Malpractice limits shift litigation to EMTALA
Update your EMTALA policies now
After a period of scarce legal activity under the Emergency Medical Treatment and Active Labor Act (EMTALA), legal experts say that the past year and a half has seen a surge in the number of claims being brought under the federal law.1
Now is the time to make sure your EMTALA policies and procedures are up to date, they urge.
Many plaintiffs' lawyers are using EMTALA to avoid caps on damages that have been legislated in many states on medical malpractice and wrongful-death cases, warns Janet Adams, JD, a partner in the law firm of Adams, Hill, Reis, Adams, Hall, & Schieffelin in Orlando, FL, who represents many health care institutions. Many lawyers also have found it easier to collect damages under EMTALA claims, because they only have to show that the plaintiff was treated differently rather than inappropriately, as is the standard in most malpractice cases, Adams says.
Regardless of the reason for the surge, now is time to review your EMTALA policy to make sure it is in compliance with current law, legal experts advise.
EMTALA requires any Medicare-participating hospital to provide medical screening to all patients presenting to the emergency department. If an emergency medical condition is found, stabilizing treatment or an appropriate transfer is required. The purpose of the act is to prevent hospitals from refusing to treat people with emergency medical conditions who might not be able to pay, a practice often called "patient dumping."
To enforce its requirements, the act provides administrative sanctions, including severe financial penalties and private rights of actions to aggrieved patients. Here are four key strategies for proactively attempting to reduce your risk of EMTALA litigation:
* Establish a clear, written policy for your hospital.
Be cautious about relying on your hospital's standard practices in lieu of having a written policy, warns Philip Choate, MHA, risk manager and safety officer for Kennebec Valley Medical Center in Augusta, ME. There are still hospitals who do not have policies and procedures for transfers under EMTALA because they are secure in their practices and policies. If you subscribe to this school of thought, institute formal EMTALA policies, he recommends. Such policies are primary evidence of compliance under the law.
* Document your compliance.
Equally as important as having an EMTALA policy is documenting compliance. Adams says the statute requires two basic kinds of forms to document transfers. One form is for refusal of treatment (on the part of the patient), the other is to effect a transfer between hospitals.
The latter form also should have a place for patients or their representatives to sign as further support for the validity of the transfer should a subsequent EMTALA claim be raised, Adams recommends.
* Include practice parameters.
Recent cases interpreting EMTALA suggest that hospitals should include practice parameters in their policies. Practice parameters outline the predetermined steps a doctor should take to screen patients who present with certain symptoms.
Yet keep in mind that practice parameters in EMTALA policies can either hurt or help a claim against the hospital, Adams adds. Some courts have ruled that if a hospital follows predetermined practice parameters prior to a transfer, an EMTALA claim will not stand. Conversely, if your hospital has practice parameters as part of its EMTALA policy and then fails to follow them, the parameters "will be fatal" to the hospital's defense, she says.
* Educate emergency department staff.
While EMTALA policies may be old news to you as risk manager, it may be new to members of your emergency department. Adams encourages her hospital clients to continually educate ED staff on EMTALA because of the high turnover rates in the department.
"Any time you transfer a patient you have to dot all of your i's and cross all of your t's. It amazes me when I see claims, because you think that people know better. They are doing what they think is best for the patient, but they are not doing the best under EMTALA," Adams says.
When can you ask about insurance?
One of the most frequently asked questions from ED staffs is when a patient can be asked about insurance. The question arises because EMTALA often conflicts with HMOs' requirements to obtain approval prior to treating the patient.
Hospitals should not delay treatment while obtaining the insurance information. On the other hand, if all the treatment rooms are full and the patient will have to wait to be seen, Adams does not read EMTALA to prohibit asking about insurance information during the waiting period.
Last fall, the EMTALA statute was amended to include a new whistle-blower rule. The rule requires any hospital that has reason to believe it received a patient in violation of EMTALA requirements to report the transfer to the Baltimore-based Health Care Financing Administration or to the applicable state agency.
It is unclear whether the new rule would impose fines or penalties on a hospital for failing to report the violation, Choate says.
Hospitals must act responsibly if a violation is suspected. The most appropriate way of handling the requirement is for the whistle-blowing risk manager to call the risk manager of the suspected violator first, she recommends.
"Even if you do turn them in, the thing to do for good relations with neighboring hospitals is to call them and give them a heads up so that hospital can begin its own investigation," she says. A hospital may be able to reduce the penalties it faces for violating EMTALA by showing that it acted before a HCFA investigation.
Reference
1. 42 U.S.C. Sec. 1395. *
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