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The ever-expanding EMTALA

Fifteen years after the "anti-dumping" law passed, EDs are struggling to meet an unfunded mandate burgeoning with new regulations and lawsuits.

By Tanya Albert, amednews staff. April 23/30, 2001.

Emergency physician Todd B. Taylor, MD, at age 43, is at the prime of his career and should be spending his time treating patients.

Instead, the Phoenix doctor spends hours of his days writing papers, talking to groups of physicians and meeting with politicians. The topic: How the Emergency Medical Treatment and Active Labor Act has become the "law of unintended consequences," harming emergency medicine.

Courts weigh in
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"I'm semi-retired because it's a horrible place to work," said Dr. Taylor of emergency departments. He cut back to 20 hours a week in the EDs at Good Samaritan and Phoenix Children's hospitals last fall. "It's impossible to do a good job because you don't have the resources."

Congress passed the act in 1986 to stop hospitals from turning away patients who couldn't afford care. Over the years, Health Care Financing Administration regulations and court cases expanded it. Now some doctors say it's so burdensome that it's a large contributor to the crisis in America's EDs.

Patients know they can't be turned away from EDs, so they use them as primary care facilities. Emergency department waiting rooms sometimes get so crowded that patients wait for hours to see a doctor. Yet hospitals and physicians often don't get paid for their time or the supplies they need to treat patients. It's led some to call the law America's "national health care system."

And while the number of patients in emergency departments increases, the number of specialists willing to be on call in the ED declines. That leaves some departments without specialists to back up emergency physicians.

Part of the problem is that doctors now have HMO patients to build their practices with and don't rely on the ED as a way to find patients. Also, doctors say, the threat of facing a $50,000 EMTALA fine or a malpractice suit that incorporates an EMTALA violation isn't worth the risk of being on call.

Still, no one says EMTALA can be blamed for all the woes. A nursing shortage, some HMOs' practice of using the ED as a way to get free care to increase profits, and other health care system breakdowns contribute to the problems that emergency departments face, physicians say.

But, doctors add, EMTALA is a big contributor to their daily headaches and changes need to be made soon.

Fifteen years of regulatory developments and lawsuits haven't made EMTALA quite as thick as the Tax Code, but some doctors feel like it's headed in that direction.

HCFA has helped expand the law by filling in parts that seemed vague. For example, the agency has said patients who are in a hospital's parking lot, on its sidewalk or in its driveway are considered to have come to the ED. Also, psychiatric disturbances and substance abuse symptoms now may qualify as an "emergency medical condition."

And while some lawsuits restrained EMTALA, a larger number have expanded it.

Lawsuits have been brought via two routes. First, physician and hospital challenges of Office of Inspector General enforcement actions created case law. Second, patients, or their estates, have raised EMTALA questions in malpractice suits.

"Most of the court cases have not been favorable to physicians and hospitals," said Constance H. Baker, a Baltimore health care lawyer.

For example, a January decision by the 11th U.S. Circuit Court of Appeals in Georgia said a hospital takes on the responsibility to provide stabilizing treatment as soon as its staff realizes the patient has an emergency medical condition.

A 1999 U.S. Supreme Court ruling said that proof of an improper motive for transferring a patient is not needed to trigger EMTALA. Instead, the court looked to the law's plain language and said that transferring any unstable patient violates EMTALA.

And earlier this year, a panel of 9th U.S. Circuit Court of Appeals judges in California said the family of a heart attack victim can go ahead with a suit that claims EMTALA was violated when a physician told ambulance personnel via radio that it would be all right to go to the hospital where the victim's primary care doctor was, even though it was farther away.

Health care lawyers say that patients are increasingly incorporating EMTALA violations into medical malpractice cases. There are no signs of that changing anytime soon.

"It's a fertile field for new litigation," said Richard Stennes, MD, an emergency physician from La Jolla, Calif., and a past president of the American College of Emergency Medicine.

"Plaintiffs' attorney are seeing that you can make a weak malpractice case a slam-dunk by including EMTALA," added Dr. Taylor, public affairs vice president of the Arizona College of Emergency Physicians.

But Rockford, Ill., health care lawyer Stephen A. Frew said that the threat of lawsuits and fines is more urban legend than reality.

"The fact is that hospitals get cited with very blatant violations," said Frew, who also runs a consulting group. "For example, asking a patient for a deposit or turning them away at the door."

Although doctors worry that the law and regulations have expanded EMTALA beyond its original intent, Frew says that wasn't unexpected.

"We were predicting in 1986 that the clear word of the law leads to these implications," he said. "It was a mandate that guaranteed access to health care. That's just what they're waking up to 16, 17 years later."

Whether physicians should have seen the potential for this or not, they say if the system doesn't change, EDs may become increasingly scarce in the next decade.

The difficulties hospitals face in finding specialists willing to work on call in the ED often forces them to go on diversionary status.

Dr. Stennes contracted with emergency departments for 29 years, but stopped about a year ago because the risk/reward ratios were just too high.

"I had about a 28.5% reimbursement rate when I stopped," he said. "There's a limit on how far doctors can go to helping patients for free. They have rent and expenses to pay."

As a result of the problems, younger physicians are sub-specializing and finding ways to avoid taking call in the ED, experts say.

In addition to not being able to cover their costs for the services they provide, physicians don't want to be on call because it opens them up to EMTALA violations.

"You want me to be available 24 hours a day, 365 days a year, taking time away from my family ... and now you have lawyers circling over my head waiting for something to happen," Dr. Taylor said. "I'm surprised we have any on-call physicians left."

Emergency physicians realize that EMTALA doesn't shoulder all of the blame for problems they're encountering. But some changes to the law could go a long way to help improve the stumbling system, they say.

For example, it's time that the government started kicking in funding, physicians say. "EMTALA was well-intended, but it had unintended consequences," Dr. Stennes said. "There is no money attached to it. It's become an unfunded mandate."

"There's been 15 years of free care," Dr. Taylor added.

And, Dr. Stennes said, there is little incentive for people not to use EDs improperly. Emergency departments have 24-hour-a-day availability, and patients don't have to pay at the time of the service. If they can't pay, there's no way for the hospital or doctor to recover the money. "How do you get people to go somewhere else?" Dr. Stennes asked.

Frew said HMOs also need to pay their share. Passage of patients' bill of rights legislation forcing insurers to pay for the care their patients receive in EDs would be a big improvement, he said.

"EMTALA is being used by HMOs as a way to boost profits. The hospitals need to get paid."

Another suggestion from doctors and health attorneys is to introduce uniformity and consistency to HCFA's interpretations of the law. Also, patients should be barred from folding EMTALA charges into private malpractice lawsuits. Doctors are already subject to a $50,000 fine for violating the law.

The government and medicine recognize the need for change. In January, the AMA and 30 national medical specialty societies asked HCFA to stop expanding EMTALA because it is "seriously stressing the ability of the medical profession" to provide quality care. And at Congress' request, the General Accounting Office is assessing EMTALA's impact.

Doctors say the sooner changes are implemented, the better. "We're at a watershed here," Dr. Taylor said. "Now is the time to fix it."

ADDITIONAL INFORMATION:

Courts weigh in

More often than not, court decisions have not been favorable to hospitals and physicians, and have expanded EMTALA. Some recent opinions:

Harry v. Marchant, January

Decision: The 11th U.S. Circuit Court of Appeals in Georgia said as soon as a hospital determines a patient has an emergency medical condition, it takes on the responsibility to provide stabilizing treatment.
Facts: A patient diagnosed with pneumonia and possible pulmonary embolism spent several hours waiting in the emergency department for her primary care physician to admit her to the hospital. She died in intensive care the next day.

Arrington v. Wong, January

Decision: A panel of 9th U.S. Circuit Court of Appeals judges in California said a victim's family can proceed with a lawsuit charging that EMTALA is triggered when an ambulance has radio contact with the ED, even if the hospital doesn't operate the ambulance.
Facts: An emergency medical technician radioed the closest hospital with a heart attack victim's vital signs. The man's primary care physician was at a hospital farther away. The ED doctor said he believed it would be OK for the ambulance to go to the farther hospital. The man died after arriving at the more distant hospital.

Millard v. Corrado, July 2000

Decision: The Missouri Court of Appeals said a physician who is on call but doesn't respond right away can be held liable for injuries a patient sustained because of a delay in treatment. It was based on state law, but has EMTALA implications.
Facts: The doctor scheduled himself as on call on a day that he would be at a conference. A woman was in a car crash and needed a surgeon. The on-call surgeon was paged, but didn't respond. The woman received surgery at another hospital about four hours after the crash.

Roberts v. Galen of Virginia Inc., January 1999.

Decision: In the U.S. Supreme Court's first ruling on EMTALA, the court said any patient who is unstable when transferred is considered an EMTALA violation. There doesn't need to be proof of improper motive for the transfer.
Facts: A woman was run over by a truck. After a six-week stay at the hospital, she was transferred to an extended care facility. Her condition worsened and she was transferred to another medical center. The treating physicians said they were unaware of her insurance status and that financial considerations were not part of the transfer decision.