Nonphysicians must follow protocols to the letter
(Editor’s note: This is the first of a two-part series on nonphysicians and medical screening examinations. This month, we cover what to include in protocols for this practice. Last month, we covered EMTALA compliance and liability risks.)
If you use nonphysicians to conduct medical screening examinations (MSEs), you’ll need to follow protocols to the letter, warns Stephen Frew, JD, president of the Rockford, IL-based Frew Consulting Group, which specializes in compliance with the Emergency Medical Treatment and Active Labor Act (EMTALA). A large number of the cited cases for EMTALA violations have involved the failure to follow the standards for allowing nonphysicians to do the MSE, Frew notes.
"Physician’s assistants [PAs] and nurse practitioners must work under protocols and supervision of the emergency physician," according to 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.
Numerous EMTALA violations have involved PAs failing to follow protocols, warns Bitterman. For example, the PA was supposed to have the physician see all children less than 6 months old with fever, but failed to do so, and the child suffered an adverse event, he says. Besides ordinary malpractice, the hospital is liable for violating EMTALA because it failed to screen the patient according to its established procedures, says Bitterman.
Tips to avoid liability
Here are ways to avoid problems regarding protocols for MSEs:
• Only allow individuals with appropriate training to perform MSEs. Unlike physicians, whose practice review is a function of the medical staff, using non-physicians for MSEs require developing guidelines and policies that must be strictly adhered to, says Jonathan D. Lawrence, MD, JD, an ED physician and medical staff risk management liaison at St. Mary Medical Center in Long Beach, CA. (See table, below.)
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Checklist for MSE Protocols |
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| Here are four things you must include in protocols for nonphysicians and medical screening examinations, according to Jonathan D. Lawrence, MD, JD, an ED physician and medical staff risk management liaison at St. Mary Medical Center in Long Beach, CA: | |
| 1. | the exact parameters for each presenting complaint that constitutes an "emergency medical condition" |
| 2. | a policy that must be followed by the ED if a nonphysician screener finds an emergency medical condition; |
| 3. | an auditing system by which the department reviews the practice of the non-physician screeners, including quality control procedures when deviations from the standards are discovered; |
| 4. | guidelines and audits for continuing education of non-physician screeners. |
Technically, any licensed medical person, presumably including nurses and emergency medical technicians, can be authorized to perform MSEs under EMTALA if a hospital so chooses, notes Lawrence. "But the less training the person has, the more likely emergency medical conditions that are subtle and fall outside any guidelines developed will be overlooked," he says. Thus MSEs by anyone with less training than a nurse practitioner or PA is particularly risky, says Lawrence.
• Avoid over-extension of scope of practice. The most common problem with properly certified non-physician screenings has been nurses, PAs, or nurse practitioners over-extending their role and not involving a physician, when the protocol or common sense requires a physician become directly involved, says Frew. "Not understanding the state scope of practice restrictions has resulted in violations," he says. "In other cases, it has been a matter of an individual attitude of over-confidence."
Nonphysicians must operate under protocols approved by the medical executive committee, says John D. Lipson, MD, MBA, principal of Columbus, IN-based Medical Staff Support Services, which assists medical staff coordinators, medical staff leaders, and administrators. "These protocols must indicate the conditions the nonphysician can evaluate, the tests that can be ordered and interpreted, and the treatments that the nonphysician may prescribe," Lipson explains.
• Identify circumstances that require a physician. Second, the protocols must indicate, in an objective manner, when a physician must be called, respond to the emergency department, and complete the MSE, says Lipson. "An effective case review process must also be in place."
• Designate individuals who are formally approved. Individuals performing MSEs must be designated as such, and approved in a formal hospital bylaw or policy by the hospital’s board of directors, says Marshall Salkin, MD, JD, FACEP, an ED physician at Northwest Community Hospital in Arlington Heights, IL, and adjunct professor of law at John Marshall Law School. "What is required is a formal hospital assessment and approval with documentation," he stresses.
Although HCFA permits the use of a non-physician to do the MSE, these individuals must be approved by title by the governing board of the hospital and be permitted by licensure to perform this function, says Lipson. "They must have proof of training to diagnosis the conditions they may encounter in the ED," he adds.
Salkin stresses that the hospital administrator, chief of staff, or chairman of the ED cannot merely delegate an individual to perform MSEs. "A formal process is definitely required," he adds.
• Include documentation requirements. Document that the nonphysicians have gone through the formal process, says Salkin. "You don’t want an informal designation to be bestowed on the nonphysician without any evidence of proper process," he warns. This is one of the reasons the use of nonphysicians is risky, Salkin explains. "It opens the door for HCFA to evaluate who is doing the MSE and whether that individual has been formally assessed and approved," he says. "Moreover, HCFA may disagree with the hospital’s choice of nonphysician MSE performers."
Sources
For more information on protocols for nonphysicians and medical screening exams, contact:
• Robert A. Bitterman, MD, JD, FACEP, Department of Emergency Medicine, Carolinas Medical Center, 1000 Blythe Blvd., Charlotte, NC 28203. Telephone: (704) 355-5291. Fax: (704) 355-8356. E-mail: [email protected].
• Stephen Frew, JD, Frew Consulting Group, 6072 Brynwood Drive, Rockford, IL 61114. Telephone: (815) 654-2123. Fax: (815) 654-2162. E-mail: [email protected].
• Jonathan D. Lawrence, MD, JD, Emergency Department, St. Mary Medical Center, 1050 Linden Ave., Long Beach, CA 90813. Telephone: (562) 491-9090.
• John D. Lipson, MD, MBA, Medical Staff Support Services, 6043 Chinkapin Drive, Columbus, IN 47201. Telephone: (812) 342-2658. E-mail: [email protected].
• Marshall Salkin, MD, JD, FACEP, Northwest Community Hospital, 800 W. Central Ave., Arlington Heights, IL 60005. Telephone: (847) 618-4000.
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