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There’s no question that Emergency Medical Treatment and Active Labor Act (EMTALA) regulations permit medical screening examinations (MSEs) by nonphysicians, says Jonathan D. Lawrence, MD, JD, ED physician and medical staff risk management liaison at St. Mary Medical Center in Long Beach, CA. "The use of nurse practitioners and physician’s assistants saves tremendous time in a busy ED," he acknowledges. But, Lawrence adds, the real question you should be asking is, "Is it worth it?"
"Since nearly every emergency medical condition’ discovered during an MSE is going to have to be seen by a physician anyway, what is the advantage of nonphysicians doing MSEs, unless the institution’s policy is to turn away patients with non-emergency conditions for care elsewhere?" asks Lawrence.
The practice should not be done in the ED, except in limited circumstances such as a fast track staffed by a physician’s assistant (PA) or nurse practitioner (NP), according to Todd Taylor, MD, FACEP, an attending ED physician at Good Samaritan Regional Medical Center in Phoenix. "Even then, there is a requirement for a physician to countersign the chart on every patient transferred and possibly every patient that is discharged," Taylor says. "Although this is not explicitly stated in the regulations, a discharge’ is equivalent to a transfer,’ so it could be construed."
Here are some of the reasons experts advise against the use of nonphysicians to perform MSEs in the ED:
• Adverse outcomes are more likely. Lawrence points to several examples of conditions that are notoriously difficult to diagnose, even for skilled ED physicians. "These include myocardial infarctions with atypical presentations, pulmonary emboli, and early meningitis," he says. "Not all emergency medical conditions fit into neat guideline rules."
• Patient satisfaction is lower. Patients turned away for care elsewhere because they don’t have an emergency medical condition are likely to be dissatisfied customers, says Lawrence. "Consider all the consequences that dissatisfaction brings," he advises.
The time and resources used for a nonphysician to perform a proper MSE could be better spent by having an ED physician, or NP/PA under EP supervision actually treat the patient, argues Lawrence. "Not only will the patient be happier, but also the hospital and EP will not miss another revenue enhancing opportunity,’" says Lawrence. "The additional time to actually treat the patient after the MSE is performed and diagnosis is made is minimal."
• The guidelines and policies needed for nonphysician MSEs increase liability risks. Having to follow strict protocols to the letter lays the hospital wide open for liability when an investigation takes place by state or federal authorities, says Lawrence. "Anyone who has done policy audits knows that no institution can follow its policies 100%," he warns. "The more detailed the policies, the more likely an investigation will find a deviation from them, subjecting the hospital to the range of EMTALA sanctions."
• Nonphysicians can’t be billed for an ED visit under Medicare. The professional service portion of care cannot be billed for an ED visit under Medicare, if a physician does not see the patient, notes Stephen Frew, JD, president of the Rockford, IL-based Frew Consulting Group, which specializes in EMTALA compliance. An alternative used by some hospitals is to have all patients seen briefly prior to discharge by a physician, so that the screening is ultimately approved by a physician, signed by a physician, and billable under Medicare, Frew notes.
• There is a lack of defense for malpractice cases. Although adverse events or poor outcomes can occur with any medical encounter, including those with board-certified ED physicians, the problem with nonphysician MSEs is defending what occurred when a physician did not see the patient, Taylor explains. "This is not so much a problem with EMTALA as it is with the malpractice case that nearly always follows," he says.
Some courts have only held the provider to the standard of care commensurate with their training, Taylor notes. "Others have use the captain-of-the-ship’ theory and assume that the highest available standard — a physician — is the standard to which anyone doing such care will be held," he warns.
Lawrence contrasts the scenario of a patient given an MSE by a nonphysician to that of a patient first seen by a nurse practitioner, then seen by an ED physician for review before the patient is discharged. In the former situation, the nonphysician is working independently of any physician, says Lawrence. "The blame for any mistakes made in the MSE will fall squarely and solely on the hospital if such a patient is sent for care elsewhere and an untoward event occurs," he emphasizes.
In the second situation, the ED physician is acting as a "quality control" of the physician extender and sharing in the treatment decisions as well as the downside if a mistake is made, says Lawrence.