Chapter 24: Rules and Regulations

October 22, 1987, McKinley, Ohio

On Thursday afternoon, all third-year students were excused from their rotation to attend a seminar on the Emergency Medical Treatment and Active Labor Act which had been passed by Congress and signed by President Reagan the previous year. It had taken time for the medical and legal community to figure out what it meant for hospital operations, and having done so, at least preliminarily, the medical school had scheduled a seminar.

“Good afternoon,” Doctor Warren said, coming to the podium. “We have limited time, so I’m going to turn the podium over to Jason Firth, our legal counsel.”

Mr. Firth, who I knew from the proceedings against Melissa Bush, came to the podium.

“Good afternoon,” he said. “I’m here to discuss with you the effect of the Emergency Medical Treatment and Active Labor Act. First, before I begin, nothing covered by the Act criminalizes any medical decisions or actions. It does, on the other hand, provide a private cause of action — what you would call ‘suing someone’ — for any violations. Generally speaking, we believe it would be the hospital held responsible, but until this is sufficiently tested in court, we cannot say that private causes of action cannot be brought against individual physicians.

“Another point, in the same vein, is that this law, like just about every law and every legal question, is not black and white, and has shades of gray, depending on the case, judicial interpretation, jury deliberations, and public policy from CMS — the Centers for Medicare and Medicaid Services, a division of the Department of Health and Human Services. It used to be called the Health Care Financing Administration, but you all certainly simply know it as ‘Medicare’.

“Fundamentally, this law presents a situation where legal considerations overlap with medical principles, and that means I cannot provide you with specific, clear guidelines as to how to follow this law. Each hospital, and each provider of emergency medical services, will have to develop a policy, to which you’ll be required to adhere, and which is certain to be modified as cases make their way through the courts.

“One very important point — until the Secretary of Health and Human Services promulgates rules, it is not clear how the law would be applied, if at all. This has not occurred, and it might be several years before the rules are published. Despite that, I’ve advised both McKinley Medical School and Moore Memorial Hospital to review the provisions of the statute and implement policies, procedures, and training methods that conform to the spirit of the law, as we cannot know the ‘letter of the law’ until the rules and regulations are published.

“There are a few terms which you’ll hear, and which you should know. I already defined CMS for you. The next term is ‘COBRA’, which stands for the Consolidated Omnibus Budget Reconciliation Act of 1986, which is the bill passed by Congress and signed by President Reagan, and which includes the EMTALA — The Emergency Medical Treatment and Active Labor Act. One of the main parts of COBRA, and which is called by that name, is the statutes which control the continuation of medical insurance when employment is terminated.

“Next, a ‘transferring hospital’ is a facility at which a patient is initially seen and evaluated, and whose medical personnel determine should be transferred to another facility. In the case of Moore Memorial Hospital, that almost always means transfer to specialists in Columbus or Cincinnati, but could apply to any patient transferred to any other facility.

“Related, of course, is the receiving hospital, which is, I hope quite obviously, a facility to which a patient is transferred. This would, again, be any medical facility, but in the case of Moore Memorial Hospital, almost always another hospital, though a mental health facility, rehabilitation center, long-term care center, or nearly any other medical facility you can name.

“One important note before I get into the details — the law only applies to medical facilities that provide emergency care and have Medicare provider agreements. Moore Memorial Hospital is a Medicare provider, and most public and private hospitals are. There are very few exceptions, such as facilities operated by the Shriners, so most of you, during your Residency, will either work in, or be affiliated with, a hospital that is governed by the Act.

“Let’s start with the bottom line — the EMTALA is primarily a non-discrimination statute. The main purpose is to ensure that no patient who presents at a covered medical facility with an emergency medical condition and who is unable to pay may be treated differently from patients who are covered by health insurance. It covers all patients, not just Medicare patients, but the federal government has limited ability to dictate policy to public or private hospitals which are licensed by the state, so they use the power of the purse to enforce the regulations, much as they have with the National Mandatory Speed Limit Law and raising the drinking age to twenty-one.

“Non-discrimination is not the sole scope, but it’s the most important one. Many of the provisions, such as ‘anti-dumping’, really won’t apply to Moore Memorial Hospital, as it is the only hospital in the county. That said, those of you who Match at a hospital such as Cook County in Chicago or another major metropolitan area with a mix of public and private hospitals, will certainly encounter situations covered by that aspect of the statute.

“So, what are the requirements? Basically, anyone who presents at the Emergency Department must be provided with a medical screening examination to determine if they are suffering from an emergency medical condition. The law does not specify the requirements and will, to a large extent, rely on medical judgment as to whether the patient is suffering a medical emergency. If they are, they must be treated until they are stable, or are transferred to another facility in accordance with the provisions of the statute.

“There is a special provision for a pregnant woman in active labor who must, for all practical purposes, be admitted to the hospital and must receive medical attention and care until delivery is complete, which would include any immediate after care. She could be transferred during labor, so long as that transfer is in accordance with the statute.

“Until the regulations are actually promulgated, it is up to the hospital to determine the scope and extent of the exam, who performs it, and the order in which patients are seen. We don’t believe the regulations, when published, will interfere with sound medical judgment or force changes to triage, and in the case of Moore Memorial Hospital, should not require any changes, because as a public hospital, all patients are treated regardless of ability to pay.

“So, what constitutes a ‘medical emergency’? Per the statute, it is a ‘medical condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in 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; serious impairment to bodily functions, or serious dysfunction of any bodily organ or part’. That would include being in active labor, which is considered a ‘medical emergency’ under the statute.

“What the statute requires is the patient be stable before being transferred or discharged. That is a medical decision, and all of you will, until such time as you are Attending physicians, rely on the judgments of Attending physicians to make that determination. For a pregnant woman, that means both baby and placenta are delivered, and she’s received appropriate after care, including episiotomy or other necessary procedures. I’ll take questions now; please say your name when you are called on.”

I stood up immediately and Mr. Firth acknowledged me.

“Michael Loucks. What if a patient refuses treatment?”

“Good question, Michael. The statute says that you’ve met your obligation to provide emergency care if you have offered the patient the medical examination and treatment required, informed the patient or their representative of the risks and benefits of the offered examination and treatment, and the patient or their representative refuses to consent to the examination and treatment. My strong suggestion would be to have them sign the ‘Against Medical Advice’ release, and if that is not possible, to have at least two witnesses to their refusal and document it clearly on your charts, and report it immediately to hospital risk management.”

Fran stood up next and when she was called on, gave her name, then asked her question.

“If I understand correctly, doctors are not liable under the statute. Is that certain?”

Mr. Firth smiled, “The only certain things are death and taxes, and a good lawyer would tell you even those aren’t certain. Although I think a clergyman would be in a better position to discuss ‘eternal life’ than an attorney, given who much of the public believes is most lawyer’s employer!”

Everyone laughed.

“The bottom line is,” he continued, “that the statute requires only that physicians respond to an emergency situation when on duty in the Emergency Department, or when assigned as the ‘on-call’ physician. In the general case, this would include the physicians assigned to handle consultations in the Emergency Department. Failing to heed a call for a consult could lead to a physician being sanctioned, and ultimately losing his or her ability to treat Medicare patients. Repeated violations could lead to the hospital being fined and potentially losing their Medicare certification.”

He called on the next student, who stood.

“Jeremy Jones. What happens with a missed diagnosis?”

“That will depend on the courts,” Mr. Firth replied. “Generally speaking, an error in judgment would not trigger the statute, to the best we can determine. That said, a malpractice action could be brought under state law, which was the case before EMTALA. In addition, medical licensing review boards would not lose their discretion to take action for medical errors.”

He called on another student.

“Melanie Roberts. Sometimes patients ask about the cost of treatment and we don’t know. How do we deal with that?”

“It’s my opinion that answering any questions about payment be deferred until after the patient is stabilized. Hospital policy will dictate how you respond, and you should follow that, but my advice is to simply state that the law requires you to examine and treat all emergencies without regard to ability to pay. If they insist, again, follow hospital procedures, but otherwise say that you’ll ask someone from Patient Services to speak to them because you are not involved with billing. And, should the hospital have signs in the Emergency Department about fees, co-pays, or deductibles, they should probably come down immediately.”

He called on the next student.

“Alan Howell. Does this only apply to the ER?”

“That’s an excellent question, and the statute actually covers the hospital campus, and says that anyone who does not present at the Emergency Department is covered only if they request services or if a prudent layman would conclude they needed immediate emergency medical treatment. Please note that it is entirely possible that the statute could require you to treat and admit someone you came across on the sidewalk on your way back to the ER, as it provides for a ‘bubble’ of 250 yards.”

“Excuse me,” Alan said, “but we’re forbidden from providing medical assistance off hospital grounds when we’re on duty. I believe that’s part of the hospital’s insurance.”

Mr. Firth nodded, “A policy which likely will have to be changed, and I would suggest will be changed before you Match for Residency.”

He called on another student.

“Mary Ellison. How does this affect the paramedics and ambulance services?”

“It doesn’t. They are operated under, and governed by, state laws. Ohio has clear regulations on non-discrimination and requirements to transport patients at their request.”

Clarissa stood up, was called on, and gave her name.

“Does this require hospitals to have on-call physicians for every specialty?”

“The short answer is, we have no idea, and won’t until the regulations are published. In the case of Moore Memorial Hospital, I would propose they follow the current guidelines for a Level II trauma center until such time as the Secretary of Health and Human Services publishes the rules and regulations.”

“If I can ask a second question,” she said. “How does this apply to medical students?”

“Congress stated that it did not intend to limit or reduce medical training, and so long as you follow proper procedures for triage and examination, and are supervised by a Resident and Attending, as should always be the case, there is no problem. That said, triage is not a medical examination, and triage needs to be accurate, as the statute appears to impose a strict, absolute liability for providing examination and treatment, and a patient who left because they were not seen in a timely fashion could bring a cause of action under the statute.”

There was quite a bit of murmuring and several muttered swear words.

“I understand why you object to that, and, frankly, I do, too. But that is how the statute reads. There are no exceptions. The only possible defense is the number of patients, BUT triage has to be perfect, which, I’m sure you all know by this point in your training, is nigh on impossible. Look to your Attendings for guidance on this matter.”

Another student stood up.

“Felicity Howard. Does this require hospitals to provide follow-up treatment after discharge?”

“I would say, from reading the statute, that the answer is yes. Someone who has emergency surgery will need sutures removed, or examinations to ensure the surgery was successful. Similarly, a broken bone which has been set would need to be checked and eventually a cast removed. It’s my opinion this obligation falls on the specialist who was called for a consult, not on a doctor in the Emergency Department. I believe if such a patient presents in the Emergency Department, the obligation is only to call for a consult from the appropriate service, unless the patient is experiencing a medical emergency.”

There were no further questions, so we were dismissed, and Clarissa and I headed back to the hospital, while Maryam went home to try to catch some sleep before her shift.

“What do you think?” Clarissa asked. “I mean besides it being boring as hell!”

“It was that,” I chuckled. “And you know what I think about bureaucratic rules. That said, I agree with the law. Nobody should ever be turned away from the Emergency Department because they aren’t able to pay, and that goes double for a woman in labor! But there’s a major hidden benefit.”

“What’s that?”

“A doctor in flagrante delicto could be sued by a patient for not responding to his page!”

“But somebody will cover for him, so not really.”

“Fifteen minutes versus five minutes? And when the Morbidity and Mortality conference asks why the delay? I think it will at least cut down on the ignored pages, and, in fact, make answering those pages for consults mandatory if Moore Memorial Hospital wants to treat Medicare cases, which we really have to, as the only hospital in the county. I think that’s going to change opinions on consults, too. Attendings are going to be far less likely to blow them off after a phone call.”

“The other provisions about transferring patients don’t really seem to apply.”

“I agree, because that would appear to be directed against private hospitals dumping patients on public hospitals. I wonder how long it will take for Medicare to put out the new rules.”

“Years, I’d guess,” Clarissa suggested, “given they haven’t done anything yet, and the law passed last year. I think it’s smart to follow it as best as possible until then, because that’ll make the transition easier. The dinosaurs will do their best to stymie it, of course. God forbid anyone, including the government, tells them what to do!”

“Including wash their hands!” I declared, shaking my head.

October 24, 1987, McKinley, Ohio

“How is Rachel today?” Doctor O’Neill asked when she came into the exam room where I was waiting with Rachel for her checkup on Saturday afternoon.

“She’s fine, I think,” I replied. “She’s sleeping well, eating regularly, and from the fact she needs larger onesies and diapers, gaining weight properly.”

“How often does she wake up overnight?”

“Just once,” I replied. “My friends and I worked hard to get her on a schedule that would make that happen.”

“Anything that concerns you?”

“Other than not believing how much feces a baby generates, no.”

Doctor O’Neil laughed, “Then no bowel problems, obviously.”

“P&G is very happy to charge me around 25¢ for each one!”

“No rashes?”

“None.”

“Then let’s do an exam,” Doctor O’Neill said.

She did, and Rachel largely cooperated, but was unhappy when she was placed naked on a scale. After recording Rachel’s height and weight, Doctor O’Neill handed Rachel to me to put on a diaper.

“Rachel is healthy and developing perfectly in line with the statistical charts. She appears to be happy, though I suspect that’s about to change as she’s due to have her first dose of polio vaccine administered and her first DPT.”

“The first two for polio are injected, if I remember correctly.”

“Three should be IPV, according to the latest guidelines. Two months, four months, and six months; then one dose of OPV when she’s five, as a booster. Only one OPV reduces the tiny risk of contracting polio from the oral vaccine.”

“Why not do all four as IPV?”

“I’m happy to do that, but most parents prefer as few shots as possible.”

“If the IPV is a better choice, then let’s do that.”

“Done. Let me prepare the injections. You’ll need to remove her onesie, as it goes into the anterolateral aspect of her thigh.”

Five minutes later, Rachel cried when Doctor O’Neill injected the polio vaccine, and cried again when the DPT vaccine was injected.

“She may be irritable for a few days,” Doctor O’Neill said.

“Which is different from any other female exactly how?” I asked with a grin.

“If you weren’t wearing that cassock, I’d clock you for that comment!”

“Sorry, Doc. A low-grade fever is possible, too, right?”