Practice of Medicine

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What On-Call Physicians Need to Know about EMTALA

Executive Summary 

EMTALA ensures that patients receive stabilizing treatment when presenting to an emergency department or are appropriately transferred to a capable facility. The act includes strict rules that apply to a hospital’s on-call physicians—those who provide the stabilizing treatment. It’s important that physicians understand those requirements and the potential risks and penalties non-compliance can impose.  

Recommended Actions 
  • Ensure that patients are appropriately transferred when necessary and are in a stable condition before any transfer. 
  • Review the hospital’s bylaws and medical staff rules to ensure that you’re following policies for providing emergency services. 
  • Make certain that advice about a patient and treatment plan and interpretation of diagnostic studies is properly documented. Include the timeframe for responding to an on-call page.

The Emergency Medical Treatment & Labor Act (EMTALA) ensures public access to emergency services regardless of a patient’s ability to pay. EMTALA imposes specific obligations on Medicare-participating hospitals that offer emergency services to provide a medical screening examination (MSE) when a request is made for examination or treatment for an emergency medical condition (EMC), including active labor, again without regard to an individual's ability to pay. Hospitals are required to provide stabilizing treatment for patients with EMCs. If a hospital isn’t capable of stabilizing a patient, or if the patient requests, the hospital may transfer the patient to another appropriate facility. 

EMTALA has provisions that apply directly to physicians, such as those who are on call for a hospital. Those include physicians who refer patients to the hospital and should be familiar with and understand their responsibilities when contacted regarding an emergency department (ED) patient, referral or for outpatient care follow up. 

Hospitals are required to maintain a list of on-call physicians who can provide the treatment needed to stabilize an emergency medical condition. If permitted by the hospital’s medical staff policy, an on-call physician may send a licensed non-physician practitioner to assess and help stabilize the patient. Keep in mind, the on-call physician ultimately is responsible for providing the needed care for the patient, regardless of who responds. Under EMTALA regulations, if the ED physician requests a specialist consult in-person, the on-call physician or his designee (as permitted) must appear in person to assist in stabilizing a patient. 

If you are a physician who has contracted to provide emergency treatment, it’s important to familiarize yourself with hospital by-laws and medical staff rules and regulations. There may be a contractual obligation if the physician is paid to be on call and is consulted regarding an emergency patient’s care. A physician waives the right to refuse to see a patient when they have agreed to be on call as a condition of being on the medical staff. 

If an on-call physician fails to come in when requested or directs that the patient be transferred instead, both the hospital and physician may be in violation of EMTALA regulations and subject to a fine over $100,000 per violation for hospitals over 100 beds and over $50,000 per violation for hospitals under 100 beds and on-call physicians.         

The Physician-Patient Relationship 

In some cases, a physician-patient relationship is established even when the on-call physician does not personally examine or treat the patient. The on-call physician may be treating a patient jointly with the ED physician when:            

  • The ED physician relies on the on-call physician’s expertise instead of exercising their own judgment in treating the patient 
  • The on-call physician interprets patient data such as diagnostics, labs, EKGs or radiology images 
  • The on-call physician prescribes treatment for a particular patient or contributes to the diagnosis 
  • A physician-patient relationship will most likely not be established: 
  • If the on-call physician simply provides general patient care advice for the ED physician  
  • If the treating physician uses independent judgment when determining whether to accept or reject a consulting physician’s advice 
  • If the on-call physician is consulted for a possible referral of a patient 

Documenting Informal Conversations 

If you are contacted by the emergency department to offer advice that is intended to educate a provider seeking general information, documentation may not be necessary. But if the advice you are providing is related to a specific patient, treatment plan or includes interpreting diagnostic studies, the conversation should be documented. Also, if the conversation becomes very involved, it is strongly recommended that the consulting physician suggest a formal consult. 

Post-ED Care 

Upon discharge from the ED, a patient may be stable from an EMTALA standpoint, but still require care for the underlying medical condition either as an outpatient or later as an inpatient. A hospital does not have any obligation to arrange for ongoing medical care, but it is expected to provide discharged patients with the information they need to obtain follow-up care to prevent a relapse or worsening of their medical condition.  

  • If an ED patient is provided the name of an on-call physician for an outpatient referral, generally there is no obligation for the on-call physician to see the patient unless: 
  • The physician agrees to see the patient or 
  • The on-call physician is required based on hospital by-laws 

It is not uncommon for hospital bylaws to require one follow-up visit rather than ongoing care.  The patient should be informed of this at the time of the referral. It is then up to the on-call physician in collaboration with the patient to determine whether the relationship will extend beyond the first outpatient visit.  

For additional information about EMTALA compliance, please go to: 

EMTALA:  Understanding Your Obligations and Avoiding Costly Violations 

https://www.cms.gov/Regulations-and-Guidance/Legislation/EMTALA/ 

Lessons Learned  

On-call physicians should come in when requested by the hospital and avoid transferring a patient without first obtaining an examination to avoid a costly EMTALA violation. 

Hospitals should ensure that appropriate protocols and policies are in place regarding their obligations under EMTALA and should ensure that policies are displayed where patients will see them. 

Hospitals should make certain that all ED staff members are appropriately trained and understand their obligations under EMTALA. 

Potential Damages under EMTALA 

Although the frequency of violations is low, severe EMTALA violations can lead to termination of the hospital or provider’s Medicare Provider Agreement. Fines can be as high as $100,000 per violation and hospitals may be held liable for civil lawsuits either from patients or from transferring or receiving hospitals.   

Quiz 

Answers are provided below 

True or false? 

Question 1: A physician-patient relationship may be established if a patient seeks care and the on-call physician provides treatment or other services. 

Question 2: Although there is no obligation to arrange for ongoing medical care, it is best practice to provide discharged patients with information to help them obtain follow-up care to prevent a relapse or worsening of their condition. 

Question 3: If the on-call physician sends a licensed non-physician practitioner to assess and help stabilize a patient, the on-call physician is not responsible for that patient. 

 Answers: 

Question 1: True. A physician-patient relationship can be established even when the on-call physician does not personally examine or treat the patient. However, it’s likely established if a patient or someone on the patient’s behalf seeks care and the on-call physician provides treatment or other services to the patient. 

Question 2: True. You do not have an obligation to arrange for ongoing medical care, but informing discharged patients about how to obtain follow-up care is a common expectation.  

Question 3: False. The on-call physician ultimately is responsible for providing the needed care for the patient regardless of who responds. 

 

07/22

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Disclaimer

The information provided in this resource does not constitute legal, medical or any other professional advice, nor does it establish a standard of care. This resource has been created as an aid to you in your practice. The ultimate decision on how to use the information provided rests solely with you, the PolicyOwner.