Emergency Medical Treatment and Labor Act and Medicolegal Issues

Medical Screening Examination

Any person who comes to an ED requesting examination or treatment for a medical condition must be provided with an appropriate medical screening examination (MSE), regardless of immigration status, insurance status, or ability to pay. The purpose of the MSE is to determine whether the patient has an emergency medical condition (EMC). Mere presence in the ED or on hospital property does not trigger the hospital’s duty to provide an MSE; a request for examination or treatment of a medical condition is also necessary. The request can be made by the patient or by anyone on behalf of the patient. If a person is unable to speak to request care, hospital personnel may infer a request if the behavior suggests a need for examination or treatment. ^,

The Centers for Medicare and Medicaid Services (CMS) deems anyone on hospital property to have “come to the emergency department.” ^, Hospital property consists of the entire main hospital campus, including parking lots, sidewalks, and driveways, and any ambulance owned and operated by the hospital, even if the ambulance is not on hospital grounds. CMS then divides hospital property into dedicated EDs and all other property. A dedicated ED is a place that is held out to the public as providing unscheduled care for persons with EMCs, including typical hospital EDs, labor and delivery units, and psychiatric intake centers. ^, Urgent care centers generally do not have to comply with EMTALA.

CMS exempts on-campus areas that typically do not provide emergency care, such as physicians’ offices, skilled nursing facilities, and nonmedical facilities, and off-campus ambulatory facilities such as medical office buildings and dialysis centers.

Presentations to the hospital’s dedicated ED require only a request for examination or treatment of a medical condition, whether or not an emergency medical condition is present. Presentations to non-ED parts of hospital property, however, require the request to be for an emergency condition before EMTALA applies.

Emergency Medical Condition

EMTALA defines an EMC as acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in (1) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, (2) serious impairment to bodily functions, or (3) serious dysfunction of any bodily organ or part. In the case of a pregnant woman who is having contractions, an EMC is defined as one in which there is inadequate time to effect a safe transfer to another hospital before delivery, or that transfer may pose a threat to the health or safety of the woman or the unborn child.

If the MSE does not reveal an EMC, further care of that patient is not controlled by EMTALA, so the law’s provisions governing stabilizing treatment, transfer of the patient, or involvement of on-call physicians cease to apply. ED managers should ensure that there is a process in place for documentation of the completion of the MSE on every ED medical record including the presence or absence of an EMC.

Patients Brought by Emergency Medical Services to the Emergency Department

CMS deems a hospital’s EMTALA obligation to begin the moment the patient “comes to the ED” and a request is made on behalf of the patient for examination or treatment of a medical condition, not when the hospital “accepts” the patient. Sometimes, such as when there is an influx of multiple trauma victims, it is reasonable for the hospital to ask the EMS provider to stay with the patient until such time as ED staff becomes available to care for that person. However, CMS requires that “even if a hospital cannot immediately provide an MSE, it must still triage the individual’s condition immediately upon arrival to ensure that an emergent intervention is not required and that the EMS provider staff can appropriately monitor the individual’s condition.”

National Emergencies or Disasters

The Secretary of Health and Human Services can exempt hospitals from EMTALA during times of national or local disasters or terrorist acts, bioterrorist events, or pandemic infectious disease. ^, EMTALA still applies to individuals potentially exposed to Ebola virus, COVID-19, or other highly contagious diseases who present to the hospital’s ED.

Sexual Assault Cases

A person coming to the ED solely for the collection of evidence for a criminal investigation is not requesting examination or treatment for a medical condition, so no MSE is required. However, if the person complains of pain or injury or wants pregnancy or sexually transmitted disease prophylaxis, that person is requesting examination or treatment for a medical condition and must be provided with an MSE.

Police-Requested Blood Alcohol Tests

When a police officer brings a patient to the ED requesting a blood alcohol test, an MSE should be performed to determine if a potentially serious cause of abnormal mental status exists and normal patient consent provisions apply. A patient who is deemed capable of decision making may refuse the MSE and request that only the blood be drawn. The refusal of the MSE is documented, along with the patient’s decision-making ability, as for any other refusal of treatment or evaluation. If the patient is too intoxicated to make medical decisions, release from the ED should be delayed until the patient is capable of rational decision making. A physician or advanced practice provider should assess and document a patient’s competence.

Health Care Providers Qualified to Perform the Medical Screening Examination

CMS regulations require that the screening examination be done by “qualified medical personnel” and that the hospital’s governing body formally designate, in writing, who is a qualified person to perform medical screening on behalf of the hospital. Typically, physicians and nurse practitioners (NPs) or “physician assistants (PAs) working independently or under the direction of an emergency physician” are designated as such. Triage by a nurse does not constitute an MSE, even for obvious nonemergent conditions. ^,

Ancillary Services as Part of the Medical Screening Examination

The law requires hospitals to provide the screening examination “within the capabilities of the hospital’s emergency department, including ancillary services routinely available to the ED.” Accordingly, the scope of an MSE may range from a brief history and physical examination to an extensive evaluation including advanced imaging or procedures, such as a lumbar puncture. For example, if it takes a complete neurologic examination, CT scan, or lumbar puncture to decide whether a headache patient has a subarachnoid hemorrhage, then those procedures are considered part of the MSE. The hospital is obligated to use only the resources, such as ED ultrasound, ordinarily available to its ED. This includes consultation, such as with an on-call surgeon, when needed to determine whether an EMC is present. If a rural hospital only has mobile magnetic resonance imaging (MRI) capability once per week, it is not required to provide MRI services the other 6 days per week to the ED.

Policies, Procedures, and Practice Guidelines

Each hospital determines its own standard screening policies and procedures. Hospital standards are individualized depending on ED and ancillary capabilities. A hospital satisfies the requirements of EMTALA if it conducts standard screening procedures, uniformly, for all patients with similar complaints and circumstances.

Once hospitals define their own standard screening process, they will be held to that standard. For example, if a hospital’s screening policy states that all patients will be triaged within 10 minutes, any triage carried out at 15 or 20 minutes after arrival constitutes a violation of the law because the hospital did not follow its own policy.

Registration Process, Collections or Insurance Information, and Authorization

CMS allows hospitals to conduct reasonable registration procedures in the ED, including collection of insurance data at the time of registration, as long as the process does not delay the MSE. ^, A reasonable registration process may obtain demographic data and the name of the patient’s physician and determine whether the patient is insured and the type of insurance. During the registration process, the patient can sign the hospital’s usual “informed consent to be examined” form and a routine form that holds the patient financially accountable for any charges not covered by the patient’s insurance carrier. Delaying a necessary examination because the registration clerks are collecting insurance information probably is a violation.

Hospitals are not permitted to use unreasonable registration processes to coerce patients into leaving before they receive their federally guaranteed MSE. ^, Collection of co-payments, down payments, advanced beneficiary notifications, or signatures on managed care financial forms are prohibited until after the MSE is completed and stabilizing treatment has been initiated. Hospitals should also ensure that staff behavior does not create a hostile environment or constructive denial of the MSE.

CMS explicitly bans prior authorization for managed care plans before completion of the MSE and commencement of stabilizing treatment. Hospitals may obtain authorization for payment from insurance entities only concurrently with stabilization of the patient. ^,

Regardless of insurance or social status, all patients should be processed in the same manner. In addition, the triage team, emergency clinician and nursing staff, and all clinical personnel should be blinded to the patient’s insurance status throughout the initial screening and stabilizing care. This removes insurance status as an issue should there later be a claim that the staff was motivated in some way by financial class. After the MSE and initiation of stabilizing treatment, insurance status and ability to pay can be considered in determining the patient’s future care, such as hospital admission, transfer, or discharge and follow-up.

Stabilization Requirements

The screening section of EMTALA mandates the hospital to provide only those services within the capability of the ED , including ancillary services routinely available to that department. The stabilization section, however, requires the level of services within the capabilities of staff and facilities available at the hospital.

Two elements must be present to trigger EMTALA’s stabilization requirement: (1) the patient must have an EMC, as defined by law, and (2) the hospital must determine that an EMC exists. That an EMC exists is not sufficient to invoke the duty to stabilize; the hospital also must have actual knowledge that the EMC exists. Actual knowledge is a legal term that means the examining emergency clinician subjectively determined that an EMC existed. Whether the physician’s judgment was negligent, or even grossly negligent, is irrelevant under EMTALA. The subjective perception of the examining emergency clinician controls whether EMTALA’s stabilization requirement is triggered.

Once the hospital determines that an individual has an EMC, EMTALA requires the hospital either to stabilize the EMC or, if it lacks the capability to stabilize the patient, to transfer the patient to another medical facility that can provide the necessary stabilizing treatment. A sample form for use in documenting such transfers and patient consent to transfer is shown in Figure e7.1 .

The treating emergency clinician needs to decide whether a patient’s EMC is stable or unstable. If two clinicians disagree about whether the patient is stable but only one of the clinicians is at the bedside caring for the patient, the on-site clinician should make the decision. If an outside physician wants to overrule the determination of the on-site clinician, he or she must come to the hospital and personally examine the patient.

EMTALA defines the term stabilized as follows: “no material deterioration in the [emergency] condition is likely, within reasonable medical probability, to result from or occur during the transfer of the individual from a facility.” For a pregnant woman having contractions who has an EMC, stabilized means that delivery (including the placenta) has occurred.

The question of stabilization typically arises only when the patient deteriorates during or after the transfer and experiences an adverse medical result. It is likely to appear, particularly in hindsight, that the patient was not completely stabilized before transfer. A plaintiff need not show improper motive for a transfer to prevail on a failure-to-stabilize claim under EMTALA, merely that the patient was not properly stabilized before the transfer.

When and if the patient is stabilized has significant ramifications for hospitals and physicians, because once patients are stabilized, EMTALA no longer applies. ^, After stabilization, hospitals are free to refuse to provide further treatment or to transfer stabilized patients for purely financial reasons. On-call clinicians can refuse to treat or admit stable patients or insist that stable patients be transferred owing to their lack of or type of insurance. An MCO can refuse further payment to the hospital and request that the stabilized patient be transferred to one of its contracting facilities. Other federal, state, or local standards may govern further treatment or transfer of ED patients. For example, state laws often prohibit hospitals from transferring patients for any reason except that they are incapable of handling the patient’s medical problem.

Disposition Issues Under Emergency Medical Treatment and Labor Act