Who can be sued if the patient never left the ED waiting room?
Bitterman: Only hospitals can be sued under EMTALA. Plaintiffs cannot use EMTALA to sue physicians under any circumstances, even if the physician was intimately involved in the patient’s care and was clearly negligent. The hospital could also be sued under ordinary state tort (negligence) laws.
If the physician was never involved in the patient’s care, the plaintiffs should also not be able to sue the on-duty EP for negligence under state law, since there never was an established patient-physician relationship between the patient and the physician. Without such privity, the physician incurs no legal duty to the patient. The hospital, the triage nurse, the registration staff, and security folks all count as agents of the hospital, so the suit would be against the hospital.
Under EMTALA, the plaintiff can only sue the hospital, never the nurses or physicians. Under state tort law, the plaintiff could sue the triage nurse, but typically the nurse is an employee of the hospital. Accordingly, the plaintiffs almost universally sue just the hospital, rather than suing the nurse personally. It is the hospital that gets sued and pays the claim. Failure of the triage nurse to recognize the acuity of the patient’s condition, failure to reassess on a timely basis, and failure to follow policies and procedures may lead to delay in the medical screening exam or access to the EP. But again, if the patient had not previously interacted with the EP (such as the EP sending the patient back out to the waiting room after examination to await lab studies so that the ED could use the patient’s room), the EP would have no liability for the patient’s adverse outcome.
One way plaintiffs sometimes get at the EPs is to sue the medical director and/or the EP group that has the contract to provide ED services to the hospital. Typically, those lawsuits allege failure to institute policies or procedures that ensure appropriate processing, medical screening, stabilization, or access to emergency services.
EDM: What are some factors that can allow the plaintiff to argue that a patient/physician relationship was, in fact, established for the waiting room patient?
Bitterman: The more a physician is involved in answering questions, providing advice, or reviewing triage data, the more likely a court would hold that a legal patient-physician relationship had been established. There is a host of factors that state courts consider in determining when patient-physician relationships are formed and, accordingly, impose a duty on the physician to provide care consistent with the state’s acceptable standard of care. Signing an order at triage for the patient would be [evidence] of a patient-physician relationship. Answering a question regarding the patient typically would not establish the legal relationship, but it may depend on the question asked. The mere fact that the EP’s name was on the chart does not mean there is a patient-physician relationship. Hospitals often routinely place the name of the EP on duty on the charts automatically before the patient is seen by the EP. That is particularly common in hospitals that always have only one EP on duty in the ED. Hospitals should not do this, because then the EP and the hospital will have to explain the naming process in court proceedings for the EP to avoid liability.
Addressing misconceptions about EMTALA and liability exposure for patients in ED waiting rooms.
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