Just because the final Emergency Medical Treatment and Labor Act (EMTALA) eased some of the prior burden on hospitals doesn’t mean you should go overboard in trying to divine exactly what is and isn’t allowed, says Mark Cohen, ARM, RPLU, CPHQ, CPHRM, risk management consultant with Sutter Health in Sacramento, CA.
If you focus too much on what you might be able to get away with now, you may be missing the big picture and setting yourself up for other liabilities that are just as bad, he adds.
Cohen has been fielding questions from risk managers since the final rule was released and says there is a tendency to become bogged down in minutiae at the expense of doing what you otherwise would know is right. People try so hard to interpret the confusing details of the law that they can overstress how much those details matter, he notes.
In many cases, the risk manager and clinical staff can rely on doing what seems like the sensible, most well-intended thing when it comes to responding to those seeking help. Though the final EMTALA rule eases some previous obligations, that doesn’t mean the hospital should seize the opportunity to turn people away, Cohen says.
EMTALA isn’t only risk to avoid
"Keep your eye on the prize, which is providing good, expeditious patient care. You can discuss how many angels can dance on the head of a pin as long as you want, but you risk losing sight of the whole point of the exercise," he says. "Even if you’re complying technically with EMTALA, you could be exposing yourself to civil liability or malpractice. If you do the dumb thing because you think you’re being cute in living right on the edge of EMTALA, you could really regret it when you find out the other ways you can be held liable."
If someone is hurt on or even near your property, it won’t be hard for the plaintiff’s attorney to find a way to allege you were responsible. If you avoid providing prompt care for that person because EMTALA did not apply, you only make things worse when it comes time to settle the case, Cohen adds.
"Besides, it’s just good business to have a good visitor safety program. If someone is walking across your parking lot and falls, does it really matter whether they’re covered by EMTALA? Is your response going to be any different?" he asks. "If people keep their heads on straight and remain committed to their mission, it becomes almost academic whether some incidents are EMTALA or not."
Calls to private physician still risky
Cohen points out another area in which health care providers may let their guard down too much after hearing that the final EMTALA rule made things easier. The previous version of EMTALA allowed only physicians at the hospital to call the patient’s private physician for additional information that could aid in providing proper treatment. The final rule eased that restriction by saying that any qualified medical person, such as a nurse, may make the call instead of the physician.
That’s a welcome modification, Cohen says, but the emergency staff still should be cautious about how those calls are made. The call must be restricted only to gathering information that is needed for assessing and treating the patient. Any other information takes you into dangerous territory.
"You certainly can’t make that call for the purpose of requesting authority to see the patient. Emergency doctors need to be sensitive to that," he says. "If they’re going to be calling that primary care doctor and talking about payment or anything else not related to the patient’s immediate care, they’re running the risk of an EMTALA violation."
Emergency department staff also must understand that this call can lead to inadvertent EMTALA violations if the primary care physician gives instructions that would interfere with the required screening and treatment.
"If the contacted physician says, Just send the patient to me and don’t do anything,’ you can’t respond to that. You still have to assess and treat the patient as you see fit," Cohen says. "Don’t be drawn in to an EMTALA violation by another doctor who says, Don’t treat my patient.’"
Just because the final Emergency Medical Treatment and Labor Act eased some of the prior burden on hospitals doesnt mean you should go overboard in trying to divine exactly what is and isnt allowed.
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