Warning: New regs expand your liability
Although the goal of the proposed new regulations for the Emergency Medical Treatment and Active Labor Act (EMTALA) is to make compliance easier, there is one key area that should sound off warning bells: Language stating that if the hospital admits anyone with an emergency condition from the emergency department (ED), EMTALA applies, even after the patient is admitted.
However, a recent court decision was in line with the existing EMTALA regulation, which takes the position that EMTALA doesn’t apply to inpatients. A California court found that a hospital can’t be held liable under EMTALA if it fails to detect or misdiagnoses an emergency medical condition.1
When a 17-year-old patient came to an ED with a fever and trouble breathing, he was admitted. The physician who treated the patient failed to notice a large lung abscess detected by an X-ray and discharged the patient, who died from the condition. The family sued, citing EMTALA violations, but the court ruled that EMTALA doesn’t apply once a patient is admitted for inpatient care.
The courts are "all over the map" on this issue, says Robert A. Bitterman, MD, JD, FACEP, director of risk management and managed care for the department of emergency medicine at Carolinas Medical Center in Charlotte, NC. "Some, like this decision, say no, and others say yes," he adds.
Bitterman says this is a good example of the existence of the two different enforcement arms of EMTALA: The Baltimore-based Centers for Medicare & Medicaid Services (CMS) and Washington, DC-based Office of the Inspector General, which can terminate hospitals and physicians from the Medicare program and give $50,000 fines, and the civil liability of hospitals for violations that result in harm to individuals.
"This is just another area where CMS takes an expansive view and the courts a limited view more in line with the intent and language of the statute," he says.
However, the new language in the proposed rule could result in rulings against the hospital in cases like the one above, says Bitterman, because it says that the hospital is directly liable for everything physicians do in treating emergencies, whether in the ED or inpatient setting. "That is an enormous expansion of hospital liability," he says. "CMS used to say EMTALA did not apply to inpatients. Now it does," Bitterman explains.
Reference
1. Bryant v. Adventist Health System. No. 00-16399. Court of Appeals, Ninth Circuit, California, May 20, 2002.
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