ER Call: Another Layer of EMTALA Liability Continued from Page 1

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Fall 2006 Volume 16 Number 4 OPHTHALMIC MUTUAL INSURANCE COMPANY

Ophthalmic Risk Management Digest

MESSAGE FROM THE CHAIRMAN

One of the measures of a com- ER Call: Another Layer pany’s success is the strength and continuity of its leadership. OMIC is the only insurance carrier gov- of EMTALA Liability erned by a Board of Directors and Committees composed entirely of ophthalmologists who By Tamara R. Fountain, MD understand both the practice of Dr. Fountain is a member of OMIC’s Audit, Finance, and Insurance/Marketing ophthalmology and the challenges of modern Committees. This article, originally published in the Digest in 2001, has been day medicine. At the end of this year, we say updated to reflect current law. goodbye to two long-time OMIC supporters who will complete their final terms as directors: Bruce ans of the hit television series, ER, are familiar with this E. Spivey, MD, and B. Thomas Hutchinson, MD. scenario: a patient is rushed to the ER in need of life-saving These two distinguished leaders in ophthalmol- Ftreatment but the specialist on call, be it an OB/GYN or CT ogy have helped OMIC attain its high level of surgeon, fails to answer the ER's page. Drs. Weaver, Carter, and achievement and recognition in the health care Company are then charged with cracking chests, doing stat and insurance industries. sections, and taking other heroic measures to stabilize the No one was more instrumental in bringing to patient—all in one entertaining hour, including commercials. fruition the visionary plan that became OMIC Even Hollywood knows that transferring an unstable patient than Bruce Spivey. As executive vice president of is against the law. That federal mandate, the Emergency the American Academy of Ophthalmology in Medical Treatment and Active Labor Act (EMTALA), is part of 1987, Dr. Spivey put the Academy’s resources the Comprehensive Omnibus Budget Reconciliation Act behind the creation of a freestanding indepen- (COBRA) passed by Congress in 1986. This well-intentioned dent professional liability insurance carrier piece of legislation was enacted to discourage hospitals from turning away patients based on their ability to pay. Widening continued on page 2 legal interpretation of EMTALA provisions has created a host of accountability and risk management issues for physicians who provide emergency room coverage. IN THIS ISSUE Under EMTALA, any patient who presents to a hospital ER must be afforded an “appropriate medical screening examination to determine the presence of any emergency 2 Eye on OMIC medical condition.” EMTALA defines emergency medical New Non-surgical Coverage Class condition as one in which “the absence of immediate medical 3 Policy Issues attention would…result in placing the person's health in serious jeopardy, cause serious impairment to bodily functions OMIC Revises Policy for 2007 or cause serious dysfunction to any bodily organ or part.”1 An 6 Closed Claim Study appropriate medical screening examination need satisfy only two elements to be compliant with EMTALA standards: (1) it Traumatic Eye Injury and Patient Abandonment should be reasonably expected to identify an emergency 7 Risk Management Hotline medical condition; and (2) it need be directed only at the signs Follow-up Duty to ER Patients and symptoms described by the patient or identified by the physician—NOT signs and symptoms the physician is not made 8 Calendar of Events aware of or might otherwise overlook.2 Online Courses, CD Recordings, Upcoming Seminars

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If the ER physician determines personnel to care for the patient has Frequently Asked Questions that an emergency medical condition been identified and has agreed to About ER Call exists (or cannot be ruled out), he or the transfer; (3) all records are sent, she may refer the patient to the including informed consent, the Q: Do I have to take call at my appropriate physician on call for transferring doctor’s certification local hospital if most of my evaluation and management. The that transfer is in the best interest cases are handled in an ASC? on-call physician is not only obligated of the patient, and, if applicable, A: It depends. Federal laws do to answer a page in a “timely the name and address of any not mandate taking calls, but fashion” (the definition of which is on-call physician who refused or whether you volunteer, take usually buried in one's medical staff failed to evaluate the patient; and call as a requirement of medical bylaws) but to evaluate the patient (4) qualified personnel, equipment, staff bylaws, or independently in the ER if requested to do so by the and transportation are utilized to contract your services to an ER, ER physician. The on-call physician effect the transfer. once you enter into a formal must never try to talk the ER doctor Under most state laws, hospitals agreement to provide emergency out of a request to evaluate the that are legally obligated to provide coverage, you must comply patient. It may sound like the most emergency care are also obligated with EMTALA regulations. Some routine, unequivocal case of conjunc- to accept a patient transferred from ophthalmologists need hospital tivitis to you over the phone at one another facility. Not as widely privileges as a condition of o'clock in the morning, but if the ER recognized, however, is an EMTALA being a provider in a managed doctor asks you to come in, you must provision affectionately known as care contract and end up with do so. (By the way, in the real world, the “snitch rule.” This whistleblower call coverage as a result of those on-call OB/GYN and CT sur- statute obligates the receiving those privileges. geons who failed to respond to their hospital to report any inappropriate pagers in the ER episode would be transfers to federal authorities. Q: My hospital’s ER is poorly subject to EMTALA fines of up to Failure to report such an infraction equipped to evaluate and $50,000 each.) may invoke the same penalties for manage eye emergencies. Do I the receiving hospital (fines of up have to come in if I know the Appropriate Patient Transfers to $50,000 and exclusion from patient will be transferred So you leave your daughter's piano Medicare) as are levied on the anyway? recital to see a patient in the ER. hospital that initiated the transfer. A: Yes. You are still obligated to You diagnose an open globe with While this covers the primary stabilize the patient within the vitreous presenting at the wound— areas of EMTALA's impact on ER available capabilities of the a qualifying emergency medical call physicians, there are many gray hospital's staff and facilities. condition. But the hospital's areas not addressed by its statutes Once the risks of transfer have vitrector is being repaired and there (see Frequently Asked Questions been minimized and if you is no surgical eye team available. About ER Call and this issue’s determine that the benefits of What should you do? If the hospital’s Risk Management Hotline, which transfer outweigh the risks on facilities or ancillary staff are elaborates on follow-up duties). an unstable patient, you must inadequate to treat a patient with an As legal interpretations and effect a transfer. Later, you emergency medical condition, a provisions vary from state to state may want to discuss with your transfer must be effected. and hospital to hospital, OMIC department chair or the ER Since EMTALA was enacted to recommends that ophthalmologists department the need for prevent indiscriminate transfer seek the counsel of their hospital adequate equipment to properly of patients to other facilities, one medical staff office or our risk evaluate and manage common would expect strict guidelines on management department for eye emergencies. what constitutes an acceptable further guidance. transfer. Federal law defines an Q: I'm on call during a busy clinic appropriate transfer as one in day and get called to see a 1.42 C.F.R. §489.24(b) which: (1) the patient has been 2.Reynolds v. Maine General Health 1st Cir, 2000 patient in the ER. Wouldn't it be treated within the capacity of the 218F.3d78. easier to have the patient come transferring hospital, thereby to my office for an evaluation? minimizing the risks of transfer; A: Yes, but only easier for you. The (2) a hospital with the space and ER doctor is asking you to come

4 Fall 2006 O PHTHALMIC M UTUAL I NSURANCE C OMPANY in to see the patient and, instead, physicians are not in violation of medical staff bylaws may require you are proposing that the EMTALA for failing to treat an you to see the patient. When in patient come to your office emergency medical condition doubt, you should accept a solely for your convenience. if the facts demonstrate the patient who presents to your If the patient deteriorates hospital had no knowledge of office if the patient was treated enroute, you will effectively the condition despite an appro- in the ER while you were on call. have authorized, by phone, an priate screening examination. Work with your hospital to estab- inappropriate transfer under The ER doctor still may be liable lish a protocol for follow-up care. EMTALA laws. If, however, the for failure to diagnose and delay ER doctor determines that no in treatment under regular Q: The ER doctor calls me one emergency medical condition malpractice laws, however, and night and based on his or her exists, then the patient can be such situations may expose the description, I decide to wait to safely discharged from the ER ophthalmologist to malpractice see the patient in my office the to follow up in your office. claims. Thus, it is critical to next morning. Is this an EMTALA properly document and retain violation? Q: I am an oculoplastics specialist. a record of your discussion with A: It depends. If the ER doctor asks Do I have to come in for a the ER doctor. you to see the patient, you must retinal detachment? do so when called, not the next A: Yes. Staff bylaws may spell out Q: If I am called in to treat a patient morning. If the ER doctor feels the scope of your clinical privi- emergently, do I have to provide the patient is stabilized and can leges and expertise, but if you follow-up care? wait until the next morning take call, it is assumed that you A: The emergency transfer laws do and the patient's condition are capable of evaluating ocular not address the issue of follow- deteriorates because of the problems even if you're not up care to patients who have delay, the primary malpractice qualified to treat them. been treated and stabilized in liability rests with the ER doctor. Again, your job as an on-call the ER and then discharged. (EMTALA does not apply in this doctor is to stabilize the patient However, a common law duty case because the patient was and arrange appropriate to the patient may arise since, discharged in stable condition.) consultation as needed. Some arguably, a doctor-patient If the ER doctor cannot rule out hospitals arrange call schedules relationship is established by an emergency medical condition, so that various subspecialists your treatment of the patient you as the on-call specialist cannot provide back-up coverage. If in the ER, giving rise to the do so over the phone, as an a patient must be transferred expectation by that patient that appropriate medical screening to another facility, document you will provide follow-up care. exam has not technically been that the benefits of a transfer You should consult your medical performed. As always, it is critical outweigh the risks. staff bylaws, as some specifically to document your discussion address this issue. Some bylaws with the ER doctor. Q: The ER doctor calls and tells me a establish a duty and require the patient has conjunctivitis and, on-call physician to see the Q: It's bad enough that I can be while I don’t need to come in, patient in follow up and through- fined by the federal government the ER doctor wants the patient out the course of the illness that for EMTALA violations. Can I be to follow up in my office. The brought the patient to the ER. sued by the patient too? patient presents the next day A: The federal government may fine with a corneal ulcer, not conjunc- Q: A patient is evaluated and both hospitals and individual tivitis. Am I in violation of treated in the ER while I'm on call physicians for EMTALA violations. EMTALA laws? but no one notifies me. The ER Additionally, a patient may sue a A: No. If you were not asked to doctor discharges the patient to hospital for EMTALA infractions. come in, the ER doctor is effec- follow up with me the next day. A patient may NOT sue a physi- tively saying that he or she has Am I required to see this patient? cian for breaking EMTALA laws. ruled out (albeit incorrectly) an A: Not from an EMTALA stand- However, any doctor or hospital emergency medical condition point. While there would be providing emergency room care based on a screening examina- no EMTALA violation since the is subject to civil claims of negli- tion. Case law generally holds patient was presumably stabilized gence and medical malpractice. that a hospital and its ER and discharged by the ER, your

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