Dr. Barry Gustin - Medical Toxicology Expert Services

EMTALA Violations, ER Overcrowding, and Litigation

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The following excerpt on EMTALA (Emergency Medical Treatment and Active Labor Act) is taken from a paper written by Dr. Damon Dietrich and Dr. Michael Crapanzano. The paper is entitled, "Emergency Department Diversion and Overcrowding: A Public Health Crisis." The paper discusses EMTALA in the context of ED diversion (EDD) and ED overcrowding (EDO).

In the U.S. today with increasing ER patient burden EMTALA violations have increased. This has resulted in increased litigation as well.

EDO and EDD are two of the most critical public health issues facing our nation's healthcare system today.[3,4,5]

  • ED visits in 2003 rose to 114 million, up from 97 million in 1997.
  • While visits increased by 17% over six years, 1128 EDs closed between 1988 and 1998, thus resulting in a dramatic increase in patient volumes and waiting times.
  • US hospitals over the past ten years have closed more than 103,000 inpatient medical/surgical beds and 7800 ICU beds in an effort to control costs.
  • The majority of the nation's 4000 hospitals and EDs report operating at or above critical capacity.
  • In 2001, two out of every three hospitals reported diverting ambulances to other hospitals.
  • EDO is reported to be most severe in areas with larger populations, higher population growth and higher than average uninsured patient volumes.

EDs represent the most critical access path to the nation's health delivery system, as the "guaranteed access point for all who need care regardless of ability to pay."[2] EDO exists when the ED has more patients than bed capacity or is over-saturated; this is a warning sign of capacity constraints under normal conditions. The March 2003 General Accounting Office Report indicated that EDO has many negative implications with regard to quality of care including prolonged patient wait times and suffering for acute problems while other patients are "boarded" in the ED, higher physician and staff stress, less confidentiality when patients are evaluated in nontraditional locations such as a hallway or on the EMS stretcher and increased transport times for ambulance patients due to diversion.[5] Contrary to public misconception, the gridlock in the ED is not in the waiting room, but rather occurs in the hallways of the ED with admitted patients waiting for beds upstairs for hours to days! The purpose of EDD was an innovative solution for EDO intended to "divert" stable patients transported by ambulance away from the hospital, thereby allowing the scarce beds remaining in the ED to be used for critical or unstable patients. EDD has been defined by The Lewin Group.[2]

 

  • Hospitals divert when their ED can no longer accept all or specific types of patients by ambulance.
  • EDD is a short-term, temporary approach used to assure that patients get the right care at the right time.
  • If one ED is overcrowded and another is available, diversion assures a patient is treated in a timely manner.

A review of the literature identifies six broad categories as the primary contributors to EDO and EDD as summarized in Table 1 .[2,17,18] Roberts' five control knobs - finance, payment, organization, behavior and regulation. The knobs are pertinent because they are fairly comprehensive, can "be adjusted by government action....and describe discrete areas of health system structure and function that matter significantly for health system performance."[6] Financing for EDs nationwide has been adversely affected by an increase in the proportion of self pay patients, increase in malpractice premiums, managed care barriers and inadequate funding at the organization level in response to the increase in ED volume and acuity. As health premiums increase and employer based healthcare coverage falls, the American uninsured population continues to rise. In 2004, 46 million Americans, or 16% of the total US population, were uninsured.[7] The ED has become the safety net for the uninsured population. Due to lack of insurance and poor access to outpatient care, these patients often wait until their medical condition worsens before seeking medical intervention. A detailed discussion of EMTALA is included in the regulation discussion and represents the focus of this article.

The regulation knob will be explored through an analysis of EMTALA. Acceptance of Medicaid and/or Medicare federal funding requires that organization to abide by EMTALA federal law 42 CFR 489.24 that states the following.[8]

"Any hospital that has an ED must provide an appropriate medical screening examination (MSE) within the capability of the hospitals ED, including ancillary services routinely available to the ED, to determine whether or not an emergency medical condition (EMC) exists." If an EMC is determined to exist, the ED must provide any necessary stabilizing treatment or an appropriate transfer to a facility that can provide the necessary resources required. Finally, a hospital "may not delay access to screening, stabilizing treatment or an appropriate transfer in order to inquire about the patient's method of payment or insurance status."

This law was refined on November 10, 2003, to allow for EDD in response to concerns over lack of understanding of EMTALA requirements. Consensus developed that the initial statutory regulations expanded EMTALA beyond the scope of its' original intent, thereby actually contributing to and exacerbating EDO.[8] Violation can result in a federal investigation of the entire hospital, a $50,000 fine to the hospital and a $10,000 fine to the physician that is determined to be noncompliant.[9] While EMTALA was intended to provide all patients the right of medical care in the ED regardless of ability to pay, a cost: benefit analysis performed by Duke University and summarized inTable 2 suggests it did just the opposite.[10]

The obvious benefit of EMTALA is to protect the patient's fundamental right to emergency medical stabilization and treatment. Before EDD, hospital-owned ambulances were forced to transport all patients to their respective hospital, regardless of capacity saturation. This was detrimental to the patients, nurses, doctors and other employees. Resources were overwhelmed, and the patient invariably received inadequate care. The 2003 regulations allowed "hospital-owned ambulances ... to transport patients to other hospitals, typically the closest, appropriate hospital" not on diversion.[8] This change created critical flexibility required in EMS systems, and thereby allowing more efficient use of resources for community benefit. As an extension of this regulation, many communities developed emergency services disaster/diversion plans that maximized the use of hospital beds, while discouraging closure of additional hospitals. For example, after Hurricane Katrina, www.gno.ems was created within one week after the hurricane as a diversion planning mechanism to facilitate flexibility for New Orleans EMS systems. Each hospital updated its respective bed status hourly. When patients were transported by ambulance, this information technology tool allowed the physician to divert the patient to a hospital with adequate resources. As a just-in-time mechanism, this plan improved care and resources in a debilitated, constrained environment. 

Unfortunately, one of the major consequences of EMTALA has been its role in becoming a deleterious ingredient of EDO and EDD. The mandate set by the federal government came with no mechanisms for implementation and no mechanisms for funding. The largest impact was indirect, through the effects of legal controversy on market actors' concerns and expectations.[11] In effect, the alarming irony of EMTALA is staggering. The law's intent and purpose was to ensure access for an EMC; however, in reality, EMTALA actually impedes access for an EMC by overwhelming resource capacity. Thus, its effects may be better understood by considering it from the framework of law. Law is a statement of the rules of behavior with inherent moral weight. As a beneficial mechanism to societal order, law is accessible, consistent, enforced, legitimate and universal. Furthermore, "the law is not just a set of rules, but a social institution that evolves. Statutes are born of political compromise and therefore represent best efforts of a society to reconcile different interests. Hence, law maintains stability within society as it entertains innovation and reform."[12] However, EMTALA is a perfect example of forced ethics by statutory regulation. In contrast to ethical codes, law represents only a minimum standard for EMTALA - continued from page 26 behavior. The treatment of critical patients regardless of ability of pay addresses ethics and morality. Moral codes and ethical standards provide ideals that guide behavior beyond the minimums of law.[12] In other words, healthcare providers have an ethical duty to treat the patient. We have all heard the horror stories. A critical trauma patient shows up on the EMS ramp. The emergency physician opens the door and asks the patient if he has insurance. When the patient replies no, the doctor closes the door and states, "take him to Charity boys." This egregious, irresponsible and unprofessional behavior did transpire and led to the creation of EMTALA. For these doctors are the true forefathers of the EMTALA scourge- the MOTHER OF ALL UNFUNDED GOVERNMENT MANDATES. With acceptance of moral and ethical obligation, the creation and evolutionary misinterpretations of the EMTALA law would never have transpired. EMTALA was concerned with upholding basic rights and duties; however, the law deprives us of moral imagination when it invades the realm of ethics. Furthermore, the law "does not seek to inspire human excellence or distinction."[12] The practice of emergency medicine should not be defined by EMTALA regulatory definitions, but rather by professional standards of excellence set by hospitals and providers. The duty to treat patients should be "found not in the hard terrain of contracts or duties of justice or obligations of fair play that might hold among strangers, where philosophers have hoped to find it, but rather in the more fertile ground of fraternity, community and their attendant obligations."[12]Proper education regarding EMTALA requirements and dispelling myths is vital to any strategy for reducing EDD and EDO. The key message to impart is that stable patients should be diverted from a hospital with critical resource capacity regardless of patient request. Once a hospital is on diversion, only unstable or critical patients should be transported to that facility, assuming the facility has the resources to care for the patient.

The author's personal experiences illustrate that many healthcare providers – doctors, nurses and paramedics – have responded to these complex issues through practice standards that ensure their own legal protection in lieu of a "true" understanding of EMTALA. One example is the common myth that if a stable patient requests a facility on diversion, EMTALA mandates that the patient must be transported to that facility regardless of diversion status. This compromises care by exhausting resources. Fear of EMTALA breach, fines and inevitable investigation create unrealistic anxiety, further perpetuating the myth. In reality, paramedics do not inform the patient of critical resource exhaustion, but rather tell the patient vaguely that he may have to wait "a little while" before being treated. A critical or sick patient cannot possibly be expected to understand the complexities of operations management or surge capacity. This is unfair to the patient, as well as the providers and hospital on diversion. EMTALA did not include a provision for patient request; rather, this provision was developed and incorporated by hospital personnel and has zero legal basis. These actions and practices are largely "understood," and thus, it is hard to quantify the "real" impact on EDO and EDD. These ill conceived misinterpretations of EMTALA could not have been anticipated at inception. However, inappropriate extensions of the law have created the undesirable evolution where an ED is required to accept all stable patients, contributing to EDO. This causes critically ill patients to be legally prevented from receiving care at the most appropriate facility. Definitive solutions to EMTALA problems are complex, expensive and resource intensive. Some direction is illustrated by the following recommendations by the American Academy of Pediatrics.[18]

  • Improved efficiencies of Hospitals and EDs
  • Optimization of primary care access
  • Improvement of hospital and ED service capacity, particularly in critical care areas
  • Link all patients to a medical home
  • Integrated healthcare information technology system
  • Reform of professional liability and tort
  • Improved Medicaid reimbursement
  • Education of consumers on appropriate usage of the ED
  • Education of policy makers on the effects of EMTALA and possible solutions
  • Additional research in the area of EDO
Essentially, a definitive solution is nowhere in sight, as it will require a massive educational campaign on what EMTALA is and what EMTALA is not. It will also require changes in public health policy, law and culture. I sincerely believe that emergency physicians (my brothers and sisters in the ED PIT or Hell's Kitchen as I like to call it) provide beneficent service to humanity not due to a professional oath or legal requirement, but rather our fundamental, innate, moral and ethical code of conduct. We simply need the resources required to care for our patients without government interference and roadblocks. Fair compensation for provider services and ending the practice of "boarding" are essential to moving forward. Funding various solutions requires a national commitment and recognition of emergency medicine as an essential community service. As overwhelming as this task may be, we believe local facilities can provide interim support by using a "systems" view and commitment to the problem including community leaders, EMS systems, hospitals, local policymakers, patients, providers and health plan payers. ED resources must be adequate to safeguard the public's health. We must act now.


References

1. Richards JR. Survey of Directors of Emergency Departments in California on Overcrowding. West J Med. 2000; 172:385-388.
2. Lewin Group. "The Results of the AHA Survey of Emergency Department (ED) and Hospital Capacity." 2002. April 19, 2006. http://www.hospitalconnect.com/aha/press_room-info/content/EdoCrisisSlides.pdf
3. American College Emergency Physicians. "New Data Shows Upward Trend in Emergency Department Visits." June 4, 2003. April 17, 2006. www.acep.org
4. American College Emergency Physicians. "Ambulance Diversion and ED Overcrowding." June 2003. April 17, 2006. www.acep.org
5. "Hospital Emergency Departments: Crowded Conditions Vary among Hospitals and Communities." United States General Accounting Office Report, March, 2003.
6. Roberts MJ, Hsiao W, Berman P, Reich MR. Getting Health Reform Right. New York: Oxford University Press, 2004.
7. Hadley, Jack, and Holahan, John. "How Much Medical Care Do the Uninsured Use, and Who Pays For It?" Health Affairs, February, 2003.
8. Bitterman, Robert A. "EMTALA Update 2003: The Government's New Regulations." Sterling Healthcare Clinical Bulletin, First Quarter 2004.
9. Miller GL. Emtala.com: A resource for current information about the Federal Emergency Medical Treatment and Active Labor Act, also known as COBRA or the Patient Anti-Dumping Law. April 19, 2006. http://emtala.com/
10. Conover CJ, Zeitler EP. "Cost and Benefits of Emtala ." Center for Health Policy and Law Management. May, 2004. April 19, 2006. http://www.hpolicy.duke.edu/cyberexchange/Regulate/CHSR/HTMLs/F1-EMTALA.htm
11. Bloche, M. Gregg, and Studdert, David M. "A Quiet Revolution: Law as an Agent of Health System Change." Health Affairs, Volume 23, Number 2, April/May 2004.
12. Elias, Jaan, and Dees, Gregory J. "The Normative Foundations of Business." Harvard Business Review, June 10, 1997.
13. Internal hospital records
14. Callimachi, Rukmini. "New Orleans Uninsured Get Primitive Care." The Associated Press News Article, February, 2006.
15. Guglielmo WJ. "New Orleans' Doctors: Still MIA – Outlook – Medical Economics. March 17, 2006.
16. Wilson, Marcia J., and Nguyen, Khoa, "Bursting at the Seams: Improving Patient Flow to Help America's Emergency Departments." Urgent Matters Learning Network, George Washington University Department of Health Policy, September, 2004.
17. American College Emergency Physicians. "Emergency Department Crowding: Information Paper." April 19, 2006. April 19, 2006. http://www.acep.org/NR/rdonlyres/1FDC6583-A6F6-4022-95DF-92FCFFEE77F3/0/empcCrowdingPPR.pdf
18. Knapp JF, et al. Overcrowding Crisis in Our Nation's Emergency Departments: Is Our Safety Net Unraveling? Pediatrics vol 114, no 3. September 2004, pp. 878-888.
19. Litvak, Eugene, Ph.D. "Managing Variability in Patient Flow: Improving Quality of Care While Reducing its Cost." Presentation of the Boston University Health Policy Institute and School of Management. (see http://www.bu.edu/mvp/)
20. Resar, Roger, M.D. "Capping Admissions: Luther Midelfort Mayo Health System Study." Mayo Health System, 2001.
21. Aiken, Linda, et al. "Hospital Nurse Staffing and Patient Mortality, Nurse Burnout, and Job Dissatisfaction." Journal of the American Medical Association, 2002; 288: 1987-1993.
22. Dempsey, Christy, & Larson, Kenneth. "Improving Flow through Perioperative Services. A Practical Application of Theory." White Paper. St. John's Regional Health Center, Springfield, MO, 2002.
23. American College Emergency Physicians. "How Overcrowding Affects Your Access to Emergency Care." March, 2004. April 17, 2006. www. acep.org
24. McManus, Michael L., M.D., M.P.H. et al. "Impact of Variability in Surgical Caseload on Access to Intensive Care Services." Anesthesiology 2003; 98: 1491-1496.
25. Kingdon, J.W. "Chapter 8: The Policy Window, and Joining the Streams." Agendas, Alternatives, and Public Policies. Harper Collins College Publishers, 1995.
 
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