he Emergency Medical Treatment and Active Labor Act (EMTALA) continues to evolve across the country. Hospitals are charged with educating medical staff members to comply with EMTALA (1). As this statute enters its thirteenth year, violations continue to occur across the nation. Many hospitals continue to triage patients out of their emergency departments, to call for authorization to managed care organizations prior to a medical screening examination, and to transfer patients based on economic criteria. Clearly, all of these are violations of the statute. Hospitals must balance legal constraints as well as the economic feasibility of compliance with EMTALA. The Health Care Financing Administration (HCFA), the regulatory agency responsible for the oversight of this statute, is increasingly putting hospitals on notice of potential violations. Patients are becoming more sophisticated about their rights, and HCFA is being bombarded with consumer complaints. Most of the problems facing the courts, HCFA, and the providers have been in determining what constitutes a medical screening examination (2).

“APPROPRIATE” MEDICAL SCREENING EXAMINATIONS

The purpose of the medical screening examination is to determine whether a patient has an emergency medical condition. An emergency medical condition exists if an individual has “acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in placing the individual’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.” An emergency medical condition includes women having contractions (1).

The law does not specify whether a physician, nurse, or other health care provider must perform the medical screening examination. The HCFA requires that the medical screening examination be done by a “qualified medical person” and further charges the hospital’s governing board with the decisions surrounding who may perform a medical screening examination.

An appropriate medical screening examination can be performed outside the emergency department. For instance, in labor and delivery, patients are routinely examined and evaluated for an emergency medical condition. If the woman is having contractions, she is deemed to have an emergency medical condition under the law. Labor and delivery should have protocols to comply with EMTALA; however, the protocols must be applied to all individuals. In other words, private patients and unassigned patients must be screened in the same manner to determine if an emergency medical condition exists (3).

EMTALA ISSUES IN THE COURTROOM

Courts are litigating many of the EMTALA issues. Even though EMTALA is a federal law, many of these cases are being litigated in state courts. Courts are making decisions based on state law because the remedies are available under state law. The Sixth Circuit Court has ruled that for a claimant to prevail under an EMTALA claim, the hospital must have an “improper motive” for transferring or discharging the patient (race, sex, religion, financial status) (4). The Fifth Circuit Court responsible for Texas appeals has stated that a claimant does not have to show an “improper motive” to recover under an EMTALA claim. The EMTALA protects everyone, not just the poor or uninsured. Hospitals are liable for improper screening or failure to stabilize patients having emergency medical conditions.

In a case decided last year in Texas, a lawsuit was brought against a hospital in Amarillo for failing to provide an “adequate” screening examination. The patient, a young child, was discharged from the emergency department after being seen and treated for high fever. The child returned to the emergency department in cardiac arrest. The cause of death was meningococcemia. The plaintiffs alleged that the child had an “emergency medical condition” at the time of the first visit to the emergency department, and the physicians failed to perform an adequate screening examination to detect it. The appellate court ruled that the hospital physicians would have to have actual knowledge that an emergency condition exists in order to prevail under EMTALA. The court further added that EMTALA cannot replace state action for malpractice, and the intent of the legislature was not to establish a federal remedy for a misdiagnosis (5).

The US Supreme Court has recently ruled on the first EMTALA case accepted by the Court. A patient was allegedly “dumped” after being in the hospital for 2 months. The patient was transferred to a nursing home with urinary tract infection and possible sepsis, and the lawsuit alleges she was transferred because she was poor, she was uninsured, and her bill had reached $393,000. Within hours, she was rushed to another hospital where she spent 6 more months. The patient sustained brain damage and filed a lawsuit seeking $10 million in damages. The parties have briefed issues relating to the continuing obligation to stabilize after admission to the hospital. The Court reversed the Sixth Court of Appeals’ decision, stating that plaintiffs do not have to show an “improper motive” by the hospital for transferring or discharging a patient (6).

MEDICAL STAFF RESPONSIBILITIES

Medical staff members must be cognizant of the hospital’s requirements under EMTALA. The statute clearly puts the responsibility on the hospital’s “on-call” physicians. When an emergency physician notifies the on-call physician in a particular specialty, that physician may not inquire into the patient’s financial status. The on-call physician may not dictate that the patient be transferred if the patient has not been stabilized. A woman having contractions is deemed “unstable” under the law (1). If an on-call consultant does not respond in a timely manner when summoned to the emergency department, the hospital and the on-call physician are both at risk for a violation. The fine for such a violation may be up to $50,000 per provider. However, the greater risk to the hospital is the potential loss of Medicare participation. Two emergency departments in New Jersey shut down after a HCFA investigation revealed lengthy on-call response times. The emergency departments reopened, and the consultants must now respond within 30 minutes.

Private patients who come to the emergency department must be assessed according to the same screening criteria as other patients. If a private patient is going to be seen by his or her physician, the hospital must apply the same principles (7). If an emergency department patient normally would wait 30 minutes prior to receiving a medical screening examination, the private patient should wait no longer than 30 minutes. Private patients who do not have an emergency medical condition can then wait for the private physician. Many facilities have remedied this problem by allowing the emergency department physician to medically screen all patients to determine whether they have an emergency medical condition. The emergency department physician can begin stabilizing the patient until the private physician arrives to assume the patient’s care.

HCFA KEEPS A CLOSE EYE ON HOSPITALS

Although the legislative intent was clearly aimed at treating all individuals equally regardless of ability to pay, HCFA has taken steps to broaden the statute. Although the courts have been “friendly” to hospitals and physicians in their rulings on EMTALA, HCFA is continuing to strictly enforce the statute and has caused alarm within hospitals about EMTALA compliance. Hospitals and physicians are consistently finding themselves in front of a HCFA investigator to explain medical judgments and justify patient outcomes. During the year ending in the 1998 fiscal year, the Office of Inspector General settled 54 dumping cases that resulted in the imposition of $1.8 million in penalties (8). A case in Nebraska demonstrates the direction of HCFA’s interpretation of the statute. In that case, a potentially suicidal patient was sent back to jail after allegedly ingesting an unknown amount of pills. The physician ordered a drug screen; however, the patient refused. The physician allowed the patient to leave and instructed the police to obtain a urine specimen for drug testing. The patient was later found unresponsive and comatose due to severe amitriptyline intoxication. The HCFA found the hospital violated EMTALA by failing to perform an “adequate screening examination.” The peer review office stated “the failure to evaluate, observe and monitor the patient for potential drug toxicity constituted evidence that the physician’s medical screening exam was insufficient to determine if a medical emergency condition exists.” The hospital settled with the Office of Inspector General and paid $47,000 in penalties (9).

Recently published interpretive guidelines instruct HCFA not to consider a “bad outcome” when reviewing and investigating these potential violations. Unfortunately, HCFA is doing just that. Now, potentially every bad outcome could give rise to an EMTALA violation. The HCFA offices across the nation also vary in their own interpretations of this statute. It would be helpful if hospitals and physicians could rely on a single HCFA interpretation, but, unfortunately, that likely will not occur anytime soon.

CONCLUSION

Regulatory changes, the mandatory reporting of violations, and the increasing number of managed care complaints have produced a dramatic increase in EMTALA violations across the USA. Physicians must remain alert to the changes affecting their practices and should familiarize themselves with the rules and regulations of EMTALA. Physicians should continue strong lobbying efforts to ensure that necessary changes in the interpretation of the EMTALA guidelines evolve around the legislative intent and that all persons with emergency medical conditions are treated indiscriminately. The stakes are too high to ignore violations occurring across the country. Keeping current with the evolving EMTALA will present a challenge to all physicians.