Medico Legal

Emergency Medical Treatment
and Active Labor Act and

Medicolegal Issues
Robert A. Bitterman
PERSPECTIVE Emergency Medical Condition

Practicing good medicine in the emergency department (ED) may EMTALA defines an EMC as “acute symptoms of sufficient sever-
have been enough to avoid legal entanglements historically, but ity (including severe pain) such that the absence of immediate
no longer. Federal and state laws now directly govern the practice medical attention could reasonably be expected to result in
of emergency medicine. The magnitude and complexity of the (1) placing the health of the individual (or, with respect to a preg-
controlling legal authority plus the significant penalties for non- nant woman, the health of the woman or her unborn child) in
compliance, such as criminal sanctions, civil lawsuits, civil mon- serious jeopardy, (2) serious impairment to bodily functions, or
etary penalties, and exclusion from participation in Medicare and (3) serious dysfunction of any bodily organ or part.”6 In the case
Medicaid, dictate that emergency physicians acquire functional of a pregnant woman who is having contractions, an EMC is
knowledge of these laws. defined as one in which “there is inadequate time to effect a
Federal law—the Emergency Medical Treatment and Active safe transfer to another hospital before delivery, or that transfer
Labor Act (EMTALA), a section of the Consolidated Omnibus may pose a threat to the health or safety of the woman or the
Budget Reconciliation Act of 1985 (COBRA), also known as the unborn child.”7
“antidumping” statute—governs how emergency physicians must Competent physicians can reasonably disagree as to whether
triage, register, examine, provide workup, treat or stabilize, dis- certain conditions are serious enough to constitute an “emer-
charge or transfer, use hospital resources, and involve medical staff gency.” However, the courts hold that the relevant factor is
expertise when caring for patients presenting to the ED.1-3 State whether the physician perceived the patient to have an EMC, not
laws further control the practice of emergency medicine through whether the patient actually had an EMC and not whether the
such issues as consent, reporting requirements, confidentiality emergency physician or hospital should have known that the
requirements, forensic and police matters, civil commitments, and EMC existed. The focus is whether the physician or the hospital
emergency medical services (EMS) statutes. did in fact actually determine that the patient had an EMC; the
standard is subjective, not objective.8 If the physician and the
hospital perform an appropriate MSE and in good faith deter-
EMERGENCY MEDICAL mine that no EMC existed, the courts will not retrospectively
TREATMENT AND ACTIVE review that decision; rather, it will be a simple state malpractice
LABOR ACT (EMTALA) issue of whether the examination and diagnosis met the applica-
ble standard of care.
EMTALA originally was enacted to prevent private hospitals from If the MSE does not reveal an EMC, further care of that patient
refusing to treat indigent patients with medical emergencies or is not controlled by EMTALA, so the law’s provisions governing
transferring (“dumping”) them in an unstable condition to public stabilizing treatment, transfer of the patient, or involvement of
hospitals. Subsequent amendments to the law, government regula- on-call physicians no longer apply. This interpretation emphasizes
tions, and court decisions greatly expanded the reach of EMTALA, the critical importance of documentation of the presence or
such that the law now sets national standards for the provision of absence of an EMC during a patient’s initial ED evaluation. A
emergency services.2-4 Today, emergency physicians must have a check box to indicate such should be on every ED medical record.
solid understanding of EMTALA’s statutory requirements and
how the regulatory agencies and the courts interpret the three “Any Individual”
main aspects of the law: screening, stabilizing, and discharging or
transferring ED patients. Everyone who presents to the ED requesting care must be screened.
Whether the patient is indigent, a member of a managed care
Medical Screening Examination plan, or covered by Medicare, Medicaid, or private insurance is
irrelevant; the hospital must provide everyone who presents for
Any person who comes to an ED requesting examination or treat- care with an MSE.5 This includes all populations of patients, such
ment for a medical condition must be provided with an appropri- as illegal aliens, minors, and private patients of the hospital’s
ate medical screening examination (MSE).5 The purpose of the medical staff, but excludes persons who are already patients of
MSE is to determine whether the patient has an emergency medical the hospital, such as inpatients or outpatients undergoing a sched-
condition (EMC).6,7 uled procedure at the hospital who are brought to the ED for
e60
Emergency Medical Treatment and Active Labor Act and Medicolegal Issues e61
2
emergency care. The screening of minors is discussed later in the time.2 Units qualifying as dedicated EDs include typical hospital
section on consent. EDs, labor and delivery units, and psychiatric intake centers.
CMS also intended EMTALA to apply to urgent care centers.
Request for Examination or Treatment of However, urgent care centers do not hold themselves out as able
a Medical Condition to provide care for EMCs as defined by the statute, nor do they in
actuality provide care for a sufficient number of true emergencies
Mere presence in the ED or on hospital property is not sufficient to meet the regulatory percentage. Thus the typical urgent care
to trigger the hospital’s duty to provide an MSE; a request for center is not likely to meet CMS’s regulatory definition of a dedi-
examination or treatment also is necessary. The request can be cated ED and therefore will not have to comply with EMTALA.
made by anyone on behalf of the patient, including EMS person- Hospitals should examine how their relationship with any urgent
nel, a police officer, or a babysitter; the request does not have to care center is legally structured in conjunction with the regula-
come from the patient, a family member, or a legal guardian.5 tions to determine whether EMTALA applies.2,13
Also, if a person is unable to speak to request care, that person’s CMS specifically exempts a number of on-campus areas from
behavior may constitute a request if the hospital’s personnel are compliance with EMTALA—in general, those areas that typically
aware of the behavior and a prudent layperson would believe that do not provide emergency care, such as physicians’ offices, skilled
the behavior indicated a need for examination or treatment.2 nursing facilities, other entities that participate separately under
Medicare, and other nonmedical facilities on campus.2 CMS also
Private Patients exempts application of the law to off-campus facilities and other
“departments of a provider” that were never intended or struc-
In many hospitals, members of the hospital’s medical staff often tured to manage EMCs, such as dialysis centers, rehabilitation
meet their private patients in the ED. These patients are examined units, laboratories and radiology centers, and primary care clinics.
and treated by their private physicians, not the emergency physi- However, these facilities must have written policies and proce-
cian on duty. Such practice is entirely appropriate to maintain dures for appraisal of emergencies and arrangement of transfer
physician-patient relationships and is allowable under EMTALA. when it is appropriate.14,15
However, the hospital should have prearranged procedures for Presentations to the hospital’s dedicated ED require only a
handling of private patients that do not unduly delay the patient’s request for examination or treatment of a medical condition; it is
MSE; otherwise, the hospital could be liable under EMTALA for not required that the presentation be for a medical condition
failure to provide an “appropriate” MSE. Delay of treatment in that constitutes a true emergency to trigger EMTALA’s screening
such instances also frequently results in hospital liability through duty. Presentations to hospital property other than to the dedi-
state malpractice actions. cated ED do, however, require the request to be for an EMC before
Triage of all private patients should be conducted according to EMTALA applies.2
the hospital’s established protocols. If the triage nurse determines
that the patient requires immediate care, the emergency physician “Parking” of Patients Brought by Emergency
on duty should provide the necessary treatment until the patient’s Medical Services to the Emergency Department
private physician arrives in the ED to assume the patient’s care.
If triage determines that the patient does not require immedi- Overcrowding led some hospitals to ignore ambulance patients,
ate care, the emergency physician should see the patient in the leaving EMS to care for them until the hospital “accepted” the
order consistent with the usual practice of the ED, generally in patient, a practice termed EMS “parking.” These hospitals errone-
the order of acuity or time of arrival. If the private physician ously believed that unless they accepted responsibility for the
comes to the ED and sees the patient before the emergency physi- patient, they had no EMTALA duty to provide care or to accom-
cian does, the examination by the private physician constitutes modate that patient. CMS issued a memorandum reminding hos-
the required MSE by the hospital. In this situation, no undue pitals that their EMTALA obligation begins the moment the
delay of the MSE for any nonmedical reason has occurred. patient “comes to the ED” and a request is made on behalf of the
However, if the patient’s private physician has not arrived by the patient for examination or treatment of a medical condition, not
time the emergency physician would normally examine the when the hospital “accepts” the patient.16 Of note, the practice of
patient, the emergency physician should perform an MSE. If no parking EMS patients also may violate Medicare regulations,
EMC is evident, the patient can wait for his or her physician to which require hospitals to “meet the emergency needs of patients
arrive. If an EMC exists, the emergency physician should under- in accordance with acceptable standards of practice.”17
take appropriate stabilizing treatment until the patient’s physi- CMS later clarified that its parking memo did not mean that
cian arrives.9,10 hospitals are required in all instances to take instant custody and
responsibility of all patients brought in by EMS, stating that its
“Comes to the Emergency Department” guidance “should not be interpreted to mean that a hospital
cannot ever ask EMS staff to stay with an individual transported
The Centers for Medicare and Medicaid Services (CMS) deems by EMS to the hospital when the hospital does not have the capac-
anyone on hospital property to have “come to the emergency ity or capability to immediately assume full responsibility for the
department.”11,12 According to CMS, “hospital property” consists individual.”18 CMS noted that in certain circumstances, such as an
of the entire main hospital campus, including parking lots, side- influx of multiple trauma victims, it would be reasonable for the
walks, and driveways, and any ambulance owned and operated hospital to ask the EMS provider to stay with the patient until such
by the hospital, even if the ambulance is not on hospital time as the ED staff became available to care for that person.
grounds.12 CMS then divides hospital property into “dedicated CMS did affirm, however, that “even if a hospital cannot imme-
emergency departments” and all other property that is not a diately provide an MSE, it must still triage the individual’s condi-
dedicated ED. tion immediately upon arrival to ensure that an emergent
A dedicated ED is defined as any department or facility of the intervention is not required and that the EMS provider staff can
hospital, whether on or off campus, that is licensed by the state as appropriately monitor the individual’s condition.” CMS reviews
an ED; is held out to the public as a place that provides care for complaints of this nature on a case-by-case basis to determine
persons with EMCs on an unscheduled basis; or actually does whether the hospital violated EMTALA’s medical screening
provide care for persons with EMCs a certain percentage of the mandate.18
e62 Emergency Medical Treatment and Active Labor Act and Medicolegal Issues
National Emergencies or Disasters patient’s private physician performed an office examination

immediately before sending the patient to the ED. This require-
Under certain circumstances, the Secretary of Health and Human ment of EMTALA may not be cost-efficient medicine, but both
Services can exempt hospitals from EMTALA during times of CMS and the courts agree that a hospital is required to provide an
national or local disasters or terrorist acts, bioterrorist events, or MSE to any person who comes to the ED and requests examina-
pandemic infectious disease.19,20 tion or treatment for a medical condition.1,21
All patients presenting for minor treatments should be triaged,
Other Emergency Department Functions registered, and managed as all other ED patients are. The ED
evaluation should determine whether the patient’s condition
Hospital EDs serve many functions other than the evaluation and meets the definition of an EMC before the hospital administers
treatment of patients with true medical emergencies. Physicians any medications. CMS and the courts will assume that these
on the hospital staff may use the ED in the off-hour periods to patients requested examination or treatment, and the hospital
provide injections or to obtain laboratory tests or radiographs for must demonstrate that either (1) these patients did not request
their patients. Police use the ED to obtain blood alcohol samples that an MSE be performed or (2) the ED evaluation did not
on allegedly intoxicated automobile drivers. Some hospitals may reveal an EMC.
use the ED to provide urine drug screens of injured workers, Fundamentally, the hospital still must perform an MSE to the
prescription refills, allergy injections, rabies vaccinations, blood extent necessary to determine whether an EMC exists, regardless
transfusions, or other community medical services (e.g., blood of whether the patient’s presenting complaint appears to be trivial
pressure screening or “flu shots”). or for a “nonemergency” condition.2,13
Laboratory Tests and Radiography Requests Prescriptions

The test category includes urine or serum drug screening, routine In small communities, local pharmacies frequently are not open
laboratory tests, and imaging studies. In each case, no immediate continuously. Hospital pharmacies, sometimes through the hos-
medical decision-making is required. The patient’s physician pital ED, fill prescriptions for patients in off-hours. Patients pre-
determines the indication for the studies and is responsible for the senting to the ED to fill these prescriptions do not need an MSE.
patient’s care, including following up on the test or radiography If the prescription is filled through the ED, the hospital should
results. The patient is not requesting “examination or treatment have the patients sign a form indicating that they are not request-
for a medical condition” by the hospital’s ED, so the hospital does ing an MSE, for the same reasons and in the same manner as when
not need to provide an MSE. tests are done in the ED at the request of physicians.
Such patients should not be sent through triage and should not This situation is different from that in which patients present
have their vital signs taken, and the hospital should not create the to the ED for prescription renewals. Patients requesting “refills” on
usual ED chart for them. They should not be asked to sign the this basis are seeking not pharmacy services but medical decision-
usual ED “consent for treatment” forms, which could imply that making services from a physician by asking for a prescription
they were requesting examination and treatment. Separate paper- renewal to treat an underlying medical condition.2,9 Therefore,
work should be used to document the visit, the particular test patients seeking prescription renewals must be provided with
performed, the patient’s informed consent for the testing, any an MSE.
communication with the private physician, and a specific state-
ment that the patient is not requesting an MSE from the ED, with Sexual Assault Cases
the patient’s signature.
Some persons come to the ED on their own, not at the request The ED often assists police in the collection of evidence related to
of their physician, and request a test (e.g., for pregnancy or human alleged sexual assault cases. If a person comes to the ED solely to
immunodeficiency virus serostatus). All such persons should be provide evidence for the criminal investigation and is not request-
given an MSE before any test is conducted. If the person declines ing examination or treatment for a medical condition, no MSE is
the MSE, he or she should be referred elsewhere to obtain the required. However, if the person complains of pain or injury or
requested test: outpatient clinic, personal physician, or public wants pregnancy or sexually transmitted disease prophylaxis, that
health clinic or a local drugstore for a pregnancy test. Documenta- person is requesting examination or treatment for a medical con-
tion that the person declined the offered MSE is essential. dition and must be provided with an MSE.22
Minor Treatments Preventive Services

The minor treatment category includes allergy injections, tetanus Blood pressure screening and vaccination services do not require
immunization, rabies vaccination, bloodletting or blood transfu- an MSE. The patient receiving such services is not requesting
sions, chemotherapy infusion for cancer or possible organ trans- examination or treatment for a medical condition. The patient is
plant rejection, reinsertion of a feeding tube or Foley catheter, attempting to prevent illness prophylactically, not seeking treat-
prescription refills, suture removals, antibiotic injections, and nar- ment of an illness. These vaccinations are distinct from tetanus
cotic injections for chronic pain syndromes. Patients presenting to boosters, because boosters typically are administered in response
the ED requesting treatment should be given an MSE. In each to injury and represent a component of medical decision-making
instance, the common denominator is the element of medical and treatment.
decision-making.
Antibiotic and narcotic injections require special comment. Police Blood Alcohol Tests
Physicians, particularly in rural hospitals, may send their patients
to the ED and then call in phone orders for parenteral medica- For both medical and legal reasons, an MSE should be offered to
tions. If such patients are not examined by the emergency physi- all persons presenting to the ED for police-requested blood alcohol
cian on duty, it probably violates EMTALA because the hospital is samples.23 This scenario is different from that in which patients
not providing these patients the same MSE as it would for any present to the ED to have blood tests done as ordered by their
other patient with the same complaint. It is irrelevant if the physicians. Persons in police custody have not been examined by
a physician, and the results of the test will not be returned to a neurologic examination, computed tomography scan, and lumbar
physician to care for the patient. The police officer brought the puncture to decide whether a headache patient has a subarachnoid
patient because of aberrant behavior, suspected to be caused by hemorrhage, then those procedures are considered part of the
alcohol intoxication. Many diseases mimic alcohol intoxication, MSE.
including hypoglycemia, cerebral hypoxia, head injury, metabolic Thus, if the ED usually has ultrasonography, computed
abnormalities, and other toxins. Medically, alcohol intoxication tomography, ventilation-perfusion scans, and similar tests avail-
should not automatically be presumed as the cause of the patient’s able, it must use those resources if necessary to determine whether
condition merely because it is so common. The emergency physi- the patient has an EMC. However, the hospital is obligated to
cian should examine the person in custody to determine if an use only the resources ordinarily available to its ED.5 Neither
EMC exists.9 the statute nor the regulations mandate that hospitals expand
The patient may refuse the MSE and request that only the blood resources or offer additional services to ED patients. An exception
be drawn. If the patient appears competent, this can be done. The may be the use of interpreters for patients not fluent in the English
refusal of the MSE must be documented, as noted for other testing language, which is required by the Medicare conditions of
done in the ED, with additional documentation of the risks and participation.30,31
benefits of the offered MSE and careful notation of the patient’s CMS views the ancillary services available to the ED as includ-
competence. If the patient is too intoxicated to make medical deci- ing the services of on-call physicians if their expertise is required
sions, release from the ED should be delayed until the patient is to decide whether the patient has an EMC.2,9,13,28,30,32 If the emer-
competent enough to make rational decisions. Only physicians gency physician cannot determine whether a patient has an EMC,
should assess and document a patient’s competence; other ED the physician must use the on-call physician services to help make
personnel should not be allowed to make these decisions.9 that determination. For example, if it takes an on-call surgeon to
Again, under EMTALA, the “request for examination or treat- decide whether a patient has an “acute abdomen,” the surgical
ment” can be made by anyone on behalf of the patient. The police evaluation becomes an integral part of the hospital’s MSE.
officer’s request for blood alcohol sampling may be sufficient to
constitute the request for an MSE. Policies, Procedures, and Practice Guidelines
Health Care Providers Qualified to Perform The federal courts hold that an appropriate MSE has two compo-
the Medical Screening Examination nents: (1) the examination must be “reasonably calculated to iden-
tify critical medical conditions” and (2) the “exact same level of
EMTALA does not specify whether a physician, a nurse, or another screening must be uniformly provided to all patients who present
health care provider must perform the MSE. CMS regulations with substantially similar complaints.”29 In other words, a hospital
require that the screening examination be done by “qualified satisfies the requirements of EMTALA if it conducts standard
medical personnel”24 and that the hospital’s governing body for- screening procedures, uniformly, for all patients with similar com-
mally designate, in writing, who is a qualified person to perform plaints and circumstances.
medical screening on behalf of the hospital.25,26 CMS specifies that Each hospital determines its own standard screening policies
the hospital cannot allow the medical director of its ED to desig- and procedures. By necessity, each hospital’s standard will be indi-
nate who is qualified to perform screenings on behalf of the vidualized because each hospital ED has its own capabilities and
hospital.27 different ancillary services available. Once a hospital defines its
Triage by a nurse does not constitute an MSE, even for “obvious” standard screening process, however, it must apply that process
nonemergent conditions. Neither CMS nor the courts accept uniformly to all patients presenting with similar complaints, and
triage as adequate to determine whether an EMC exists.2,3,9 material departure from its standard screening procedure consti-
It is strongly recommended that hospitals designate physicians tutes inappropriate screening under EMTALA. Because motive is
to be primarily responsible for MSEs performed in the ED. Either not a relevant issue in the federal courts (except the Sixth Circuit
the physician personally performs the screening or is directly Court) or during CMS investigations, liability may result from any
responsible for examinations performed by physician assistants material deviation of the hospital’s screening process, regardless
(PAs), nurse practitioners (NPs) or house staff. It is appropriate of the hospital’s motive and regardless of the reason for the devia-
to use PAs and NPs to screen patients who are determined by nurse tion. For example, a Florida hospital’s screening policy stated that
triage to have less acute or severe conditions. However, the physi- triage would be conducted within 3 minutes after a patient’s
cian on duty should have a direct supervisory role with the PA and arrival at the ED. In one instance, a patient was not triaged until
a collaborative arrangement with the NP. 45 minutes after arrival; this delay constituted a violation of the
law because the hospital did not follow its own policy.9
Ancillary Services as Part of the Medical Once hospitals define their own standard screening process,
Screening Examination they will be held to that standard, by both plaintiffs and the gov-
ernment enforcers. Investigators and plaintiff attorneys will sub-
The law requires hospitals to provide the screening examination poena and closely examine the hospital’s policies and procedures,
“within the capabilities of the hospital’s emergency department, medical staff bylaws, ED rules and regulations, practice guidelines,
including ancillary services routinely available to the emergency and other written information on the screening process. They will
department.”5 According to CMS, this means that the scope of an compare the written process to what actually transpired. These
MSE may “range from a simple process involving only a brief hospital documents must be drafted very carefully to avoid unin-
history and physical examination to a complex process that also tended liability.
involves performing ancillary studies and procedures such as (but Practice guidelines or protocols, including managed care
not limited to) lumbar punctures, clinical laboratory tests, CT manuals, adopted by EDs or hospitals may be treated essentially
scans, and/or diagnostic tests and procedures.”28 the same as the hospital’s own policies and procedures. They also
Because the stated purpose of the MSE is to determine whether are routinely used to demonstrate that the hospital “failed to
an EMC exists, CMS and the federal courts hold that the hospital follow its own rules” when hospitals and physicians do not adhere
must conduct whatever examination is necessary to make that to their adopted parameters. In fact, practice guidelines are used
determination.3,29 It may take only a visual glance to rule out an against physicians and hospitals much more frequently than they
EMC in a patient with a rash. However, if it takes a complete are used to their benefit in malpractice litigation.33
Registration Process, Collections or in the same manner.34,35 In addition, the triage team, physician and
Insurance Information, and Authorization nursing staff, and all clinical personnel should not know the
patient’s insurance status throughout the initial screening and
CMS does allow hospitals to conduct reasonable registration pro- stabilizing treatment. This removes insurance status as an issue
cedures in the ED, including collection of insurance data or cash should the government later claim that the staff was motivated in
at the time of registration, as long as the process does not delay some way or treated the patient disparately on the basis of finan-
the MSE. A reasonable registration process may obtain demo- cial class. It is easier to prove that actions were not predicated on
graphic data and the name of the patient’s physician and deter- the patient’s financial status when the staff lacked knowledge of
mine whether the patient is insured and the type of insurance. that status than to prove that the actions were medically appropri-
During the registration process, the patient can sign the hospital’s ate despite knowledge that the patient had no insurance.
usual “informed consent to be examined” form and a routine form After the MSE and initiation of stabilizing treatment, insurance
that holds the patient financially accountable for any charges not status and ability to pay can be considered in determining the
covered by the patient’s insurance carrier.2 patient’s future care, such as hospital admission, transfer, or dis-
The key is to create parallel tracks for medical and financial charge and follow-up.
issues and to ensure that the financial track never interferes with
the medical care in any way. “Bedside registration” probably is Documentation
necessary under the existing regulatory scheme to avoid “no-delay”
violations because CMS would consider any delay in access to the EMTALA is a technical law, and compliance with the technicalities
MSE due to diversion to the registration area to be against the law. requires proper documentation. Furthermore, clinical outcomes
Waiting for examination and treatment because the ED is over- are irrelevant under government enforcement, and compliance
whelmed is not a violation, but waiting for examination because is not presumed; hospitals must prove compliance through
the registration clerks are collecting insurance information prob- documentation.
ably is a violation.2
CMS warns hospitals not to coerce patients into leaving before Central Log
they receive their federally guaranteed MSE, stating “reasonable
registration processes may not unduly discourage individuals Hospitals must maintain a central log of all patients presenting to
from remaining for further evaluation.”2 Collection of copay- the ED requesting examination or treatment. The log must contain
ments, down payments, advanced beneficiary notifications, or the name and disposition of the patient, including whether the
signatures on managed care financial forms may constitute such patient refused treatment, whether the hospital refused to provide
“economic coercion” if it is not done very carefully. Hospitals also an MSE or treatment, and whether the patient was treated and
should ensure that staff behavior does not create a hostile environ- stabilized, admitted, transferred, or discharged.36 The purpose of
ment or constructive denial of the MSE. the log is to permit CMS and state surveyors to select and review
Furthermore, hospitals should never delay a patient’s MSE to individual records to investigate whether the hospital is in compli-
obtain prior authorization from a managed care organization ance with the law.28
(MCO). First, managed care authorization is authorization for The log must include all persons presenting to the hospital’s
payment only—it is not authorization for treatment, and second, dedicated EDs, whether on or off campus.2,36,37 These areas include
CMS explicitly bans prior authorization for managed care plans the typical ED, ambulatory care or fast-track areas contained
before completion of the MSE and commencement of stabilizing within the ED, freestanding emergency centers, labor and delivery
treatment.2 Hospitals may obtain authorization for payment from suites, and psychiatric intake centers.2 The logs are not required
insurance entities only “concurrently” with stabilization of the to be collated into a single document but must be retrievable at
patient.2,27 Hospitals are legally obligated to provide the MSE, and CMS’s request.
they will be held to that standard regardless of the financial pres-
sures placed on them by MCOs. (As a related issue, “Managed Medical Record
healthcare plans cannot deny a hospital permission to examine or
treat their enrollees. They may only state what they will and will All areas of the hospital used to conduct the MSE must create a
not pay for, and regardless of whether a hospital is to be reim- medical record for the patient and keep a log of those presenting
bursed for the treatment, it is obligated to provide the services for examination and treatment.38 If members of the hospital
specified in EMTALA.”27) medical staff see their patients in the ED, on either a scheduled or
Patients often ask questions about their obligation to pay for an unscheduled basis, the hospital must create a medical record
emergency services, particularly whether their insurance will cover and require the physician to document the care provided in that
the visit or how much it will cost to receive care at the ED. Regard- record. The physician’s private office records documenting care
less of EMTALA, all patient questions should be answered forth- provided at the hospital are insufficient.
rightly, honestly, and completely by the hospital staff. In general, Most important, the emergency physician should document
routine financial questions can be answered by registration per- whether an EMC was determined to exist for every patient seen in
sonnel or triage nurses trained to give “stock answers,” to not the ED, even if the initial chief complaint is seemingly trivial. The
discourage or coerce the patient in any way, and to encourage the legal purpose of the required MSE is to determine if an EMC is
patient to stay, with discussions of payment deferred until after an present. To facilitate documentation, ED charts should include
MSE is performed. two check boxes: one labeled “EMTALA EMC present” and the
After the hospital answers the patient’s questions, the patient is other “EMTALA EMC absent.” The person performing the MSE
responsible for making informed decisions about further aspects should check the appropriate box for each patient, and completion
of care. If a patient chooses to withdraw a request for examination of this documentation should be a prime part of the ED’s quality
or treatment and to leave the ED, hospitals need to carefully improvement monitoring program.
handle the interaction related to the patient’s “voluntary with-
drawal” (see the later section on consent). Whenever the patient Stabilization Requirements
intends to leave, the staff should involve the physician on duty.
Regardless of managed care status, “VIP” status, private patient Once the hospital determines that an individual has an EMC,
status, or any other classification, all patients should be processed EMTALA requires the hospital either to stabilize the EMC or, if it
lacks the capability to stabilize the patient, to transfer the patient The treating physician needs to decide whether a patient’s EMC
to another medical facility that can provide the necessary treat- is stable or unstable. If two physicians disagree about whether the
ment.39 A sample form for use in documenting such transfers and patient is stable but only one of the physicians is at the bedside
patient consent to transfer is shown in Figure 1. caring for the patient, the on-site physician should make the deci-
When and if the patient is “stabilized” has significant ramifica- sion.2,9 It is not appropriate for an on-call physician, a “managed
tions for hospitals and physicians because once patients are stabi- care gatekeeper” physician, a physician at a receiving facility, or
lized, EMTALA no longer applies.40 After stabilization, hospitals even the patient’s regular attending physician to disagree with the
are free to refuse to provide further treatment or to transfer sta- decision of the on-site physician over the phone. If one of these
bilized patients for purely financial reasons. On-call physicians can outside physicians wants to overrule the determination of the
refuse to treat or to admit stable patients or insist that stable on-site physician, he or she must come to the hospital and person-
patients be transferred owing to their lack of or type of insurance. ally examine the patient.
An MCO can refuse further payment to the hospital and request EMTALA defines the term stabilized as follows: “no material
that the stabilized patient be transferred to one of its contracting deterioration in the condition is likely, within reasonable medical
facilities.41,42 probability, to result from or occur during the transfer of the
However, other federal, state, or local standards may govern individual from a facility.”47 For a pregnant woman having con-
further treatment or transfer of ED patients. For example, state tractions who has an EMC, stabilized means that delivery (includ-
laws often prohibit hospitals from transferring patients for any ing the placenta) has occurred.48
reason except that they are incapable of handling the patient’s This is a legal definition of stabilization, not a medical defini-
medical problem. tion. The standard of care for any patient diagnosed with an EMC
Two elements must be present to trigger EMTALA’s stabilization will be judged by this legal definition, not by the usual medical
requirement: (1) the patient must have an EMC, as defined by law, malpractice standards. This is a national standard under federal
and (2) the hospital must determine that an EMC exists. That an law, not a local standard under state malpractice law.9,48
EMC exists is not sufficient to invoke the duty to stabilize; the The question of “stabilization” typically arises only when the
hospital also must have actual knowledge that the EMC is present. patient deteriorates during or after the transfer and experiences
Actual knowledge is a legal term that means the examining physi- an adverse medical result. It is likely to appear, particularly in
cian subjectively believed that an EMC existed. It is not the com- hindsight, that the patient was not completely stabilized before
monly understood objective standard used in malpractice cases, transfer. Health care providers should remember that their com-
wherein liability is predicated on whether the physician knew or pliance usually will be judged by an unsympathetic jury, aided by
reasonably should have known that the patient had an emergency hindsight, in the context of impairments suffered by the patient
condition. Whether the physician’s judgment was negligent, or in an adverse medical outcome. Unfortunately, the court system,
even grossly negligent, is irrelevant under EMTALA. The subjective not the health care system, will ultimately determine when a
perception of the examining physician controls whether EMTALA’s patient with an EMC is legally “stabilized.”9,48
stabilization requirement is triggered. The U.S. Supreme Court, in the case of Roberts v Galen, ruled
The appellate courts have uniformly held that if an EMC is not that a plaintiff need not show improper motive for a transfer to
detected, the hospital has no stabilization duty and cannot be prevail on a failure-to-stabilize claim under EMTALA. The plain-
charged with failure to stabilize the patient’s condition.8,9,43,44 Fur- tiff merely must prove that the patient was not properly stabilized
thermore, consideration or suspicion that an EMC may exist does before the transfer.49
not rise to the level of actual knowledge. If the hospital fails to EMTALA’s requirement to provide on-call physicians no longer
detect an EMC through its standard screening procedures, the extends to inpatients diagnosed with an EMC.2 Other Medicare
patient has only a state malpractice claim of “failure to diagnose” conditions of participation govern inpatient care, and hospitals
and not a federal cause of action for “failure to stabilize” the emer- certainly should implement policies and procedures to provide
gency condition. Once the physician or hospital does diagnose an emergency specialty services to patients in whom an EMC devel-
EMC, however, the courts will allow a failure-to-stabilize claim to ops after admission to the inpatient setting.2
be brought in federal or state court under EMTALA.
This aspect of EMTALA is distinctly different from ordinary
malpractice. Documentation in the medical record of “no EMC Disposition Issues under EMTALA
present” eliminates all further liability under EMTALA; under- Admission
standing and use of this distinction should be part of every ED’s
risk management program. Once the emergency physician determines that a patient needs
The screening section of EMTALA mandates the hospital to to be hospitalized, the patient’s physician or the appropriate
provide only those services within the capability of the ED, includ- on-call physician should be contacted. If the admitting or on-call
ing ancillary services routinely available to that department.5 The physician disagrees with the emergency physician’s judgment, it
stabilization section, however, requires the level of services within is incumbent on the admitting or on-call physician to come to
the capabilities of staff and facilities available at the hospital.45 the ED to personally examine the patient. This fact should be
The capabilities of the hospital staff include whatever intensity mutually understood by the entire medical staff and the hospital
of care the personnel of the hospital can provide within the train- administration and should be written into hospital policy and
ing and scope of their professional licenses and hospital privi- procedure.
leges.27 To ensure that hospitals can stabilize patients, Congress Direct patient admissions are problematic. In the three most
mandated that Medicare-participating hospitals maintain a list of common scenarios, the patient (1) is sent to the ED after being
on-call physicians available to provide treatment necessary to sta- examined by the primary care physician (PCP) in the office, (2) is
bilize a patient with an EMC.46 sent in after phone contact with the PCP, or (3) is accepted by
Thus, whenever the ED determines that a patient has an EMC, phone-in transfer from a different hospital ED or inpatient setting
the hospital must use the full capabilities of its staff, facilities, and by the PCP. In all three cases, the PCP intends to see the patient
on-call physicians to stabilize the patient.2,45 If the hospital is after admission to the inpatient setting rather than in the ED.
unable to stabilize the patient, a physician must certify that a Medically, each presentation may require a different level of acute
transfer is medically indicated and arrange an “appropriate” trans- intervention, but legally all are the same under EMTALA.2,3,13 CMS
fer to a higher level facility. does not apply the law to inpatients regardless of whether they are
Emergency Medical Condition (EMC) Identified: (Mark appropriate box(s), then go to Section II) [Dr. Bitterman - 2013]
I. MEDICAL CONDITION: Diagnosis____________________________________________________________________
No Emergency Medical Condition Identified: This patient has been examined and an EMC has not been identified
Patient Stable - The patient has been examined and any medical condition stabilized such that, within reasonable
clinical confidence, no material deterioration of this patient’s condition is likely to result from or occur during transfer.
Patient Unstable - The patient has been examined, an EMC has been identified and patient is not stable, but the
transfer is medically indicated and in the best interest of the patient.
I have examined this patient and based upon the reasonable risks and benefits described below and upon the information available to me, I certify that
the medical benefits reasonably expected from the provision of appropriate medical treatment at another facility outweigh the increased risk to this
patient’s medical condition that may result from effecting this transfer.
II. REASON FOR TRANSFER: Medically Indicated Patient Requested ____________________________________

On-call physician refused or failed to respond within a reasonable period of time.
PHYSICIAN
Physician Name: _________________________________Address ________________________________________________

III. RISK AND BENEFIT FOR TRANSFER:
Medical Benefits : Medical Risks :
____________________________________________ __________________________________________________
Obtain level of care/ service NA at this facility. Deterioration of condition in route ___________________
Service _____________________________________ Worsening of condition or death if you stay here.
Benefits outweigh Risks of Transfer There is always risk of traffic delay/accident resulting in condition deterioration.
IV. Mode/Support/Treatment During Transfer As Determined by Physician– (Complete Applicable Items):

Mode of transportation for transfer: BLS ALS Helicopter Neonatal Unit Private Car Other__________
Agency:_______________________ Name/Title accompany hospital employee:____________________________________
Support/Treatment during transfer: Cardiac Monitor Oxygen – (Liters): __________ Pulse Oximeter IV Pump
IV Fluid: ____________ Rate: _____________ Restraints – Type: ______________ Other:__________ None
Radio on-line medical direction control (If necessary): Transfer Hospital Destination Hospital Other
V. Receiving Facility and Individual: __The receiving facility has the capability for the treatment of this patient (including
adequate equipment and medical personnel) and has agreed to accept the transfer and provide appropriate medical treatment.
Receiving Facility: /Person accepting transfer: ________________________________________Time: __________________
Receiving MD___________________________________________
Transferring Physician Signature_____________________________________________ Date/Time____________________
Per Dr. ____________________ by ______________________RN/ Qualified Medical Personnel ____________ Date/Time
VI. ACCOMPANYING DOCUMENTATION– sent via: Patient/Responsible Party Fax Transporter

NURSING
Copy of Pertinent Medical Record Lab/ EKG/ X-Ray Copy of Transfer Form Court Order
Advanced Directive Other ____________________________________________________
Report given (Person/title):_______________________________________________________
Time of Transfer: _____________Date: ___________ Nurse Signature: ______________________Unit:__________
Vital Signs Just Prior to Transfer: T________ Pulse _______ R _________ BP ________ Time: _________
VII. PATIENT CONSENT TO "MEDICALLY INDICATED" OR "PATIENT REQUEST" TRANSFER:

PATIENT
I hereby CONSENT TO TRANSFER to another facility. I understand that it is the opinion of the physician
responsible for my care that the benefits of transfer outweigh the risks of transfer. I have been informed of the risks and
benefits upon which this transfer is being made.
I hereby REQUEST TRANSFER to _____________________________________. I understand and have
considered the hospital’s responsibilities, the risks and benefits of transfer, and the physician’s recommendation. I
make this request upon my own suggestion and not that of the hospital, physician, or anyone associated the hospital.
The reason I request transfer is: ___________________________________________________________________
Signature of Patient Responsible Person____________________________________ Relationship _____________
Witness___________________________________ Witness_____________________________________
Patient Name:
TRANSFER FORM
Date of Birth:
White:-Receiving facility; Yellow: Medical Record;
Pink:-QA Medical Record Number:
Figure 1. Emergency Medical Treatment and Active Labor Act (EMTALA) hospital transfer form.
directly admitted to the unit, directly admitted by way of the ED, an individual who had been admitted in good faith as an inpatient
or “boarded” in the ED awaiting bed placement. Even if the inpa- at the first hospital.57 In other words, because EMTALA ended for
tient is brought down to the ED, the law does not apply.2,3,24 the hospital that admitted the patient, no other hospital had an
According to CMS, once a hospital admits the individual in good EMTALA duty to accept the patient in transfer, even if the admit-
faith (i.e., the admission is not a ruse to avoid liability under the ting hospital was not able to stabilize the patient.
law) as an inpatient for further treatment, the hospital’s obligation If the Sixth Circuit’s decision in Moses is allowed to stand, it
under EMTALA ends.44,50 would void CMS’s regulation that hospitals are not required to
An inpatient is defined as “an individual who is admitted to a accept inpatients in transfer. If EMTALA continues through
hospital for bed occupancy for purposes of receiving inpatient admission until discharge, CMS loses its basis for claiming that
hospital services … with the expectation that he or she will remain hospitals do not have to accept inpatients with emergency condi-
at least overnight.”2 It does not matter if the situation changes later tions in transfer.56,58 As of the date of this writing, CMS had not
and the patient can be discharged or transferred to another hos- issued any final new rules regarding the application of EMTALA
pital and does not actually use the bed overnight. The key element to inpatients.
is that the patient be formally admitted with a documented admis-
sion order. A physician’s intent to admit or a level of acuity indicat- “Discharge” or “Transfer” to Home
ing that the patient “obviously will be admitted” is not enough to
satisfy the definition. Documentation is critical.2,24 Because EMTALA defines any patient movement away from the
CMS does not consider patients admitted to observation status hospital as a transfer,55 all patients discharged from an ED are
to meet the regulatory definition of admitted patients (not admit- legally considered to have been transferred. Sending a patient
ted for purposes of receiving inpatient services), so EMTALA still home after treatment in the ED who is retrospectively determined
applies to the care of observation patients, such as patients to be unstable is considered to represent a transfer of an unstable
managed in ED chest pain or observation units.2,24 Therefore, patient and, as such, a violation of the law. This exposes the hos-
under existing government regulations, persons who were directly pital to civil litigation under EMTALA for failure of its emergency
admitted and sent through or held in the ED from a physician’s physicians to stabilize patients with known emergency conditions
office, from a nursing home, or in transfer from another ED or before discharge (“transfer”) home.1,49
another hospital inpatient setting are no longer covered by To avoid such retrospective analyses, emergency physicians
EMTALA, even though they have “come to the hospital’s emer- should document that no EMC was found or that the patient was
gency department.” stable on discharge. If the patient leaves without permission, the
However, in 2009 the Sixth Circuit Court of Appeals in the case hospital has not legally transferred the patient.55
of Moses v Providence Hospital rejected CMS’s interpretation, and,
giving no deference to the agency’s rulemaking authority, it over- “Discharge” or Transfer from the Emergency
ruled CMS’s regulation51 that EMTALA ended when the hospital Department to an On-Call Physician’s Office
admitted the patient in good faith. The court determined that the
rule was contrary to EMTALA’s plain language,52 which requires a Because all discharges from the ED are defined as transfers under
hospital to “provide … for such further medical examination and EMTALA, so too are discharges from the ED sent directly to an
such treatment as may be required to stabilize the medical condi- on-call physician’s office for acute intervention. CMS looks
tion.”53 Therefore, the Sixth Circuit Court held that the hospital askance at transfer of patients away from the hospital to a physi-
was required under EMTALA not just to admit the patient into an cian’s office for acute procedures that could have been done in the
inpatient unit for further care but to actually treat him such that ED or in the hospital.21,59 Ophthalmologist services may constitute
he was stabilized before discharge.53 Subsequently, the U.S. an exception because although the ED may have rudimentary eye
Supreme Court declined to review the controversial Sixth Circuit tools, ophthalmologists typically have much better equipment in
decision in Moses, so presently in the states of Michigan, Ohio, their offices for examination of patients with eye complaints to
Tennessee, and Kentucky, EMTALA applies to inpatients, at least determine whether an EMC is present or to treat emergency con-
for civil litigation purposes, even if CMS will not apply that law ditions. In essence, movement to the office in these cases becomes
to inpatients for regulatory purposes.53,54 a medically indicated transfer to receive a higher level of services
In Moses, the issue was whether EMTALA applied to the dis- than the hospital can provide. CMS accepts such movement, so
charge of a psychiatric patient from the hospital inpatient setting, long as the ED arranges a formal transfer in compliance with
many days after he had been admitted through the ED for stabiliz- EMTALA, as noted later.
ing care. After discharge, the patient went home and later mur- CMS’s view is extremely unsatisfactory, particularly to orthope-
dered his wife, so the family sued Providence Hospital under dic surgeons. It is standard practice in most hospitals for the
EMTALA for failure to stabilize the patient before discharging him emergency physician to splint various displaced fractures and send
home. Because EMTALA defines all discharges from the hospital the patient to the on-call orthopedic surgeon’s office for reduction
as “transfers,” regardless of whether the discharge is from the ED of the fracture and further necessary treatment. CMS believes that
or inpatient setting,55 the plaintiff ’s claim was for “failure to sta- the orthopedic surgeon should perform the reduction and treat-
bilize the patient prior to transfer” as required by EMTALA.53 ment at the hospital in each case because the surgeon’s office has
In response to the Moses case, CMS published, in late 2010, an no resources that the hospital lacks.
“advanced notice of proposed rulemaking” soliciting comments However, EMTALA applies only if the EMC is unstable at the
on whether it should rewrite two key rules on the application of time of transfer.1,9 If the ED “stabilizes” the fracture, EMTALA’s
EMTALA to hospital inpatients.56 obligations end. Thus it is reasonable to send patients to the office
Q1. Should EMTALA apply to hospitals that admit patients for for further treatment, so long as they meet the legal definition of
stabilizing care? “stable at the time of discharge” from the ED. The determination
Q2. Should hospitals with specialized capabilities be required to of whether the patient is stable for transfer to the orthopedist’s
accept patients in transfer after they have been admitted at office rests solely on the judgment of the examining emergency
another hospital? physician. If the patient has accompanying injuries or is too
The second question was posed because in 2008, CMS had uncomfortable to be moved, or if the emergency physician believes
issued a rule that hospitals with specialized capabilities did not the injury is such that the patient should not travel, then the ortho-
have an EMTALA obligation to accept the appropriate transfer of pedic surgeon should be asked to care for the patient in the ED.9
Follow-up Care Recommended Procedures for

BOX 1 the Transferring Facility
Obtaining follow-up care for discharged ED patients, particularly
indigent persons and Medicaid recipients, is a significant problem Stabilize the patient whenever possible.
for nearly every hospital. However, EMTALA does not reach the Complete a physician certificate of transfer, including the risks
and benefits of transfer.
on-call physician’s office in this scenario. If the patient does not
Obtain the patient’s informed consent to the transfer.
have an EMC or is stable at the time of discharge, EMTALA does Arrange for another hospital and physician to accept the patient
not apply from that point forward, and the on-call physician has in transfer.
no legal duty under EMTALA to see the patient in the office. Send appropriate data to the accepting facility (e.g., medical
The real issue in ED follow-up is the level of commitment the records, test results, transfer forms).
hospital and medical staff are willing to make to the community. Arrange the transfer through qualified personnel, with use of
If the administration, the board, and the medical staff are com- appropriate transportation equipment.
fortable with their decision and if they have acted in the best Maintain records of all transfers for 5 years.
interests of the patients they serve, they should have no trouble
defending their actions to CMS or any other entity.
Whatever decision the hospital and physicians make about ED
follow-up duties, they should explicitly define those responsibili- Invalid Reasons for Refusal of an Appropriate
ties in the medical staff bylaws or hospital rules and regulations BOX 2 Patient Transfer
so that all personnel understand, in advance, what it means to be Lack of insurance or out-of-network managed care plan
“on call” for the ED at that hospital. Lack of citizenship
ED discharge instruction sheets also should include a fail-safe Veteran status
clause advising patients to return to the ED if their condition Patient’s physician not on staff
deteriorates before seeing the referral specialist or if the follow-up Transferring hospital is out of network or outside hospital’s
arrangements disintegrate for any reason. Such a statement could defined referral area
help the hospital avoid liability when the on-call specialist fails to “We are not an affiliated hospital”
“We are not a specialty hospital”
implement the prescribed follow-up plan.60 “We are a specialty hospital, but that’s not our specialty”
“We are not a ‘trauma center’ ”
Transfers to Other Acute Care Hospitals Transfer originating out of county or out of state (including
transfer of out-of-state Medicaid patients)
Before transferring a patient out of the ED, the emergency physi- EMS skipped over closer hospital
cian must first determine whether the patient is stable, as defined Another hospital refused the transfer in violation of the law
by law. EMTALA regulates the transfer of unstable patients only; Another hospital’s on-call physician refused to respond to its ED
it does not apply to the transfer of stable patients.2,9 If no EMC is in violation of the law
found, the patient is considered stable. The determination of ED, emergency department; EMS, emergency medical services.
whether a patient is stable must be made at the time of transfer
to be valid under the law.59 Unstable patients can be transferred
for only one of two reasons: if the transfer is medically indicated,
or if the patient requests the transfer.9 There is no “managed care Recommendations for the Facility Asked
transfer of an unstable patient” or even of a stable patient. BOX 3 to Accept the Patient in Transfer
Patients usually are transferred out of the ED because the trans- Accept all appropriate requests for transfer, regardless of
ferring facility lacks the capability or the resources necessary to whether the patient is an ED patient or an inpatient of the
treat the identified EMC. Examples of patients best served by hospital.
transfer are the head-injured patient in a hospital without a neu- Have a formal system for accepting or rejecting transfer
rosurgeon on staff, the pregnant woman who needs the services requests and document the reasons for any refusal to accept a
of a high-risk obstetric center, and the multiple-trauma patient patient in transfer.
treated initially in a rural ED who requires treatment at a level 1 Maintain records of all transfers for 5 years.
Report all EMTALA transfer violations to CMS.
trauma center.
EMTALA defines such transfers as medically indicated transfers CMS, Centers for Medicare and Medicaid Services; ED, emergency department;
because the purpose of each transfer is to obtain a higher level EMTALA, Emergency Medical Treatment and Active Labor Act.
of medical care necessary to treat the patient’s condition that
is not available at the transferring facility. EMTALA governs
almost every aspect of medically indicated transfers, including transfers of patients who require such capabilities or facilities, if
requiring hospitals to adopt and to enforce policies to ensure the hospital has the capacity to treat the patient.65
compliance with federal transfer laws and mandating specific The duty to accept patients in transfer is a problematic issue for
actions by the transferring and receiving hospitals (summarized many larger, tertiary care, or academic hospitals as a result of the
in Boxes 1 to 3).1-3,9,61-63 on-call specialty coverage crisis in the United States.66,67 Numerous
Some states have enacted their own transfer laws.64 Most state hospitals have lost full or partial on-call coverage for specialties
laws parallel EMTALA, but some are even more restrictive, such as neurosurgery, orthopedic surgery, maxillofacial surgery,
so physicians responsible for patient transfers should be aware of neurology, plastic surgery, and hand surgery.68,69 CMS’s softening
the controlling laws and regulations in their own state as well as of its EMTALA on-call regulations in late 2003 accelerated the
federal law. trend of physicians’ simply taking fewer call nights at many smaller
to medium-sized hospitals, forcing still more transfers to access
Duty to Accept Appropriate Transfers emergency specialty care.3,70,71 As confirmed in recent surveys,
from Other Hospitals these changes have accelerated physician and hospital abandon-
ment of on-call services, increased the risk of harm to patients
Medicare-participating hospitals that have specialized capabilities needing specialty care, caused more delay in patient access to
or facilities are required by EMTALA to accept appropriate specialty care, and increased the number of patient transfers.70,71
Specialty hospitals also enticed physicians away from acute care the patient in transfer, claiming that the hospital had a federal duty
hospitals, in part because the physicians could decrease their under EMTALA to accept appropriate transfers of patients with
on-call burden. However, CMS now requires specialty hospitals emergency conditions if the transferring hospital could not treat
to accept appropriate transfers even if the specialty hospital the emergency. The transfer acceptance section of EMTALA was
lacks an ED.72 not part of the law when it was originally enacted. Congress later
amended the law, calling it the “nondiscrimination” section,
When Must a Receiving Hospital Accept a Patient because tertiary and academic referral hospitals were refusing to
in Transfer? accept patients in transfer from other hospitals, leaving the patients
A Medicare-participating hospital must accept “medically indi- to die in community EDs.75 This issue was not specifically addressed
cated transfers” if it has “specialized capabilities or facilities” and in the Sixth Circuit opinion in the Moses case, although the court’s
the “capacity” to care for the patient.1 Medically indicated transfers ruling applying EMTALA to inpatients strongly suggests that it
are ones for which a physician determines the patient has an EMC would also apply EMTALA’s transfer acceptance section to inpa-
and needs to be transferred to obtain a higher level of medical care tients as well as to ED patients.53 Thus it still remains to be seen
necessary for treatment of the patient’s condition that is not avail- if the courts will ultimately interpret EMTALA contrary to Con-
able at the transferring facility.39 Specialized capabilities or facilities gress’s nondiscrimination intent for patients with life-threatening
are essentially any resources, other than a routine admission bed, emergencies.76
or physician services available at an accepting hospital but not
available at the transferring hospital. Capacity is rather generously When Can a Hospital Refuse to Accept a Patient
defined by CMS to include whatever a hospital customarily does in Transfer?
to accommodate patients in excess of its occupancy limits. For There are only five reasons for which a hospital can refuse a
example, if a hospital customarily moves patients to other units request for transfer under EMTALA.
or calls in additional staff, it has in fact demonstrated the ability First, if the transfer is not a medically indicated transfer, a hos-
to provide services to patients in excess of its occupancy limits.73 pital can decline the transfer.1 Non–medically indicated transfers
include patient-requested transfers and lateral transfers for any
Who Accepts Patients on Behalf of the Hospital? reason (lateral meaning that both hospitals have the same ability
The duty to accept appropriate transfers is a hospital duty, not a to handle the patient’s EMC), such as managed care transfers or
physician duty, and EMTALA does not require that a physician family- or physician-requested transfers. Any time the sending
accept the patient.1 The hospital must create a formal system des- facility can handle the patient’s EMC, a hospital requested to
ignating who is authorized to accept or to reject patients on its accept the patient in transfer can lawfully decline.
behalf. It is strongly recommended that hospitals do not use the Second, if the hospital does not have the capacity, as defined by
individual physician on call for each specialty alone to accept or CMS, to accept the patient in transfer, it may and generally should
to reject patients in transfer. Hospitals should involve an admin- refuse the transfer.1,2,73
istrative person or an emergency physician in addition to or Third, if the transferring hospital is located outside the bound-
instead of the on-call physician to avoid inappropriate refusals. aries of the United States, the hospital has no legal obligation
Because the duty to accept rests with the hospital, any inappropri- under EMTALA to accept the transfer.77 No other territorial limits
ate refusal by an uninformed or rogue on-call physician subjects are imposed on the duty to accept transfers; out of county, out of
the hospital to termination from Medicare, civil monetary penal- state, and out of the hospital’s designated referral area all are unac-
ties, or civil liability if the patient is harmed because of the refusal ceptable reasons to refuse patients in transfer under EMTALA.
to accept the patient in transfer. Moreover, a hospital cannot refuse to accept a transfer just because
The hospital should define the resources and capacity of the the sending hospital is “skipping over” other hospitals to send the
institution and the times during which those resources are avail- patient its way.
able. When capacity or necessary resources are not available, the Fourth, if the transfer is not “appropriate,” the hospital may
hospital should in a timely manner inform the persons charged refuse to accept the patient in transfer at that time.1 This more
with accepting or rejecting transfers. The hospital also should vague reason takes into account the patient’s condition at the
educate appropriate personnel in its known referral facilities on time of transfer and the time, distance, and skipping over of
the proper procedure to transfer patients into its system, including other hospitals necessary to reach a receiving hospital. For
informing them of who is and who is not authorized to accept example, a trauma patient may need intubation and a chest tube
patients in transfer on behalf of the hospital. The hospital is inserted before the transfer is appropriate, or traveling 100 miles
required to educate its medical staff, particularly its on-call physi- with hypotension from a ruptured abdominal aneurysm may not
cians and emergency physicians, about their responsibilities under be appropriate if closer hospitals are capable of repairing the
EMTALA, including the responsibility to accept patients in trans- aneurysm.
fer from other facilities on behalf of the hospital.74 Fifth, the patient has been “admitted” to the hospital as defined
by CMS (except in hospitals under the jurisdiction of the federal
Does a Hospital Have to Accept Transfers of Inpatients Sixth Circuit Court of Appeals, at least with respect to civil liabil-
from Other Hospitals? ity, as noted earlier in this chapter.)1-3,53
Current CMS-issued regulations state that no hospital has a legal There are no other reasons for which a hospital may refuse a
duty under EMTALA to accept an inpatient in transfer from request to accept a patient in transfer from another acute care
another hospital. Therefore, even if a requested hospital could hospital under EMTALA. Furthermore, no “contingencies” are
treat an inpatient’s emergency condition that the transferring allowed to be placed on the acceptance of a transfer. The receiving
hospital is unable to treat, it may refuse the transfer for any hospital may not condition acceptance of the patient on the
reason, including an economic reason, and not be in violation transferring hospital’s agreeing to take the patient back once the
of EMTALA. emergency condition is resolved, may not require that the trans-
However, the issue is certain to be litigated and decided by the ferring hospital have additional consultations completed before
courts. It is inevitable that an inpatient will develop an EMC and the emergency physician transfers the patient, and may not require
proceed to die or suffer severe damages because no other hospital the transferring hospital to use the receiving hospital’s transport
would accept the patient in transfer because of lack of insurance. ambulance or helicopter service as a condition for accepting
The patient or family will sue the hospital that refused to accept the patient.78
Also, refusal of appropriate transfers on the basis of the patient’s The law presumes that an adult is mentally competent to make
insurance status or delay of appropriate transfers until the trans- medical decisions and that the competent adult is entitled to suf-
ferring hospital obtains authorization for payment from the ficient information to make an informed decision concerning
patient’s managed care plan is definitely illegal under EMTALA.79 the physician’s proposed course of examination and treatment.82
Under the doctrine of informed consent, physicians have the duty
Duty to Report Transfer Violations to disclose the following information to patients82-84:
Any time a hospital has reason to believe it may have received a The patient’s condition or diagnosis
patient transferred in an unstable condition from another hospi- The nature and purpose of the proposed treatment, including
tal, in violation of EMTALA, it must report the transferring hos- the likelihood of success in the physician’s practice
pital to CMS.80 The duty to report rests with the hospital, so Reasonable alternative measures related to the diagnosis and
emergency physicians who receive unstable patients in transfer treatment, including the probable outcome of those
should inform the hospital (risk management or the hospital’s alternatives
legal counsel), which then can determine the appropriate action. The particular known inherent risks that are material to make
an informed decision about whether to accept or to reject the
proposed treatment, including the consequences of refusing
CONSENT FOR MEDICAL CARE that treatment
Informed Consent
Reasonable Person versus Professional
The doctrine of informed consent is a fundamental principle of the Disclosure Standard
American legal system: “Every human of adult years with a sound
mind has a right to determine what should be done with his own The states are split on the standard used to determine what should
body.”81 Physicians may not examine or treat any person without be disclosed for patients to make informed decisions, but most
consent, and that consent must be informed. This means that the require the reasonable person standard of disclosure. Under this
patient must be given all pertinent (“material”) information con- standard, a physician is required to disclose all of the information
cerning the nature, risk, and alternatives of the treatment before that a reasonable person would require to make a decision
that patient can be deemed to have effectively consented to the under the facts and circumstances of the case. The less frequent
medical intervention. standard, the professional disclosure standard, requires the physi-
Physicians should endeavor to obtain informed consent yet cian to provide the same information that other physicians in the
remain cognizant of the significant limitations on and multiple community would provide to patients in the same or similar cir-
exceptions to the doctrine, especially in the ED setting. Delaying cumstances. This is less stringent than the reasonable person
treatment in an emergency to obtain informed consent is a much standard.82,84
more serious and common medicolegal problem than failure to Physicians are not required to disclose every remote risk associ-
obtain proper informed consent. ated with a procedure or risks that are common knowledge or
The law of informed consent contains a great deal of uncer- obvious to the patient, such as the risk of infection after wound
tainty, with many gray areas. Different states have different views, repair.85 The law requires disclosure only of risks that are material,
either in their statutory laws (legislation) or in their common law as judged by their seriousness or chance of occurrence. Courts
(judge-made law or precedent), on the meaning of “informed define material information as information that “the physician
consent” in the care of the ED patient. Most cases are unique and knows or should know would be regarded as significant by a rea-
depend on the specific circumstances. sonable person in the patient’s position when deciding to accept
Emergency physicians rarely have time to seek legal consulta- or reject the recommended medical procedure.”86
tions, let alone wait for a court to render a decision concerning Some states legally require physicians to disclose specific risks,
the legal nuances of consent issues. In these situations, it is helpful such as death.85 Some states statutorily require a physician to meet
for emergency physicians to use a when-in-doubt rule to guide both the reasonable person standard and the professional disclo-
their immediate actions. This rule simply states that when emer- sure standard.87,88
gency physicians are in doubt about the legality of a situation,
“they should do what they believe to be in the patient’s best Physician Role in the Consent Process
interest and worry about the legal consequences later.” Although
emergency physicians risk criminal and civil charges of false The physician who proposes to undertake the procedure must be
imprisonment, battery, and even negligence for failure to obtain the one to obtain the patient’s informed consent. The duty to
appropriate informed consent, the courts almost universally rule obtain consent cannot be delegated, so physicians cannot ask
in favor of physicians who act in good faith on behalf of their nurses or other health care providers to obtain patients’ consent
patients in emergency situations. Successful civil litigation regard- on their behalf. The physician who will care for the patient is best
ing an issue of consent theory against an emergency physician qualified to discuss the treatment and its risks and benefits with
acting reasonably, and consistent with the appropriate standard of the patient. Nurses as well as physicians not skilled in performing
care, is extremely rare.82 An emergency physician is much more the procedure cannot obtain valid informed consent.89
likely to be sued for failure to treat while waiting for consent than The physician should write or dictate into the patient’s medical
for providing reasonable treatment without consent. record a summary of the discussion held with the patient and
family concerning the elements of informed consent. Particular
Federal versus State Laws attention should be made to documentation of those material
risks discussed with the patient before the patient’s consent is
Both federal laws (e.g., EMTALA) and state laws govern consent.5,39 obtained.
EMTALA comes into play primarily in the evaluation of minors Consent is a process, not a signature. A written, signed, separate
and with patient refusal of an examination, stabilizing treatment, consent form is not legally required under the doctrine of informed
or transfer. State consent laws vary widely and may be set by stat- consent; however, hospitals may require emergency physicians to
utes or case law, or both. The concepts discussed next are generally complete standardized consent forms and to obtain the patient’s
applicable to emergency medical care, but all emergency physi- signature. The signed form is not a substitute for the consent
cians should learn the consent laws specific to their own state. process. It cannot replace the exchange of information that occurs
between the physician and the patient and family, the answering Furthermore, the hospital should not delay this initial screening
of questions, and the ultimate agreement of the patient to undergo evaluation to wait for consent from a parent or legal guardian (and
the medical or surgical intervention.82 nurse triage does not qualify as the required medical screening, no
A signed, written consent form, however, does constitute some matter how nonurgent the child’s condition appears to the nurse).
evidence of a valid consent. In some states, a signed consent form If an EMC is discovered through the initial screening examina-
is presumed to represent valid consent unless that presumption is tion,5,39 the physician may treat the emergency under either state
rebutted by proof that the consent was obtained by fraud, deceit, or federal legal theories. First, under state laws, the standard emer-
or misrepresentation of material fact.90 gency exception doctrine applies. State laws allow physicians to
proceed with treatment whenever an emergency exists. Although
Implied Consent in Emergency Situations no uniform legal definition of emergency exists among the states,
state laws tend to define an emergency liberally, such as “any threat
If an unconscious or incapacitated patient cannot express consent, to the minor’s life or health.” The courts almost always affirm a
the law will assume the patient consented to treatment for the physician’s judgment about an emergency condition and rarely
emergency situation. Implied legal consent is premised on two question the treatment given to a minor without parental consent.93
principles: (1) duty to obtain informed consent is excused if death Preserving life, preventing permanent disability, alleviating pain
or irreparable harm may result if the physician delays providing and suffering, and avoiding eventual harm have been used as
treatment, and (2) the law presumes that a reasonable, competent, guidelines for emergency treatment without consent.93 Any minor
lucid adult would consent to lifesaving treatment.91 presenting to the ED should be triaged and provided with an MSE
The emergency treatment allowed is limited to the circum- to determine whether an EMC exists.
stances of the emergency, however, and only treatment required Under EMTALA, if an EMC is present, the hospital and physi-
to resolve the emergency should be undertaken without consent. cians are required to provide “stabilizing treatment.”39 Federal law
Similarly, the emergency condition must require immediate also gives the physician broad discretion to decide what treatment
medical attention, with insufficient time to inform the patient or should be performed and in what time frame it should be accom-
to seek consent from another person. plished. The stabilization requirement includes transfer as neces-
Courts differ on the definition of a “true emergency,” and sary to an institution capable of handling the minor’s emergency
whether the emergency exception applies in a given case depends condition. Thus, under federal law, a minor could be examined,
on the definition accepted by the court and the application of that stabilized, or transferred to another institution without consent
definition to the particular set of facts. Fortunately, the courts ever being obtained from the family; in this instance, the care
generally will stretch the doctrine to protect physicians who act in would be not only in the patient’s best interest but also legally
good faith in caring for a patient with a perceived emergency mandated.5,39
condition.92 This is one situation in which use of the when-in- In general, if the MSE does not reveal an emergency condition,
doubt rule and documentation of the physician’s concerns will physicians need to obtain proper consent from the minor’s parents
weigh greatly in the court’s determination of whether the physi- or legal guardian. However, state laws and the courts have applied
cian acted appropriately without obtaining informed consent. a number of exceptions to allow minors to seek treatment on their
Physicians can further protect themselves by obtaining a second own without parental consent. These exceptions vary widely from
opinion that a true emergency exists. state to state, and most are applied through an analysis of facts
and circumstances on a case-by-case basis by the courts. Under
the mature minor exception, minors who possess an understand-
Minors ing and appreciation of the nature and consequences of the treat-
Minors Accompanied by a Parent or Legal Guardian ment and appear competent to make their own decisions are
allowed to consent, despite not having reached the defined age
Parents and legal guardians have the right to consent on behalf of for maturity (usually 18 years).94 A mature minor usually is 15 to
their minor children. However, they need to act reasonably and in 17 years old.
the best interests of their children. If they do not, their right to The emancipated minor provides another exception to the need
consent can be abrogated by the state or the courts. Parents are for parental consent. If the minor is living independently, is self-
not allowed to refuse treatment for a child with a life-threatening supporting, or is in the U.S. Armed Forces, the courts may recog-
emergency condition. The management of children with emer- nize the minor as emancipated and able to consent on his or her
gency conditions whose parents refuse to give their consent to own behalf. Again, this is determined by the courts on a case-by-
treatment is discussed later. case basis.95 In addition, most states have statutory reasons, such
Either natural parent of the minor child may provide legally as sexually transmitted diseases, pregnancy, or domestic violence
binding consent. If one parent agrees with a proposed treatment injuries, that allow minors to seek care without the consent of
and the other does not, consent may be accepted from the agreeing their parents.96
parent. Even if separated or divorced, either parent may give
consent unless one parent has been judicially granted sole legal Incompetent or Incapacitated Adults
custody of the child, in which case only the custodial parent may
consent. The child’s biologic father, even if never married to the If a person has been declared legally incompetent by a court,
mother, also may consent for his child. consent must be obtained from the person’s court-appointed legal
guardian. In addition, people may appoint legal surrogates to
Unaccompanied Minors make legal decisions for them should they become incompetent.
State-sanctioned living wills, advance directives, and durable
EMTALA mandates that all persons presenting to an ED request- medical power of attorney documents all transfer consent powers
ing care be examined to determine whether an emergency condi- from a person who becomes incompetent to a legally appointed
tion exists.5 Because EMTALA is federal law, it takes precedence surrogate.97
over all state consent laws regarding the initial evaluation of a If an incompetent adult has neither a legal guardian nor an
minor child. In essence, the child’s mere presence at an ED request- appointed surrogate, physicians typically look to the patient’s
ing examination or treatment constitutes legal consent to exami- family for consent to treatment. However, consent to treatment by
nation of the child to determine whether an EMC is present. a family member, even the patient’s spouse, generally is not
acceptable under American law unless the spouse or family by the prosecutor for use against the driver in a driving-while-
member has been appointed legal guardian by a court of proper intoxicated prosecution or other criminal charges.23,105
jurisdiction.98 Marriage does not confer one spouse the legal The state “legal limit” of intoxication is not a measure of a
capacity to consent to medical treatment for the other spouse, patient’s competence. The legal level for driving has little if any-
even when the ill or injured spouse is incompetent. thing to do with the capacity to make informed medical decisions.
Some states recognized this problem and enacted “family However, this distinction is sometimes difficult for judges and
consent statutes,” which outline a hierarchy of family members juries to understand, and the emergency physician can actually use
who can legally provide consent when the family member becomes the blood level to support a judgment that the patient was not
incapacitated.99 However, even when families have no legal stand- competent to make informed decisions in a particular instance. At
ing to consent for the incompetent relative, it is wise to involve other times, it is better not to have a “number,” so that the only
family in the medical decision-making process. Communication relevant criterion for determination of the patient’s competence
and concern for the family will avoid misunderstandings, surprise, is the physician’s judgment.103
and anger, which are the primary sources of litigation. Fortunately,
if an emergency exists, no authorization from family is necessary Patients Given Pain Medications
to provide such reasonable care as is necessary to correct the life-
threatening situation. Once the emergency is resolved, consent Obtaining informed consent from patients treated with pain med-
should be obtained from someone authorized to act on behalf of ications before a procedure is a common issue. As with alcohol
the incompetent patient. If there is no appointed legal guardian intoxication, the mere fact that a patient has been given narcotic
or surrogate and no state statute on family consent, the physician analgesia does not render that patient incapable of consenting
will need to seek consent authorization from the courts. The to surgical procedures. Plaintiff attorneys can always argue “the
courts may appoint a guardian at that time, generally a family patient was too snowed with drugs to give consent”; on the other
member, or after judicial review of the issues, the court itself may hand, they can equally argue that the patient was “in too much
grant consent on behalf of the incapacitated person. pain to consent and would have agreed to anything to stop the
pain.” Accordingly, when consent is sought from a patient who has
received pain medication, the patient’s ability to understand the
Other Special Populations of Patients ramifications pertaining to the procedure should be assessed and
Prisoners taken into consideration, involving the family in the process
if possible. The physician should document that the patient’s
Competent prisoners generally do not surrender the right to premedicated state was considered in judging the patient’s
consent by virtue of being incarcerated. However, a state or court competence to make an informed decision.
may compel treatment on the basis of interests perceived as para-
mount to the prisoner’s interests.100 The elements usually neces-
sary to treat self-inflicted injuries over the objection of the REFUSAL OF MEDICAL CARE
competent prisoner include the following101: Informed Refusal
The injury to the prisoner was willful and intentionally
self-inflicted. The corollary to a patient’s right to give informed consent is the
The proposed treatment is necessary to preserve or to restore the patient’s right to refuse medical care, even if such refusal results
health of the prisoner. in death. In Cruzan v Director, Missouri Department of Health, the
The prisoner refuses to give consent. U.S. Supreme Court determined that a competent adult has a
The physician documents the medical indications for treatment constitutionally protected right to refuse medical care.106 However,
in writing in the prisoner’s medical record. that right is not absolute. Under particular circumstances, courts
will consider countervailing compelling state interests, such as
Alcohol-Intoxicated Patients preventing suicide, preserving life, and protecting innocent
third parties.
Alcohol intoxication itself may not render a patient incompetent Physicians who honor a competent patient’s decision to refuse
to give informed consent.102 The emergency physician should treatment are not liable for any resulting bad outcome.107 In fact,
evaluate each situation individually to determine whether the physicians are more likely to be successfully sued for treating
patient is incapacitated by alcohol to the extent that he or she is patients over their objections or without their consent, even when
no longer able to understand the proposed treatment, risks and the treatment is lifesaving.
benefits, and rational alternatives. In essence, the general rules for When a competent adult refuses indicated medical interven-
determination of whether a patient is competent to make informed tion, it often is because of fear, anger, misunderstanding, or some
decisions cannot be disregarded just because the person is intoxi- other failure in communication in the physician-patient relation-
cated with alcohol. However, the when-in-doubt rule is particu- ship. Before allowing a patient to refuse care, the physician should
larly applicable in these cases because alcohol intoxication often is try to determine and resolve the underlying reasons behind the
associated with occult serious illness or injury. patient’s refusal.
Alcohol intoxication, particularly if it is documented by a mea- The attending physician must always be involved when a patient
sured blood alcohol concentration (BAC), is strongly suggestive to refuses medical care or expresses the intent to leave against medical
courts and juries of impaired mental status, even though health advice.108,109
care workers recognize that many alcoholics are entirely rational As with consent, refusal of medical care is a process, not a sig-
and competent at fairly high BACs.23,103,104 Conversely, low BACs nature. It must be an informed refusal; merely having the patient
do not guarantee competence because other processes (e.g., hypo- sign an “informed consent to refuse examination, treatment, or
glycemia, blood loss, impairment from other illicit substances) transfer” form or an “against medical advice” form is not suffi-
may cause the patient to be incompetent. Thus the patient’s clini- cient. There are four essential components of the refusal process.
cal capacity is more important than the specific level of alcohol in Determining Competence. The physician must determine that
determining competence. the patient is competent to make decisions. Normal findings on
One advantage of obtaining a BAC is that some states allow blood the mental status examination without evidence of diminished
samples drawn solely for medical purposes to be subpoenaed later mental capacity from closed head injury, severe pain, hypoxia,
hypotension, alcohol intoxication, mental retardation, or mind- concerned about patients leaving without being screened. Since
altering substances constitute good evidence of competency. every patient that presents seeking emergency services is entitled
Noting the patient’s rationale for refusing care, even if it is not to a screening examination, a hospital could violate the patient
reasonable, provides additional evidence of competency.110 antidumping statute if it routinely keeps patients waiting so long
Ensuring an Informed Decision. To be legally binding, a decision that they leave without being seen, particularly if the hospital does
to refuse a test or treatment or to sign out against medical advice not attempt to determine and document why individual patients
must be an informed decision. The physician should explain the are leaving, and reiterate to them that the hospital is prepared to
severity of the patient’s condition, the potential complications, provide a medical screening if they stay.”9,25
and the alternative treatments available. The physician should use Hospitals need to have a policy and practice for LWBS patients
terms that the patient can understand and provide the patient an that adequately document pertinent findings and protect the hos-
opportunity to ask questions. The patient should understand that pital from liability. In most hospitals, the staff calls the patient and
the risks of refusing care include the possibility of permanent dis- checks the waiting area at least three times before declaring that
ability and death. Ideally, a witness should be present when the the patient has left the department. These serial checks, with time
physician informs the patient and any family members.111 of day performed, should be documented on the patient’s record,
Involving Others. The patient’s family, friends, and personal and once it is evident that the patient is no longer present, the
physician should be involved whenever possible. These persons record should be reviewed on a timely basis by the physician on
should hear the same message as that conveyed to the patient duty. If the reviewing physician discovers something of concern
because they may be able to persuade the patient to accept the regarding the patient’s chief complaint or triage data, the person
recommended therapy. If the patient expressly forbids the emer- can be contacted and encouraged to return to the ED. The registra-
gency physician to speak with others, as is the patient’s legal tion papers, triage records, nursing documentation at triage, and
right, this should be explained to them and documented in the physician’s review and documentation of that review should be
medical record. kept in the patient’s permanent record. These records should be
Documenting Appropriately. Appropriate documentation of the retained for a minimum of 5 years to protect the institution should
refusal process is necessary to protect the physician and hospital the interaction ever be the subject of a retrospective EMTALA
from inappropriate litigation. The patient should be asked to sign investigation or litigation on behalf of the LWBS patient.2,9
the refusal form.2,9,112 (Fig. 2 shows a sample AMA form.)
If the patient refuses to sign the form, that fact should be docu- Leaving against Medical Advice
mented and the form signed by a hospital representative who
witnessed the patient’s refusal. The medical record should reflect If hospital personnel are aware that a patient intends to leave
the patient’s mental status examination findings and competency before completion of the MSE or stabilizing treatment for what-
to make informed decisions, the risks and benefits of recom- ever reason (e.g., tired of waiting, changes mind, concerned about
mended treatments, the available alternatives, and the participat- cost of care), the hospital should handle and document the inter-
ing family or friends. Documentation of the patient’s rationale for action carefully to avoid EMTALA or medicolegal liability2,9,115-117
refusing treatment, that the patient was treated to the extent (Box 4). In each case, the following steps should be taken:
allowed by the patient, and that the patient was invited to return 1. Inform the patient of the hospital’s obligation under the law.
for care at any time offers added protection.112 The ED staff should inform patients of their rights under the
EMTALA to receive medical screening and any necessary
Federal Rules stabilizing treatment from the hospital, regardless of their
ability to pay for that service.
EMTALA requires hospitals to take and to document specific 2. Determine the patient’s competence. Only legally competent
actions when patients refuse medical screening, treatment and persons can refuse necessary medical care. For example,
stabilization, or transfer. The government and the federal courts alcohol-intoxicated patients who present to the hospital with
presume that the patient requested emergency care and place the medical complaints cannot be allowed to leave the hospital
burden of proof on the hospital to demonstrate that the patient without examination and treatment until it is determined
voluntarily refused care.2,9,113 that they are legally competent to make such a decision.
There are essentially two scenarios in which patients leave the 3. Explain the risks and the benefits to the patient. For patients to
ED after refusing examination or treatment. First, some patients make an informed consent to voluntarily withdraw their
simply pick up and leave, without the knowledge of anyone affili- request for services, they need to understand the benefits and
ated with the hospital. If the patient’s departure is witnessed, the the risks of withdrawal before refusing examination and
patient does not respond to requests to return for the examination treatment. These risks and benefits should be specific to the
or to discuss the issues with the hospital staff. These patients are patient’s chief complaint.
generally referred to as those who “leave without being seen” 4. Secure the patient’s written informed consent to refuse care. The
(LWBS) or “leave before examination.” In the second scenario, the hospital should take all reasonable steps to secure the
hospital personnel are aware that the patient is about to leave and patient’s written and informed consent (i.e., obtain a
have an opportunity to interact before the patient leaves. Hospitals signature) to refuse medical care. A standard form should be
generally refer to this as “leaving against medical advice.” The used that contains space for documentation of the patient’s
Office of the Inspector General (OIG) and CMS refer to both of competence, the risks and benefits discussed, and whether the
these scenarios as “voluntary withdrawal” of the patient’s request patient’s family was available to be involved in the
for evaluation or treatment.2,9,114 discussions. If the patient refuses to sign the form and simply
walks out after the interaction with the hospital, the person
Leaving without Being Seen who discussed the issues with the patient and witnessed the
patient’s refusal should sign the form and document the
If a patient walks out before the MSE and later has an adverse interaction.
medical result, the burden will be on the hospital to prove that the 5. Offer alternative care within the scope allowed by the patient. It
person left voluntarily and was not denied examination or treat- is outside professional practice standards to respond angrily,
ment by the hospital. The OIG and CMS admonish hospitals to act vindictively, or to punish patients when they decide to
about LWBS patients, stating that “hospitals should be very leave against advice by refusing to provide alternative
INFORMED CONSENT TO REFUSE EXAMINATION, TREATMENT, OR TRANSFER
I understand that the hospital has offered: (Check all that apply).
A. To examine me (the patient) to determine whether I have an emergency medical condition, or
B. To provide medical treatment or to provide stabilizing treatment for my emergency condition, or
C. To provide a medically appropriate transfer to another medical facility.
The hospital and physician have informed me that the benefits that might reasonably be expected from the offered services
are: _________________________________________________________________________________________
and the risks of the offered services are: _________________________________________________________
____________________________________________________________________________________
Physician Documentation
The patient appears competent and capable of understanding risks and benefits.
Alternative treatments discussed with the patient.
Patient’s family involved. Family not available. Patient does not want family involved.
Signature of Physician ________________________________________________________________
Patient or Legally Responsible Person Documentation.
I have declined to have the physician fully explain to me the risks, benefits, and alternatives to leaving the hospital
against medical advice. I knowingly and willingly take and assume the responsibility for all risks incurred.
or
The physician has fully explained to me the risks and benefits but I choose to refuse the offered services. I understand
that my refusal is against medical advice, and that my refusal may result in a worsening of my condition and could pose a
threat to my life, health, and medical safety. I understand that I am welcome to return at any time.
Signature/Patient or Legally Responsible Person ____________________________________________________
Print Name Address _________________________________
City ________________________ State/Zip ______________ Date ______________ Time ___________
Witness/Signature ______________________________ Print Name____________________________________
The patient or person legally responsible for the patient was offered but refused to sign form after explanation of their rights
and the risks and benefits of the services offered.
Hospital representative who witnessed refusal to sign: _________________________________________________________
Date ________________ Time _________________
Informed Consent to Refuse Examination Form [Hospital Addressograph or Sticker Goes Here]
White/Patient Record Yellow/Transfer with Patient Pink/Q/A [Robert A. Bitterman, MD JD - 2013]
Figure 2. Leaving against medical advice (AMA) form: informed consent to refuse examination, treatment, or transfer.
Protocol for Management of AMA Cases Parent or Guardian Who Refuses Care or Blood
BOX 4 in the Emergency Department Transfusions for a Minor
Always involve the emergency physician. In general, state laws support parental control of health issues
Involve the family or the patient’s personal physician whenever affecting their children. However, the state will not allow parents
possible.
to deny children needed emergency medical care under the doc-
Explain the risks and benefits specific to the patient’s condition;
“You could die” alone is too generic. trine of parens patriae, the state’s paternalistic interest in chil-
Explain any alternative treatment options to the patient. dren.118 All states empower emergency physicians to intercede
Ascertain the patient’s capacity to make informed medical under their child abuse and child neglect laws.111,119 When a
decisions: “When in doubt, don’t let ‘em out!” child’s injuries are potentially life-threatening, the emergency
Have the patient and at least one witness sign the AMA form. physician can take custody of the child under the child abuse
If the patient refuses to sign the AMA form, a member of the laws and provide indicated treatment, including blood transfu-
hospital staff should sign the form stating that the patient sions. In deciding whether to act, the when-in-doubt rule defi-
refused to sign the form. nitely applies, and all jurisdictions statutorily protect physicians
Always still provide the best possible treatment within the scope from criminal and civil liability for acting in good faith to protect
allowed by the patient, including antibiotics and analgesics
when warranted.
children.111,119
Provide appropriate discharge instructions and welcome the The courts have specifically addressed the issue of Jehovah’s
patient to return to the ED at any time if he or she reconsiders Witness parents attempting to refuse emergency blood transfu-
and decides to accept the recommended care. sions for their minor children. All jurisdictions hold that a parent’s
Document discussions with the patient, the risks explained, and right to freedom of religion does not include the right to deny
the patient’s medical decision-making capacity and life-sustaining medical intervention for that person’s children.120
understanding of the ramifications of leaving AMA in the One judge best summarized the feelings of the courts: “Not even
medical record (and in real time, not hours after the patient a parent has unbridled discretion to exercise his or her religious
has left the ED). beliefs when the state’s interest in preserving the health of the
AMA, against medical advice; ED, emergency department. children within its borders weighs in the balance.”121
Some states specifically address the issue of overriding parental
refusal of indicated medical intervention by statute.122 In North
treatments, medications, analgesics, or discharge instructions. Carolina, for example, if the parents refuse to consent to treatment
Patients always get to define the scope of medical services and the delay to obtain a court order would seriously worsen the
that they are willing to accept. Accordingly, an appropriate child’s physical condition or endanger the child’s life, and if a
strategy is to negotiate and cajole them into allowing the best second physician agrees that the procedure is necessary to prevent
possible care under the circumstances that they define. For immediate harm, a physician can render treatment without paren-
example, if a patient with “fight bite” tenosynovitis refuses tal consent. If a second physician cannot be contacted before treat-
hospital admission, operative intervention, and intravenous ment is initiated, the physician may still perform the indicated
antibiotics and analgesia, the next best option can be offered, therapeutic intervention without parental consent.123
such as thorough cleansing in the ED, intramuscular Conversely, courts refuse to rule against the parents’ wishes
antibiotics, and oral narcotics, with recheck in 24 hours. when the child’s medical condition is not serious or life-
Failing that, cleaning in the home sink, oral antibiotics, threatening. If there is no life threat or potential for serious
acetaminophen, and follow-up with the patient’s primary impairment, the parents’ refusal should be respected. Parental
care physician can be recommended. refusal of indicated nonemergency medical treatment is usually
Negotiation aims for the best alternative that the patient is statutorily defined as “child neglect,” which is not legally sufficient
willing to accept, even if that means providing less than to take custody of the child. Child neglect should still be reported
optimal treatment. Pain medications should never be to the appropriate authorities; treatment for the child can then be
withheld because the patient will not accept the obtained under a court order.119
recommended treatment plan. This “strategy” is cruel,
further alienates the patient, and serves no useful purpose.
Moreover, patients should always be invited to return to the Jehovah’s Witnesses
ED (or encouraged to see their private physician) if they Adult Blood Transfusions
change their mind and become willing to accept the
recommended treatment. A patient’s refusal of the more The approximately one million Jehovah’s Witnesses in the United
appropriate treatments as well as communication of offers to States believe that blood transfusion destroys their relationship
provide treatment within the circumstances proscribed by the with God and forfeits their chance for eternal life; accepting
patient should be delineated. transfusion is not a minor infraction of their faith.124,125 They do
6. Document the interaction in the patient’s hospital record. not accept whole blood, packed cells, platelets, white cells, plasma,
The medical record, preferably a dictated and transcribed or autotransfusion of stored blood. Most will allow the use of
medical record, should accurately relate the interaction crystalloids, albumin, hemophiliac preparations, immunoglobu-
between the hospital and the individual refusing the MSE. lins, dialysis, and heart-lung machines.124-126
The record reflects the hospital’s conformity to the law Jehovah’s Witnesses and the issue of blood transfusion present
and the patient’s leaving of his or her own accord— difficult medicolegal issues in the ED.127 State courts may have
specifically, the risks of refusing the examination and the widely divergent views on the issue, and no clear-cut answers exist.
reasons for the patient’s refusal. Documentation of the However, the current trend is granting patients greater autonomy
reasons for refusal provides evidence that the hospital did not to refuse blood, even when the state asserts compelling interests
economically coerce or in any way financially deter the to override a person’s refusal.
patient from remaining for the MSE. The chart should clearly General principles of consent and the when-in-doubt rule
indicate that the patient did not leave the department on the apply, but hospitals and medical staff also should develop policies
basis of a “suggestion” by the hospital concerning any and procedures in advance to resolve potential conflicts with the
financial issues. Jehovah’s Witness patients in the community; coordinate the
management of each case with hospital legal counsel, in contact to prevent the spread of communicable diseases, to protect its
with a judge who can issue court orders when appropriate, if time citizens from disease and violence, and to prosecute criminal
allows; have other physician consultants write notes of agreement acts. In each instance, the state statute overrides patients’ rights
regarding the need to give blood; and communicate effectively of confidentiality. The statutes typically also provide physicians
with patients and family, in advance when possible. with immunity from civil liability or criminal prosecution if the
reporting is done in good faith.137
Competent Adult All EDs should maintain up-to-date lists of diseases and inci-
dents that must be reported to the state. The process and respon-
The courts have found that “the competent adult has the right to sibility for appropriate reporting should be clearly articulated in
refuse a transfusion regardless of whether his refusal to do so arises departmental policy.
from fear of adverse reaction, religious belief, recalcitrance, or
cost.”128 This applies “even though we may consider a patient’s Communicable Diseases
beliefs unwise, foolish, or ridiculous.”129 However, even this right
is not absolute. If the patient’s refusal conflicts with compelling Typical communicable diseases that must be reported include
state interests such as the preservation of life, the prevention of those of epidemiologic concern, such as sexually transmitted
suicide, or the protection of innocent third parties, the courts may diseases (including gonorrhea, syphilis, chlamydial infection, non-
order transfusions despite the person’s objections.127 Previously, gonococcal urethritis, and human immunodeficiency virus infec-
typical scenarios in which the courts overrode a competent per- tion) and highly communicable illnesses (such as tuberculosis,
son’s refusal included cases involving pregnant women, to protect hepatitis, pertussis, and recently methicillin-resistant Staphylococ-
the life of the fetus; mothers of young children, to promote the cus aureus [MRSA] infection). Emergency physicians also have a
general welfare of the children; and a sole supporting father or duty to warn patients with communicable diseases against activi-
mother, to prevent offspring from becoming wards of the state.130 ties that may spread the disease and should instruct them to
Some courts, however, have significantly restricted the hospital’s inform contacts to seek evaluation and treatment. Physicians
or state’s ability to assert compelling interests challenging a com- should adequately document such instructions in the medical
petent person’s right of self-determination.131 record to prevent liability to third parties for failure to warn
appropriately.
Unconscious or Medically Incompetent Adult
Violent Acts
In an emergency, if the Jehovah’s Witness’s beliefs are unknown,
physicians may transfuse the patient because consent will be Wounds, injuries, and illness resulting from criminal acts of vio-
implied under the emergency doctrine. It is irrelevant if the lence must be reported to state agencies.138 Bullet wounds, powder
spouse, mother, or other family members adamantly refuse to burns, stab wounds, intentional poisonings, child abuse or neglect,
allow the transfusion for religious reasons. The state’s compelling sexual assaults, spousal abuse, domestic violence, and any suspi-
interest in preserving life outweighs the family’s expression of the cious injuries generally must be reported.
patient’s religious preferences.126
In the past, when a Jehovah’s Witness’s beliefs and transfusion Deaths
preferences were known in advance but the patient was incompe-
tent at the time of the emergency, the courts tended to support All deaths must be reported to state or local authorities. Death
transfusion until the patient became competent and could refuse under certain circumstances also must be reported to the county
transfusion “contemporaneously.”120,132 The modern trend is to medical examiner. Typically these include deaths from violence,
accept objective evidence of the patient’s wishes, for example, a poisoning, accident, suicide, or homicide; any sudden death in
signed card carried by the patient that identifies him or her as a someone in apparently good health or when unattended by a
member of the Jehovah’s Witnesses and sets out the religious objec- physician; any death occurring in a jail, prison, or correctional
tion to blood transfusion. The card may be accepted as adequate institution or in police custody; and any death occurring under
evidence of the patient’s intent, like a form of advanced directive, suspicious, unusual, or unnatural circumstances.139 Fetal deaths
which is binding on hospitals and physicians. In at least six states, also may have to be reported, usually after 20 weeks’ gestation or
if the card is dated and signed before two witnesses, it is statutorily the typical gestational period of possible viability.140
valid.133 Even if the blood refusal card does not conform to a state’s When a death requires a report to the medical examiner, the
advance directive statute, it should be considered strong evidence integrity of the scene and the body should be preserved. ED staff
but not necessarily determinative of the Jehovah’s Witness’s wishes. should disturb the body as little as possible, secure the patient’s
Advance directives are merely a means to express an individual’s belongings and any potential evidentiary materials, and leave in
rights and are not the exclusive means to express those rights place medical interventions such as endotracheal tubes, nasogas-
legally.126,127 Jehovah’s Witnesses increasingly use state statutorily tric tubes, and central or peripheral intravenous lines. The medical
defined advance directive methods to legally express their inten- examiner will determine whether the state will assert authority
tions.134 Emergency physicians should, however, be certain the card over the body, order an autopsy, or release the body to the family.139
or advance directive actually belongs to the patient. In addition, any death that occurs while the patient is “restrained
Of interest, no Jehovah’s Witness has successfully sued a health or in seclusion for behavior management,” when it is reasonable
care provider to recover damages in cases in which blood was to assume that the death is the result of the restraint or seclusion,
withheld on the basis of an apparently valid blood refusal card. must be reported to CMS.141,142 In the ED setting, this typically
Also, “criminal, civil, or professional misconduct liability has never would involve use of restraint or seclusion as a last resort to
been imposed on health care providers for forgoing treatment the address violent behavior presenting a risk to the patient, hospital
patient did not want.”135 staff, or others.
REPORTING REQUIREMENTS Alcohol-Related Motor Vehicle Crashes

All states require hospital EDs to report certain events or illnesses At least six states (Hawaii, Indiana, Illinois, Pennsylvania, Rhode
to local public health authorities.136 The state’s primary intent is Island, and Utah) have mandatory reporting laws governing
143
alcohol-related motor vehicle crashes. Many other states have 24. 68 Federal Register 53221, 53263; 42 CFR 489.24(d)(2) and 489.24(b).
laws permitting but not requiring EDs to report intoxicated drivers 25. 42 CFR 489.24(a).
26. 42 CFR 482.55.
to authorities on the basis of a known BAC.143,144
27. 59 Federal Register 32099, 32113, 32116 (1994).
28. Center for Medicaid and State Operations/Survey and Certification
Animal Bites Group: Revised Final EMTALA Guidelines, Ref: S&C-04-34, May 13,
2004. Tag 406. See also reference 3.
Most states require the reporting of animal bites, particularly dog 29. Correa v Hospital of San Francisco, 63 F3d 1184 (1st Cir 1995).
and cat bites, to the local public health department. The states also 30. 64 Federal Register 36070, 61353, 61359 (1999).
31. 42 CFR 482.13(a)(1).
generally require the reporting of bites by any animals known to
32. CMS State Operations/Survey and Certification Group: On-Call
be potential carriers of rabies, such as bats, raccoons, skunks, foxes, Requirements—EMTALA, Ref: S&C-02-34, June 13, 2002; and
and cattle, to prevent cases of human rabies and to control the Simultaneously On-Call, Ref: S&C-02-35, June 13, 2002.
spread of rabies within the animal community.145 33. Hyams AL, et al: Practice guidelines and malpractice litigation: A
two-way street. Ann Intern Med 1995; 122:450.
34. Brooker v Desert Hospital Corp, 947 F2d 412 (9th Cir 1991).
Substance Abuse 35. Gatewood v Washington Healthcare Corporation, 933 F2d 1037 (DC Cir
1991).
A few states require reporting of substance abuse to local 36. 42 CFR 482.20(3).
authorities.146 37. 2 CRF 413.65(g)(1).
38. 42 CFR 482.24(b).
References 39. 42 USC 1395dd(b).
40. Cherukuri v Shalala, 1999 Fed App 0160P (6th Cir).
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of EMTALA Sanctions in Hospitals Located in Areas Covered by a Public System Change, Issue Brief No.115, November 2007.
Health Emergency, Ref: S&C-08-05, posted 12/07/2007, revised 67. McConnell KJ, et al: The on-call crisis: A statewide assessment of the
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Emergency Medical Treatment

and Active Labor Act and

PERSPECTIVE Emergency Medical Condition

National Emergencies or Disasters patient’s private physician performed an office examination

Laboratory Tests and Radiography Requests Prescriptions

Minor Treatments Preventive Services

II. REASON FOR TRANSFER: Medically Indicated Patient Requested ____________________________________

Physician Name: _________________________________Address ________________________________________________

IV. Mode/Support/Treatment During Transfer As Determined by Physician– (Complete Applicable Items):

VI. ACCOMPANYING DOCUMENTATION– sent via: Patient/Responsible Party Fax Transporter

VII. PATIENT CONSENT TO "MEDICALLY INDICATED" OR "PATIENT REQUEST" TRANSFER:

Follow-up Care Recommended Procedures for

INFORMED CONSENT TO REFUSE EXAMINATION, TREATMENT, OR TRANSFER

A. To examine me (the patient) to determine whether I have an emergency medical condition, or

B. To provide medical treatment or to provide stabilizing treatment for my emergency condition, or

C. To provide a medically appropriate transfer to another medical facility.

and the risks of the offered services are: _________________________________________________________

Alternative treatments discussed with the patient.

Signature of Physician ________________________________________________________________

Patient or Legally Responsible Person Documentation.

Signature/Patient or Legally Responsible Person ____________________________________________________

Print Name Address _________________________________

City ________________________ State/Zip ______________ Date ______________ Time ___________

Witness/Signature ______________________________ Print Name____________________________________

Hospital representative who witnessed refusal to sign: _________________________________________________________

Date ________________ Time _________________

REPORTING REQUIREMENTS Alcohol-Related Motor Vehicle Crashes

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Physician Name: _Address ________________

City ______________ State/Zip Date Time _

Witness/Signature Print Name______

Date Time _