We continue with our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. In this article, the author addresses “Assumption of risk versus informed consent..” This attorney is a seasoned veteran. The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant. Please give us your feedback – and let us know if you find the series helpful.
ER physicians usually know EMTALA’s requirements and limitations very well. But physicians whose only interaction with the Emergency Department is an occasional call often do not, and so are at risk for inadvertently violating the law, leaving themselves open to be personally fined up to $50,000 as well as becoming liable to the hospital that their actions brought into violation.
Let’s therefore take a look at some common questions that a doctor on-call may have about their obligations under EMTALA.
Does EMTALA create a physician-patient relationship?
No. However, the on-call status that requires you to respond to an ER call does.
Usually, the relationship only forms when the patient actually sees the doctor for care. But in the on-call setting the relationship is created by contract with the hospital, a specific agreement to take call or a privileges agreement that requires it. Under such, you accept to consult on any patient who shows up with a problem in your specialty during the on-call period.
It also adheres because you will be dealing with staff whom you know are less knowledgeable in your specialty than you are. They will be relying on your expertise.
You should therefore always assume that even if you never see or talk to the patient that you will be held to have the relationship with them, although this is outside EMTALA. The liability implications of this will be discussed below.
Am I required to come in to see every patient that I am called about?
If the ER requests that you do so then the answer is that you must come in.
This goes to the essential EMTALA requirement that every patient must be given an “appropriate medical screening examination to determine the presence of any emergency medical condition.” If this examination either reveals a condition that the ER physician determines requires your input or if the ER physician cannot rule out such a condition then your participation becomes a required part of the process.
You can certainly question the ER staffer who contacts you about the patient’s condition, and if the result of this is that needed clarification is obtained and the request for you to come in is withdrawn, then that would be acceptable, but you cannot talk the ER out of bringing you in.
If I am on-site but not in the ER – let’s say that I am in my office or in clinic – can the patient be sent to me?
To the extent that the patient is still deemed to be in an unstable condition, no. In fact, requiring the patient to leave the ER to come to you would actually constitute an “inappropriate transfer” under EMTALA (see below for what is “appropriate”).
The only exception would be the compelling need of another patient that you are treating when you receive the call. In that case a back-up system that the hospital has in place should be activated.
Of course, if the ER determines that the patient is now stable, and no emergency condition still exists, they can be discharged from the ER to come and see you while they are still on-site.
What does “timely” mean in terms of EMTALA compliance as far as my coming in?
There is no specific definition in the law but CMS advises hospitals to establish and enforce a set response time in minutes. Most hospitals will use 30 minutes or less. Since hospitals that fail to enforce call requirements may be subject to EMTALA penalties you should expect that what your hospital specifies will be held strictly.
Can I send my PA or NP instead?
Only if your hospital has approved this and it is clinically appropriate, and even then, not if you are requested to personally come in.
My hospital is not capable of dealing with serious emergencies in my specialty. Do I have to come in if requested even if I know that I will just be recommending transfer?
Yes, and this would also apply if the hospital typically had capability but not at the moment because, for example, a critical piece of equipment is not working.
In fact, if a transfer needs to be carried out because you refused to come in, that information, including your name and address, will go to the accepting hospital and you can be quite certain that a report will be made.
I practice in only one aspect of my specialty. What if I am called for an aspect that I do not practice?
In this regard your EMTALA responsibilities derive from the determination of your hospital that you can cover your specialty, at least as far as evaluating issues even if you cannot treat them.
Your role would be to assess the patient and stabilize them as best you can and to arrange for an appropriate consultation or tell the ER that a transfer is needed.
If I come in and determine that the patient’s condition exceeds what I am able to take care of at my hospital, either because of my own skill set or the hospital’s facilities, how do I get it transferred?
EMTALA does not require that patients be kept where they cannot be properly cared for but the transfer must “appropriate” – in other words, a transition to get medical expertise or technological access rather than a dump for financial or social reasons.
For a transfer to be “appropriate” the following criteria must be met:
– the patient has been treated within the capacity of the transferring hospital
– the risks of transfer have been minimized as much as possible
– a hospital able to provide the needed care has been identified and has agreed to the transfer
– qualified personnel, equipment and transportation will be used to carry out the transfer
– all records are sent, including informed consent if needed, and the transferring doctor’s certification that transfer is in the best interest of the patient.
Your assessment of the need for a transfer and any stabilizing treatment that you render are essential aspects of the first and second criteria. You may also be needed to interact with the accepting hospital to explain the need.
In other words, the ER staff will be doing the logistics of the transfer but you are integral to the process.
If the ER calls and says that the patient has a condition that is not serious and they don’t need me to come in and that they are just letting me know because they want me to see the patient for follow-up, but it later turns out that it was serious and they should have asked for me to come in, am I in violation of EMTALA?
No – EMTALA does not require you to be psychic.
When the ER says that you do not have to come in they are really saying that an emergency medical condition that requires your presence has been excluded, cutting off any obligations that you would have under EMTALA as the physician on-call.
However, EMTALA is not the sole determinant of your liability when you are called as a consultant by the ER. As discussed above, a physician-patient relationship adheres through your contract for coverage / privileges agreement with your hospital that obligates you to take call and it applies even if you never see the patient. You are therefore under a standard duty to be reasonable under the circumstances, which requires you, since you know that the person calling you is not a specialist in your area, to question what were the signs and symptoms and what treatment was given. A failure to do so can then underpin a malpractice action against you, despite your actual compliance with EMTALA, if it turns out that the ER made a mistake that you could have caught by asking the appropriate questions. You should therefore document and keep a record of your discussions with the ER in cases in which you will not actually be going in and personally adding to the hospital chart.
If the ER calls me to come in because they have accepted a transfer and when I evaluate the patient I see that it was really just a dump, do I have any recourse?
Not just recourse but an actual responsibility.
Under what is colloquially referred to as the “snitch rule” – a whistleblower aspect of EMTALA – a receiving hospital must report inappropriate transfers. Failure to report such may actually result in the same penalties being levied against the receiving hospital as are levied on the transferring hospital.
If you determine that the transfer was not appropriate you should inform the ER administration.
However, there is no recourse against your own hospital for the unnecessary call because they acted in good faith when they called you.
Does EMTALA require me to provide follow-up?
No. Any such duty would derive from your separate agreement with your hospital that specifies your call-related duties.
Can I be sued under EMTALA?
No. You can be fined for a violation but a lawsuit against you, presumably alleging negligent care, would be under state tort law, separate from EMTALA.
In summary: Many physicians are confused about the requirements of EMTALA when they are on-call, but these basically resolve to a prompt response to the ER’s request for either guidance or a hands-on evaluation of the patient. The on-call physician may recommend transfer when needed, but must evaluate the patient before doing so if requested by the ER. Physicians should also bear in mind that they are subject to state professional negligence laws, exclusive of EMTALA. Post-discharge responsibilities will be determined as per the physician’s call agreement with their hospital.
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