April 2001 Bulletin

Emergency treatment law has stiff penalties

To avoid problems respond, screen, stabilize, arrange for transfer to adequate facility, medical expertise

By Phyllis J. Garrison

In 1985, Congress enacted the Emergency Medical Treatment and Active Labor Act (EMTALA) part of the Comprehensive Omnibus Budget Act of 1985 known as "COBRA." Aptly named. COBRA bites! Prior to COBRA, on-call physicians were only liable for misdiagnosis and substandard treatment. Under EMTALA, physicians also face violation of federal law.

EMTALA says Medicare hospitals with emergency departments are prohibited from inappropriately transferring or refusing to provide medical care to "any individual" with an emergency medical condition. All patients must be screened and those with an emergency medical condition must be stabilized.

The hospital’s emergency department must keep a list of on-call physicians in each specialty. The physician who is listed as "on call" for a particular specialty must respond promptly to hospital employees’ requests to provide medical screening services. If the patient has an emergency medical condition, the physician must assist in providing, within the limitations of the resources and capabilities of that emergency department, stabilizing treatment. The patient may not be transferred or discharged until the condition is stabilized.

If a violation is found, the government may exclude the offending hospital and individual doctor from participation in Medicare and Medicaid and may assess fines up to $50,000 for each violation. Hospital privileges are conditioned upon maintaining participation in Medicare and Medicaid. Therefore, physicians who are excluded from these programs may lose their medical staff privileges. Violations of EMTALA are in addition to state malpractice claims.

The primary requirement for physicians under the legislation is to avoid disparate treatment by failing to provide the same quality of examination of all patients. The physician must certify stabilization when an emergent patient is transferred. Hospitals are required to report the name and address of any on-call physician who fails to adequately respond and treat a patient with an emergency medical condition.

Take the following steps to minimize the possibility of facing federal investigation and punishment:

Adequately respond to all of the hospital’s requests for consultation. It is not always necessary to go to the hospital to examine the patient. Qualified hospital personnel can perform the screening with telephonic direction. If the patient is stable, the physician may telephonically order the discharge or transfer. The hospital signs the certification. The physician later countersigns.

1. Do not delay a medical screening for any reason. A physician was fined for delaying medical screening of a homosexual patient. The physician refused to begin treatment before the patient underwent an HIV test. Another was fined for discharging an uninsured patient with a broken neck before X-rays were read.
2. Do not delay stabilization of a patient known to suffer from an emergency medical condition. A pregnant women reported an on-call pediatrician who delivered a child with severe respiratory distress. The pediatrician decided that the baby needed special care and transferred the child without any attempt to stabilize the condition. The baby died the next day. Another pediatrician performed a medical screening on an 18-month-old child suffering from sepsis. The physician did not order a blood test because he could not get insurance approval. He transferred the patient to the insurer’s facility. The child died shortly after arriving.
3. Always take steps to ensure that a physician will be available to provide treatment if a patient must be transferred to another facility. EMTALA requires that arrangements be made between facilities for adequate accommodation and medical expertise. Citations have occurred because a physician was unavailable at the receiving facility, increasing the delay of treatment and placing the patient at risk.

Patients and their attorneys are well aware of EMTALA and its "bite."