Risks and Responsibilities for

Emergency Providers
Katherine E. deS, BSN, RNC-OB
SUNY IT

[Untitled photograph of hands holding money]. Retrieved March 16, 2013

from http://thebirthbug.wordpress.com/category/homebirth/

Cleland v. Bronson Health Care Group,

Inc., 1990
It is undisputed that the impetus to
this legislation came from highly
publicized incidents where hospital
emergency rooms allegedly, based
on a patients financial inadequacy,
failed to provide a medical
screening that would have been
provided a paying patient (Garan,
Lucow, Miller P.C., n.d.,History of
EMTALA, para. 1)

Gatewood v. Washington
Healthcare Corp. (1991)
Addressed the issue of
patient dumping, where
poor or uninsured patients
were either refused treatment
outright, or transferred to
another facility (Garan,
Lucow, Miller P.C., n.d.)

Arrington v. Wong (1998)

Clarified that EMTALA

applies to all patients, not
just those who do not have
the means to pay (Garan,
Lucow, Miller P.C., n.d.)

Hardy v. New York City

Health and Hospitals Corp.
(1999)
It is clarified that EMTALA is
not a substitute for state law
on medical malpractice but
rather a way to impose on
hospitals a legal duty to care
for anyone who sought help
(Garan, Lucow, Miller P.C.,
n.d.).

Reynolds v. Mainegeneral
Health (2000)
EMTALA is not a
guarantee of proper
diagnosis or adequate care,
but a message to the public
that they can expect an
adequate first response at
any hospital in an
emergency (Garan, Lucow,
Miller P.C., n.d.).

Recent Rulings Find That EMTALA Does not End Upon Admission

Hospitals should be doubly sure that they are documenting the reasons
for admission through the ED so that, at a minimum, you can prove that
it was a good faith admission (Kottkamp, 2012, p. 137)
Once the patient is admitted, if the patient needs to be transferred or
there is any other situation in which EMTALA could be raised, the
documentation should be exceptional (Kottkamp, 2012, p. 137)
This is a scary proposition for risk managers that a patient can be
admitted and if hes unhappy with his discharge in some way, there can
be an EMTALA violation (Kottkamp, 2012, p. 137)
The ANA supports provisions stating that an admitted inpatient with an
unstable condition should retain the hospitals EMTALA obligation if the
hospital has the capacity to treat (ANA Submits Comments, 2011)

[Untitled image of waiting room]. Retrieved March 1, 2013 from

http://compliancenews.inhealthcare.com/hot-topics/emtala-compliancehow-to-handle-non-emergent-care-in-the-er/

According to Walker (2010):

No physician objects to the
principle behind EMTALA.
Unfortunately, however,
EMTALA combined with
fear of our insane medical
liability system, the dwindling
number of physicians willing
to accept inadequate Medicaid
and Medicare compensation,
and our broken health
insurance system has turned
the nations EDs into
ambulatory clinics for the
poor and uninsured (p. 9).

HB2543/SB2522

Would change the requirement for an EMTALA

lawsuit from simple negligence to gross
negligence (Walker, 2010)

Would make clear and convincing evidence

the standard for the plaintiff, rather than merely
a preponderance of the evidence (Walker,
2010, p. 9)

H.R. 5 Passed US House of Representatives in 2012

[Untitled image of bill]. Retrieved March 16th, 2013 from

http://members.nasbonline.org/GovernmentRelations/S
itePages/Legislative%20Bills.aspx

Liability protections for physicians working in

disaster situations (EMTALA Physician
Protections, 2012, p. 59)

$250,000 cap on non-economic damages in

malpractice lawsuits (EMTALA Physician
Protections, 2012, p. 59)

Limited liability protections to emergency and

on-call physicians who perform the service
mandated by the federal EMTALA law
(EMTALA Physician Protections, 2012, p. 59)

Zigmond (2011) states that the CMS is considering

whether EMTALA obligates hospitals with specialized
capabilities to accept transfers from other hospitals

Bode v. Parkview Health (2009) A nurse who failed to take patient blood pressures as
dictated by hospital policy was found guilty of neglecting ER screening procedure
which was an EMTALA violation (Dehydrated pediatric patient, 2009)
Moses v. Providence Hospital (2009) The hospital was found guilty under EMTALA for
allegedly discharging a multiple trauma patient in an unstable condition after the
patient had been in the hospital for eight weeks (Bitterman, 2012, p. 135). This case
contradicted CMS stated goal that EMTALA should end upon hospital admission
(Bitterman, 2012)
Guzman v. Memorial Hermann Hospital (2009) The hospital was found not guilty of
EMTALA violations because a thorough medical examination had been documented,
even though the diagnosis given was ultimately incorrect and injury was sustained
(Emergency Room, 2009)
Liles v. TH Healthcare (2012) The court ruled that EMTALA did not end once the
patient was admitted as an inpatient, but when the patient was actually stabilized
(Bitterman, 2012)

ER Nurse Managers Weigh Costs vs. Law

Nurse Managers who look to divert non-emergencies to more cost-effective
care centers risk EMTALA violations for the following reasons:

EMTALA requires appropriate medical screening, but the Centers for

Medicare & Medicaid Services (CMS) has never actually defined what the
term appropriate entails (Beware of EMTALA, 2009)
The diagnosis of emergency medical condition is made retroactively, after
the patient has already been transported elsewhere (Beware of
EMTALA, 2009)
CMS guidelines require the full spectrum of a hospitals capabilities, so
using any other personnel other than physicians when physicians are
available could constitute violation (Beware of EMTALA, 2009)

Point-of-Service Collections might

be EMTALA Violations

Registrars should not speak

with patients until the medical
screening examination has been
done (Getting Aggressive,
2012)
A patient should not be
dissuaded from treatment by
staff asking for payment
(Getting Aggressive, 2012)

Only obtain insurance

information if it does not delay
the medical screening exam
(Getting Aggressive, 2012)

[Untitled photograph of patient on stretcher]. Retrieved March 12,

2013 from http://legal.uclahealth.org/body.cfm?id=28

Lack of ER Physicians

Nurse Practitioners Fill the Gap

The requirement to provide free care and

the high risk of liability has caused many
specialists to cut back on taking call,
leaving fewer specialists available for
emergencies (EMTALA Most Impactful
Change, 2009)

Nurse Practitioners and specially trained

RNs have had success in hospitals that
used their skills to provide the required
EMTALA screening exams (ED Nurses
do MSEs, 2009)

Catch 22 EDs are chronically

underfunded due to the perception that
most of the patients they treat do not
require emergency care; however,
EMTALA legally mandates them to
perform assessments and stabilize
anyone who seeks care (EMTALA Most
Impactful Change, 2009)

This screening is for traditionally nonemergent complaints (such as dental

pain and pregnancy testing) and is
separate from the triage examination
(ED Nurses do MSEs, 2009)
Legal risks include accusations of patient
abandonment and EMTALA violation
(Could Performing an MSE, 2009)

Diversion schemes, such as those

initiated by University of Chicago
Medical Center, sought to direct
stable patients elsewhere in order to
maintain beds for the sickest
patients (Hospital Diversion
Scheme, 2009)

This brought accusations of patient

dumping from the public as well as
the hospital physicians and nurses
(Hospital Diversion Scheme, 2009)
The risks for EMTALA violations
with such a scheme are high, since
criteria for medical emergencies
tend to be applied retroactively
(Beware of EMTALA, 2009)

[Untitled photograph of ambulance]. Retrieved March 16th, 2013 from

http://www.howstuffworks.com/emergency-room.htm

By legislating compulsory care, EMTALA guarantees an appropriate health

screening in an ER to anyone who seeks help, regardless of ability to pay
(Bitterman & Fish, 2009)

Does this make ED providers public employees?

Bitterman & Fish (2009) make the case that, by requiring hospitals to provide
this service for the greater good of society, they are requiring ED physicians
and nurse practitioners to be public servants. Therefore, ED providers should
be provided public employee liability protections, like those given to police or
fire fighters.
Some states have enacted such liability limitations and have seen a drastic
increase in the number of physicians per capita; however some of these states,
such as Ohio, have specifically offered immunity to physicians, not midlevel
providers such as nurse practitioners (Bitterman & Fish, 2009)

Patients who feel they were not provided the appropriate medical
screening and stabilization provided to other patients can bring a
lawsuit against to hospital for violating EMTALA (Garan, Lucow,
Miller P.C., 2011)
If a patient requests transfer, it must be put in writing and must
include the reasons the patient is requesting transfer and a statement
of the risks involved (Garan, Lucow, Miller P.C., 2011)
Hospitals that are found guilty of violating the EMTALA statute risk
fines of up to $50,000 and/or revocation of their Medicare agreements
(Garan, Lucow, Miller P.C., 2011)
A strong distinction is made between a triage assessment and a
medical screening (Garan, Lucow, Miller P.C., 2011). Only a medical
screening can ensure EMTALA compliance (Garan, Lucow, Miller
P.C., 2011)

Bitterman (2012) points out that

there is a lack of definition when
the law considers EMTALA
violations.
Being admitted to the ED or
L&D, being admitted to
observation, and being formally
admitted to the hospital are all
different things under EMTALA
law (Bitterman, 2012).

[Untitled photograph of man in ER]. Retrieved March 12, 2013 from

http://envisioninc.wordpress.com/2010/05/20/suicide-in-the-healthcaresetting/

Theory of Social Justice The idea that limited

resources should be distributed in such a way that
all people are guaranteed basic human rights
(Bunkers, 2001).
Theory of Equality The role of medicine in
society is to aim to promote and secure the
health aspects that enable equal functioning in
society for all citizens (Kangasniemi, 2010, p.
824)

In summary, increasing public sentiment that hospitals were

refusing to treat patients based on inability to pay led to public
outcry and the creation of EMTALA legislation (Bitterman,
2009). This legislation mandates that anyone who comes to the
ED with an emergency has a legal right to a medical screening
exam and stabilization prior to transfer (History of EMTALA,
n.d.). While the altruistic notions behind EMTALA are
espoused by most healthcare providers (Walker, 2010), lack of
definition regarding what constitutes a medical emergency, or
when EMTALA rights end, has created a large financial and
legal burden on hospitals and emergency providers (Bitterman,
2009). To counteract this burden and retain emergency
physicians, the CMS has tried to clarify the specifics of
EMTALA, while the courts have expanded the EMTALA
domain (Beware of EMTALA, 2009). Legislation put forth to
reign in the cost of EMTALA lawsuits has met with limited
success (Bitterman & Fish, 2012).

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Moses v. Providence Hosp. and Med. Ctrs., Inc., 561 F.3d 573 (6th Cir. 2009)

Reynolds v. Mainegeneral Health, 218 F. 3d 78 (1st Cir. 2000)

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