Prevent successful suits alleging failure to transfer

Do you believe that the Emergency Medical Treatment and Labor Act (EMTALA) imposes a duty to transfer patients that cannot be stabilized?

This misconception is a common one, as EMTALA actually imposes a duty not to transfer a patient that cannot be stabilized unless certain criteria are met, says Angela Cox, JD, of Brennan, Manna & Diamond in Akron, OH.

"One of these criteria is that the hospital does not have the equipment or services necessary to stabilize the patient," she says.

Physicians have a legal obligation to transfer a patient when either the standard of care or the facility's licensure requires it, says Cox. For example, Ohio statutes require that newborns born under a certain gestation age and weight be transferred to a facility with a higher level of care, unless certain criteria are met. "Pediatric and trauma unit licensure are additional examples of where there may be a duty to transfer to a higher level of care," says Cox.

She is aware of malpractice claims in which hospitals had inoperable CT scanners and patients needed CT scans. "This created a duty to transfer patients to a facility that could perform the needed CT scan," says Cox.

In one such case, a young child with a head injury was taken to the emergency department (ED), where an X-ray revealed a skull fracture. The hospital's CT scanner was inoperable, and the child was not transferred for almost four hours. "By the time the child was transferred and a CT scan was performed, the child had sustained such severe brain damage that she died a few days later," says Cox. "The child's parents claimed that she would have survived had she been transferred more promptly."¹ The hospital settled for $250,000 and received no contribution from the physicians.

"Failure-to-transfer" claims typically allege these areas:

• that a physician should have transferred the patient to a higher level of care;
• that the physician did not do so;
• that injuries resulted that would not have occurred if the patient had been transferred.

Another malpractice case involved a woman admitted to deliver a child who was diagnosed with eclampsia. A physician ordered that she be transferred to the facility's intensive care unit (ICU), which was full.² "The patient was admitted to a hospital ward, instead of being transferred to the ICU at a nearby facility. She subsequently died," says Cox. "Her husband claimed that the facility's failure to transfer her was the cause of her death."

Plaintiffs also might allege that the transfer occurred too late. "These cases tend to involve services that are ordered for a patient that are normally available at the facility, but for some reason, are not available at the particular time when ordered," says Cox. She says these items, if carefully documented, can dissuade plaintiff attorneys from filing suit in the first place:

• Documentation showing that the criteria were met for meeting exceptions to transfer requirements.
  To avoid sanctions and possible license revocation from the medical board for not transferring a pregnant woman, for example, a qualified practitioner must certify that the requirements of an emergency medical condition, including that a transfer will pose a threat to the mother or fetus, have been met.
  "These must be thoroughly documented," says Cox.
• If the patient refused the transfer, documentation as to why the transfer was recommended, the risks and benefits of the transfer, and that these were explained to the patient.
  "Have the patient sign an acknowledgement," says Cox.
• An appropriate patient plan of care for the patient.
• Physician certification, if required.
  "Violation of a statute may make it easier for a plaintiff to demonstrate that a physician's conduct fell below the standard of care," says Cox.

Psychiatric patient risks

A hospital that does not have a psychiatric inpatient unit probably does not have the specialty services necessary to stabilize a psychiatric patient. Therefore, under EMTALA, the patient should be transferred to a hospital with the necessary services for stabilization, says Mary Jean Geroulo, JD, an attorney at Wilson Elser in Dallas.

Boarding a patient in the ED when the facility does not have services necessary for stabilization of the patient could be interpreted as a violation of EMTALA, Geroulo warns. "Simply medicating the patient generally will typically not qualify as stabilization," she adds.

Patients who are on involuntary holds have to be evaluated by a psychiatrist within a short period of time, to determine if the hold is justified. "Failure to provide a psychiatric evaluation could put the hospital and the attending physicians at risk," adds Geroulo.

Even if the patient is not on an involuntary hold, a psychiatric patient boarding in an ED is not likely to receive the treatment available on a psychiatric unit. That treatment includes evaluation by nurses, therapists, and social workers trained in the treatment and evaluation of patients with mental health disorders, she explains. Geroulo recommends these practices:

• Physicians should document in detail their efforts to have the patient transferred to a facility with the appropriate services and/or the hospital's efforts to make space available in its psychiatric unit.
• If the facility does not have the capability to treat the patient and other facilities with the capability have refused the transfer, the facility/physician should report the refusal to the Centers for Medicare & Medicaid Services as a potential violation of EMTALA.

"Lastly, the facility should document the efforts and steps made to keep the patient safe, and to provide services by persons trained in the evaluation and treatment of patients with psychiatric disorders," says Geroulo.

References

1. Henry v. Felici, 758 S.W.2d 836 (Tex. App. 1988).
2. Lopez v. Contra Costa Reg'l Med. Ctr., 903 F. Supp. 2d 835 (N.D. Calif. 2012).

SOURCES

• Angela Cox, JD, Brennan, Manna & Diamond, Akron, OH. Phone: (330) 374-7475. Fax: (330) 374-7476. Email: [email protected].
• Mary Jean Geroulo, JD, Wilson Elser, Dallas. Phone: (214) 698-8027. Fax: (214) 698-1101. Email: [email protected].