Question: I am a chairman in an ED, and this case recently occurred: A man came to the ED after cutting his flexor tendon at home. He had 100% flexor cut on his non-dominant hand. He was also experiencing a loss of sensation around the ulnar aspect of the affected index finger. The patient was sutured in the ED, and the hand surgeon was consulted.
The patient was seen the next day by the hand surgeon in his office. The hand surgeon agreed to schedule surgery four days later. The patient, who did not have insurance, was told that he needed to come up with $1,200 for the surgery. The patient was unable to do this, and the surgery was cancelled. The hand surgeon suggested that the patient go to another medical center and get the hand repaired.
The hand surgeon is paid $350 per day to be on call and take care of emergencies. Our bylaws do not require the on-call physician to have any in-office follow-up without payment. Is this a violation of the Emergency Medical Treatment and Labor Act (EMTALA)?
Answer: EMTALA requires a hospital to provide a medical screening examination for all persons who present requesting care or treatment, notes Susan Lapenta, a partner in the Pittsburgh law firm Horty Springer. The purpose of the screening exam is to assess the patient’s condition and determine whether the patient is in an emergency medical condition (EMC). If a patient is in an EMC, she notes, the hospital has an ongoing obligation to stabilize the patient’s condition and/or resolve the EMC. These efforts typically are undertaken by the ED physicians and the on-call specialists; once the EMC is stabilized, Lapenta notes, the obligations of the hospital and the on-call specialist are satisfied.
The answer to the question of whether EMTALA has been violated in this situation is part legal and part medical, she says. If the patient continued to be in an EMC after his hand was sutured in the ED, then there was an ongoing obligation under EMTALA, Lapenta says. Both the hospital and the on-call specialist could be found to have violated the law, she says. However, if the EMC was resolved when the patient’s hand was stitched up in the ED, then, technically, there has been no violation of the law, she says. The determination of whether a patient is in an EMC is made by the ED physician, she says.
In the past, she notes, the Centers for Medicare & Medicaid Services (CMS) took a more stringent view of "unresolved" EMCs or EMCs that needed some follow-up care on an outpatient basis. CMS considered these patients EMTALA patients, and all the EMTALA rules applied to their follow-up care, Lapenta says.
However, CMS seems to have backed off this position, she says. Now, all that is required is that there is a follow-up plan for care, Lapenta says. Once that has occurred, there are no longer any EMTALA obligations, she says.
It is nevertheless difficult to give definitive advice in this area, because each situation is so fact-specific, says Lapenta. That means a hospital (and on-call specialist) may not know if it is on the right (or wrong) side of EMTALA until there is an investigation and CMS renders a final report. She suggests a more conservative approach that focuses on what is best for the patient. This helps reduce the number of complaints and thus reduces the likelihood of an investigation by CMS.
A requirement in medical staff bylaws, rules and regulations, or policy that delineates the obligations of on-call physicians can be very helpful, adds Lapenta. These obligations can, and often do, exceed what is technically required by EMTALA. For example, she suggests, to avoid the situation that happened in this example, a hospital and its medical staff could have a policy that requires the on-call specialist to provide necessary care that otherwise would have been provided in the hospital.
[Editor’s note: This is the first in a two-part response to the reader question. In next month’s issue, we will address the following questions: What is the responsibility of the hand surgeon? If this patient is unable to find a hand surgeon to repair his finger and files a lawsuit, would such a suit have merit? Does the hospital have any obligation under EMTALA to investigate and possibly report this matter? This column addresses readers’ questions about EMTALA. If you have a question you’d like answered, contact Steve Lewis, Editor, ED Management, 215 Tawneywood Way, Alpharetta, GA 30022. Phone: (770) 442-9805. Fax: (770) 664-8557. E-mail: [email protected].]
Source
For more information on the Emergency Medical Treatment and Labor Act, contact:
- Susan Lapenta, JD, Partner, Horty Springer, 4614 Fifth Ave., Pittsburgh, PA 15213. Telephone: (800) 245-1205. E-mail: [email protected].
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