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Here are several common scenarios involving EMTALA violations and on-call consultants, with tips for managing each:
1. The consultant asks emergency department staff to send the patient to his or her office. "The physician contacts the consultant, and they say, That’s no big deal, send them to the office tomorrow,’" says Stephen Frew, a Rockford, IL-based health care attorney and consultant. "Sending the patient to the office for continued evaluation or acute definitive care is expressly forbidden. That triggers a violation and all three parties — the hospital, ED physician, and on-call physician-are in trouble," says Frew.
Other problems may be associated with this office referral request. "It is not uncommon for the patient to arrive in this setting only to be told that they cannot be treated unless they are able to pay a substantial part of the bill up front," notes Larry Mellick, MD, FAAP, FACEP, chair and professor of emergency medicine at the Medical College of Georgia in Augusta. This is an EMTALA violation because payment cannot be discussed before the patient receives a medical screening exam.
2. A physician says he will come to the ED when he’s done with office hours. That may mean he won’t arrive for eight hours, which is unacceptable, says Frew. "HCFA requires that the medical staff bylaws include a definition of specific response times in numbers, which is typically 30 minutes, not general statements like reasonable length of time.’"
So if the on-call physician responds in anything beyond that time frame, it’s considered failure to respond in a timely fashion. "That will result in a citation against the hospital and the on-call physician," says Frew.
3. The physician responds, "Admit the patient and I’ll come over and see them later." "Once the request has been made to come in, the consultant has to come in within a reasonably accepted time frame," says Frew. "Often they may defer it late in the day, or the following day, which will result in problems."
A Missouri hospital was cited for a violation when the on-call physician didn’t come in, despite repeated calls about an admitted patient having increasing pain, Frew reports. "Several hours later, the patient died of peritonitis, and it was determined that the physician failed to respond in a timely fashion."
4. The on-call physician asks about the means or source of payment, and then declines. "This situation can pop up sporadically in a residency training setting and seems to be part of the ongoing educational process for consultants," says Mellick. This is one of the most common educational opportunities for introducing EMTALA obligations to consultants, he adds.
5. The physician is reluctant to see a former patient who has become dissociated from the consultant’s practice. This scenario is a common question brought up by medical staff members, says Frew. "The consultant may become upset when they are required to see that patient. The physician may arrange for somebody else to cover that patient, but if you can’t do that, it is the consultant’s responsibility [to see the patient] under EMTALA," he stresses
6.The hospital calls a physician’s office, and the secretary says the physician is too busy to come to the phone, delaying the message for an extended period. "HCFA requires that the nursing staff [in the ED] log the time of the call and the physician’s response," says Frew. "So time is running on that physician even though he or she isn’t potentially aware of it. This comes down to an office management issue for those physicians."
7. The on-call physician asks for tests to be done and reviewed by internal medicine before they come to the ED. "Turfing off responsibility is not allowed. The consultant can’t say, if internal medicine doesn’t find anything, then I’ll come in.’ They still have to respond within the time period," says Frew.
8. After hearing a description of the patient’s condition, the consultant says the patient’s condition is too severe, and needs to be transferred to another facility. "That came into play in a recent citation," Frew recalls. "HCFA determined that the only reason the consultant felt that way, was because it was two in the morning. They looked at the physicians’ other activities and concluded that he handled other equally serious cases without transferring the patient."