On-call docs present EMTALA risks for the ED
Make ED staff, consultants aware of liability
The use of on-call consultants is a common practice in emergency departments (EDs) at many hospitals. With strained budgets requiring that you get the most out of your staffing budget, using on-call physicians seems like a good way to cut costs without necessarily sacrificing patient care during slower times. But federal regulations under the Emergency Medical Treatment and Active Labor Act (EMTALA) require that you take care in using physicians in this way. Doing it wrong could be expensive and you must know the rules before you set up agreements with doctors to serve your ED as on-call consultants.
Even administrators who are well-versed in EMTALA, which is sometimes called the anti-dumping law, are challenged by the ramifications of on-call consultants.
This is a key area being investigated by the Health Care Financing Administration (HCFA), according to Steven A. Frew, a Rockford, IL-based health care attorney and consultant. The temporary closure of two New Jersey EDs for EMTALA violations regarding on-call consultants brought the issue to forefront.
Most EDs don't have full-time specialists available for neuro cases and other less common problems. But you must have agreements in place with such specialists to make sure your hospital meets its legal requirements to patients. The problem lies in consultants' resistance to ED duty and ED doctors' response.
The risk to your facility is great: A physician who refuses to take a call opens up the potential for fines and lawsuits and could even threaten your facility's participation in the Medicare program. The stakes are not small and any effort to restructure your ED should carefully consider EMTALA. As with any restructuring effort, you must consider the human side to all the issues to find an effective solution.
On-call issues a big problem
EMTALA responsibilities were extended to on-call physicians when the federal law was amended in 1988, but allegations of violations in this area are on the rise. "On-call issues and refusal of consultants to respond is the No. 2 source of citations in the country, after triaging patients out based on managed care requirements," Frew notes.
"There have been 80 investigations of EDs in California by HCFA field investigators within the last 12 months, and many of these were based on alleged violations involving ED backup panel specialists, not the ED physician," reports Wesley Fields, MD, FACEP, medical director of emergency services at Saddleback Memorial Medical Center in Laguna Hills, CA.
If a consultant doesn't respond in a timely fashion to the ED, to either to help decide whether an emergency condition exists or to help stabilize a patient diagnosed with a medical emergency, the hospital and the on-call physician are both at risk for a violation. This could bring a potential fine of up to $50,000 per provider, per patient, and the potential loss of Medicare participation.
Avoiding trouble with federal investigators requires being proactive in educating the medical staff, explains Larry Bedard, MD, FACEP, director of emergency services at Doctors Medical Center in San Pablo, CA, and immediate past president of the American College of Emergency Physicians (ACEP).
"Emergency physicians need to take a leadership role as integrators between the hospital and the medical staff and also be advocates for patients in the community," he says. "The medical staff need to be educated, because a lot of them don't have the vaguest idea about their responsibilities under EMTALA."
ED physicians are at risk
Emergency physicians have lost their jobs and had their privileges curtailed over EMTALA issues regarding consultants, notes Robert Bitterman, MD, JD, director of risk management and managed care in the department of emergency medicine at Carolinas Medical Center in Charlotte, NC.
Bitterman cites the example of one Detroit hospital, where problems arose when an on-call physician refused to come to the ED to evaluate a patient. "The ED physician treated the patient as best he could and made arrangements for the patient to be seen the following day by his physician," says Bitterman. "The patient had an OK outcome, but wasn't admitted. Later, he sued, claiming he was denied admission because he had AIDS, and the patient's lawyer notified HCFA."
When the hospital was cited for an EMTALA violation, administrators fired the ED physician, but did nothing to censure the on-call physician. "Ostensibly, this was because the hospital views the on-call physicians as revenue generators because they bring patients to the hospital from their private practice, and there is the erroneous perception that ED physicians aren't (generating revenue)," says Bitterman.
Emergency physicians should explain to consultants that they are also liable for EMTALA violations. "If a physician's name is on the list, under certain circumstances he is duty-bound to come in under federal laws," Bedard says. "On-call physicians have a moral, ethical, and legal obligation to be available on a timely basis. Remind them that they fall under EMTALA and can't pick and choose their patients."
Taking call can be risky
As physicians realize the extent of their responsibilities under EMTALA, many are less willing to volunteer to be on call for the ED. "There is a growing awareness on the part of on-call physicians about their duties and burdens under the law, which makes them reluctant to take call," Bitterman says.
When two patients were brought to an ED in South Williamson, KY, complaining of abdominal pain after an auto accident, both the ED physician and the on-call surgeon suspected they had intra-abdominal bleeding. The surgeon refused to operate and transferred the unstable patients elsewhere - a violation of EMTALA. "He paid a $50,000 fine out of his pocket for each patient he transferred," says Bitterman.
Because of these risks, on-call physicians are asking hospitals to pay them for taking call, notes Bitterman. "They ask hospitals to pay their malpractice expense and a fixed hourly sum, or pay them at Medicare or Blue Cross rates for every patient they accept from the hospital ED," he says.
EMTALA regulations that force larger tertiary care facilities to accept patients transferred from other facilities put pressure on consultants, says Bitterman. "Referral hospitals are becoming the dumping ground for all area hospitals that don't have particular services, and the perception is that smaller hospitals are cherry picking, taking the ones that have money and transferring the ones that don't," he explains. "The on-call physician at the tertiary facility bears the burden in this scenario."
Remember that on-call physicians have valid financial reasons for being resistant, Fields notes. "Specialists on the medical staffs of hospitals that serve large numbers of medically indigent patients are understandably worried about taking ED call," he explains. "If you can't get paid for the majority of the services you provide, it doesn't make sense to take ED call on a voluntary basis. You're going to go broke that way."
Taking call can also be disruptive to a physician's private practice, says Bitterman. "It's not very appealing to have to leave the office for four hours to come take care of an ED patient who is belligerent, drunk, and not going to pay you," he says.
The trend toward reluctant consultants puts additional pressure on your ED staff.
"There has been a fundamental change in the physicians' willingness to take call," says Bedard. "That adds a tremendous amount of anxiety and risk to what we as emergency physicians do, because in some cases we are not providing patients with the service they deserve."
At the same time, hospital administrators are pressuring more physicians to accept the responsibility of taking call. "According to HCFA regulations, just because physicians weren't taking call before doesn't mean they shouldn't be now," notes Bitterman. "Physicians such as ophthalmologists and psychiatrists, who normally have had consulting practices, now must take ED call."
Consider these pressures when trying to encourage consultants to take on the responsibility, says Fields. "You need to find some rational approach to funding emergency services, which might mean a subsidy from the hospital," he says. "You've got to be able to reimburse backup specialists. Otherwise, they have no economic incentive to participate."
EDs in many regions are having problems with consultant availability. "In California, the problem of availability of backup services is reaching crisis proportions in several hospitals," says Bedard. Neurosurgeons, plastic surgeons, orthopedists, and other specialists are in short supply, he reports.
Previously, backup was considered part of a physician's general duty and responsibility to the hospital, Bedard notes. "Now, physicians are demanding to be paid not only for seeing patients, but also for standby time," he says.
Payment for standby time is becoming akin to highway robbery, says Bedard. "In our area, neurosurgeons are receiving up to $2,000 per day for standby, even though they only get called twice a month on average, and the average reimbursement for cases they see is $22,000," he reports. "And once you start paying the neurosurgeons, who are on the high end of physician compensation, how can you justify not paying internists or orthopedists?"
Consultants on standby for more than one facility are demanding multiple fees, Bedard notes. "At my hospital, we only have two neurosurgeons, and HCFA says if we can't provide the backup ourselves, we need to have a transfer agreement with a facility that will," he says. "We wanted to transfer our patients to a trauma center that pays neurosurgeons $2,000 a day for being on call on a guaranteed fee-for-service basis. But the consultants wanted an additional $500 a day for being on standby for our hospital. It's almost like extortion."
More disturbing is the trend of consultants using federal laws to hold out for higher compensation, says Bedard. "EMTALA is fairly specific in that it requires the hospital, not the medical staff, to provide backup. Physicians have figured out that under EMTALA, it's the hospital's responsibility, not the physician's, to make sure all ancillary services are available, and they are using that as a negotiating wedge," he notes.
Conflict between physicians
Unfortunately, the frustration consultants feel at taking call is often vented onto ED physicians, says Bitterman. "On-call physicians are reluctant to come into the hospital or admit patients, so they may make it difficult for the ED physician," he explains.
Consultants may try to convince the ED physician to transfer or discharge unstable patients "They will say, 'It's not something we need to admit, why don't you go ahead and send them home,'" says Bitterman. "Or, if the patients have the wrong insurance, the consultant will say, 'Why not transfer them to the managed care hospital?' even though the requirements of the law bind that hospital and that physician regardless of insurance."
Conflicts often arise between caregivers as to whether a patient is stable. "There are often confrontational issues between ED and on-call physicians about which patients have emergencies and which can be transferred," says Bitterman.
Often, the on-call physician may insist the patient is stable for transfer to a managed care hospital, but the emergency physician doesn't agree, Bitterman explains. "Then, you have an argument between two members of the medical staff. On top of that, the hospital may not want the patient admitted because they're not going to get paid, if it's a managed care patient," he says.
As a result, the ED physician is put in a difficult position. "There is great pressure brought to bear on the emergency physician to say that the patient is stable, and take the risk of transporting the patient," Bitterman says. "That puts the ED physician right in the middle - he either keeps the patient he believes is unstable in the department and insists the consultant come in, or transfers the patient elsewhere. So you're either risking the patient or the wrath of the medical staff."
The alternative is to seek out a higher authority. "You want to have a neutral third party to take action so you don't have to transfer the patient out," says Bitterman. "The ED physician must make a judgment call [about] what is best for the patient."
If the on-call physician refuses to come in, and the ED physician makes the decision to transfer an unstable patient, it's the ED physician who is liable, stresses Bitterman. "If the on-call physician can browbeat and convince the ED physician to transfer a patient inappropriately against their better judgment, then the ED physician bears all the liability," he explains. "The only way to protect yourself and the patient is to say, 'I'm sorry, I disagree, please come in and evaluate the patient yourself.'"
In such a confrontational scenario, the consultant is likely to vent anger on the ED physician, says Bitterman. "If you force an unwilling consultant to come in enough times, you will have trouble with the medical staff, who may complain to administrators about your ED group," he warns. "Still, there are times when it's necessary."
On the other hand, if the on-call physician refuses to come in, the ED physician is required by law to transfer the patient. "If you tell the consultant they're violating the law and you must transfer the patient as a result, the on-call physician is liable for the violation," Bitterman notes.
Physicians must make a special effort to cooperate to avoid problems with EMTALA, says Frew. "This puts a premium on cooperation between the ED and on-call," he emphasizes. "That means no calling needlessly by the ED, in return for a prompt response from on-call. [This is] absolutely critical for having the least problems possible."
Problems with on-call physicians should be documented and action taken, says Frew. "The hospital needs an effective monitoring system in place so when there is an issue, it's addressed promptly rather than accumulating over years."
Put it in writing
Having a written hospital policy to facilitate consultant coverage is key, Bedard says. "ED physicians should make sure the hospital bylaws require that each specialty provide designated backup," he advises.
In particular you should watch for hospital policies that exclude physicians over a certain age, or those who have practiced for a specified number of years. "That can be difficult, since as the medical staff gets older, you may not have that many doctors under 55," Bedard warns.
Written policies should include steps to take in case of conflict. "If there is a disagreement on the disposition of the patient over the telephone, it should be incumbent on that on-call physician to come in and physically examine the patient," says Bitterman. "If it goes beyond that, the ED physician should know the next person he calls is the chairman; failing that, the chief of medical staff, and failing that, a designated administrator."
The system will protect both ED physicians and patients, Bitterman says. "You don't want to transfer unstable patients, and written hospital policy ensures you and the consultant are both acting from the same database," he says. "If the consultant comes in, actually evaluates the patient, and then still insists on discharging the patient, at that point the patient can decide who to believe."
On-call physicians should be aware of the legal ramifications of their refusal to come to the ED, says Bitterman. "If the ED physician has to transfer an unstable patient to another hospital to receive care, the hospital must, by law, send the name and address of that on-call physician with the patient to the accepting hospital," he explains. "Then, by law, the receiving hospital who received the unstable transfer must report that hospital and physician to the federal government."
Hospital administrators, ED physicians, and medical staff leadership need to address the issue of consultant coverage as a unit, Bitterman recommends. "The first step is to recognize what the law requires concerning on-call coverage to the ED and understand the huge penalties for failure to heed the law."
The time to formulate a policy is before an unpleasant confrontation occurs, Bitterman advises. "In the cool of day, openly and objectively assess the situation of how the hospital will provide services to the ED," he says
The medical staff needs to acknowledge the responsibilities of its on-call role, says Bitterman. "Physicians should understand that, when on-call, they represent the hospital, not their own private practice, and in that capacity they cannot accept or reject patients for any reason they so desire, as they can in their own private practice," he notes.
Let ED doctors lead process
Your ED physicians should lead this process with support from administrators. "They can be educators, but you won't have a system that works smoothly, and you certainly won't have good relations with the medical staff, until the hospital administrative leadership is firmly committed to providing these services appropriately," says Bitterman.
The medical staff also needs to fully participate in finding solutions to providing call services. "That may mean some financial renumeration," says Bitterman.
Hospital administrators need to discipline consultants who fail to respond in a timely fashion, Frew stresses. "Quality assurance means more than finding the problems. It also means fixing them, even if that means disciplining a physician," he says.
Disciplinary action can range from counseling to termination of privileges, but something progressive needs to occur, Frew warns. "That typically doesn't happen in these circumstances. Across the country, failure to respond tends to result in repeated warnings that go unheeded," he says. "When investigators find that, they consider that your system isn't working."
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