(Editor’s note: This column is the second in a two-part response to a reader question. We repeat the entire question below to preserve continuity.)
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 nondominant hand. He also was 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 canceled. 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)? What is the responsibility of the hand surgeon?
Answer: The obligation of the on-call specialist is to assume care of patients who present to the ED and who are referred by the ED physician, notes Susan Lapenta, a partner in the Pittsburgh-based law firm, Horty Springer. The Centers for Medicare & Medicaid Services (CMS) has been consistent in its position: The ED physician gets to determine if the on-call specialist is needed and, if so, when, she explains. For example, consider that the ED physician had determined the hand surgeon was needed to suture the hand. The on-call hand surgeon would have been required to come to the hospital and provide that care, Lapenta says. At the same time, she adds, if the ED physician determines that he or she can provide the needed services, then that determination is controlling as well, and the on-call specialist has no obligation to come to the hospital.
In this particular situation, the on-call specialist is being paid, presumably by the hospital, to be on call, notes Lapenta. However, from the facts presented, she says, the exact nature of the obligation created in the on-call specialist by this payment is not clear. Lapenta notes this case is a good reminder that if a hospital is going to pay physicians to be on call, it must have a written agreement (this is also required by Stark), and the agreement should clearly articulate the hospital’s expectations for call coverage.
Question: If this patient is unable to find a hand surgeon to repair his finger and files a lawsuit, would such a suit have merit?
Answer: The patient might bring a claim against the hospital under EMTALA and claim that the hospital failed in its obligation to stabilize his emergency medical condition, Lapenta explains. (Patients cannot bring suits against physicians under EMTALA.) It is hard to predict, with any certainty, the ultimate success of any claim, she adds. However, this claim might have enough factual ambiguity to make it past a motion to dismiss or a motion for summary judgment, and that step means a jury would be allowed to decide, Lapenta says.
Another potential claim might be against the hand surgeon for abandonment; the law on abandonment is state-specific, she notes. Typically, some meaningful relationship between a physician and a patient must be established before there could be a claim of abandonment, Lapenta advises. If the hand surgeon never really assumed care of the patient, a claim for abandonment would not likely succeed, she says. However, Lapenta observes, the more involved the hand surgeon was in directing care in the ED, including giving orders, the more likely it would be that a relationship had been established.
Question: Does the hospital have any obligation under EMTALA to investigate and possibly report this matter?
Answer: Whenever a hospital has an actual or potential EMTALA violation, Lapenta strongly recommends that it take the opportunity to review the situation for lessons that can be learned. It is important to be proactive in clarifying policies, providing education, and taking appropriate action, if warranted, she says. Additionally, actions will help the hospital and the medical staff to improve their processes and avoid future investigations, Lapenta says.
Notwithstanding the importance of these performance improvement efforts, the hospital is not required to report itself, or any member of its medical staff, to CMS, she continues. It is worth pointing out that a hospital does have an obligation to put the name and address of the on-call specialist in the medical record if a delay by that person caused an inappropriate transfer, she says. At the same time, the hospital on the receiving end of an inappropriate transfer is required to report that to CMS; however, no hospital is required by EMTALA to report its own violations, Lapenta says.
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 nondominant hand. He also was experiencing a loss of sensation around the ulnar aspect of the affected index finger.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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