Ann Bittinger, Esquire
The Bittinger Law Firm
Since Congress enacted the Emergency Medical Treatment and Labor Act (EMTALA) in 1986, there has been interplay between EMTALA and common law professional liability actions.1 There is a private right of action against hospitalsâ€“not physiciansâ€”under EMTALA for patients injured by violations of the law.2 Many times, however, the facts giving rise to an EMTALA claim also support a claim of professional negligence.
Although courts have repeatedly held that EMTALA is not a federal medical malpractice act, attorneys who handle healthcare liability matters should be aware of the recent changes to the EMTALA regulations. These changes clarify not only what conduct may result in federal EMTALA fines, but could have the effect of setting a new standard of care, particularly for on-call physiciansâ€™ response to emergency situations.
On September 9, 2003, theÂ Department of Health and Human Services issued longawaited changes to the EMTALA regulations.3 The changes became effective November 10, 2003. From a liability standpoint, particularly for physicians, the changes regarding call coverage raise the greatest concern.
II. Call Coverage
A. In-person response to call.
Professional liability standards for in-person response to call vary by jurisdiction. Before the September regulatory changes, there was little case law or regulatory guidance regarding EMTALA requirements to respond in-person to call coverage.
Now the preamble to the new regulations may cause specialists to err on the side of caution when it comes to responding in-person to call.
The preamble states:
While the emergency physician and the on-call specialist may need to discuss the best way to meet the individualâ€™s medical needs, we also believe any disagreement between the two regarding the need for an on-call physician to come to the hospital and examine the individual must be resolved byÂ referring to the medical judgment of the emergency physician or other practitioner who hasÂ personally examined the individual and is currently treating the individual.4
According to the preamble, ifÂ the emergency room physician believes that an on-call specialistÂ is needed in the emergency department, the specialist must go to the emergency department or the specialist could be subject to an EMTALA fine. Moreover, plaintiffsâ€™ attorneys could use this preamble language to argue for the existence of a common law duty to make an in-person response to call.
A professional liability action arising out of events in an emergency department is usually filed not only against the hospital, but also against the emergency physician. The emergency physician may be employed as a hospitalist by the hospital or may be part of a group that has an exclusive contract with the hospital to provide emergency services. If a specialist was consulted regarding theÂ treatment, the specialist is usually a named party also.
Depending on the joint and several liability laws in the state, the multiple defendants often point fingers at each other. If the cause of action arose out of a situation in which the specialist was consulted over the phone but refused to respond in-person, the attorneys for the hospital and emergency room physician could use the EMTALA preamble language to show that the specialist had a duty to re-spond in-person. Failing to respond in-person caused the plaintiffâ€™s injuries, they would argue.
The new regulations thus could create a greater duty, not only under EMTALA but possibly also under the common law, on the part of the specialist.
Attorneys representing specialists who routinely respond to emergencies would be prudent to advise the specialists to be careful when declining to respond inperson to call, particularly when the emergency room physician is specifically asking the specialist to respond in the emergencyÂ room in-person. Additionally, specialists should document conversations with emergency room physicians, particularly noting why the two agreed that the specialistâ€™s in-person response was not necessary.
B. Call during scheduled procedures and visits, and at multiple hospitals.
The EMTALA regulation changes now make clear that physicians can be on call simultaneously at two hospitals.5 They can also be on call and at the same time treat scheduled office patients or perform scheduled surgeries.
These clarifications may lure physicians who have heavy call schedules to schedule patients while on call or to meet the call requirements at two hospitals at once. Physicians need to be aware, however, of possible risks inherent in such choices and may want to take steps to protect themselves.
The EMTALA rules and guidance do not relieve a physician from liability under EMTALA if the physician fails to respond to call because he or she was in surgery, treating an office patient or had responded to call at another hospital. In other words, the clarification on simultaneous call is a doubleedged sword. A physician can do other things while on call, but the physician may still have to meet his or her obligations at both places if an emergency arises in the emergency department and the physician is called to respond.
A physician cannot be in two places at once. If the physician is in the middle of a surgery, for example, and is called to the emergency room, the physician may have to choose between the risk of an EMTALA fine, if he or she chooses Continued on page 6 6 Healthcare Liability and Litigation Practice Group not to go to the emergency room, or a professional liability action, if he or she speeds through the surgery or leaves others to complete the surgery.
The preamble could be interpreted to contain a safety net for a physician who fails to respond to call because the physician was responding at another hospital, but there is a hole in that net. The preamble states that hospitals are obligated under the new regulations to develop policies and procedures to address situations when a physician cannot respond because the physician responded to call elsewhere.6 While one could interpret that statement to relieve a physician from responsibility when he or she was responding to another call, the preamble does not specifically state that.
Further, the guidance states that when an on-call physician is simultaneously on call, â€œall hospitals involved must be aware of the on-call schedules, as each hospital independently has an EMTALA obligation.â€7 The
guidance does not state who is responsible for making the hospitals aware of the simultaneous call. It seems overly burdensome to expect a hospital to double check with all other area hospitals to make sure their on-call physicians are not on-call at multiple hospitals simultaneously. It is reasonable, therefore, that the burden would be on the physician to inform the multiple hospitals. Accordingly, physicians may want to make it a practice to inform hospitals of simultaneous call schedules.
Many hospitals already maintain a backup call schedule in case a physician fails to respond. Even if there is a backup call list maintained by the hospital, physicians who do simultaneous call would be well advised to create their own backup call system that is written down and easily referred to. Physicians should also know that they may refuse to take simultaneous call.
III. In Summary
Although physicians may not perceive the EMTALA fines (capped for physicians at $50,000 per violation) to be a heavy stick in comparison to multi-million-dollar jury verdicts in professional liability actions, EMTALA compliance is important because it could help prevent professional liability actions. In light of the new EMTALA regulations, physicians should review their policies and procedures, both written and unwritten, relating to participating in and responding to call coverage. Physicians need to understand that the new EMTALA requirements could raise the bar on their common law duty to respond to call at hospitals.
1 EMTALA is principally codified at 42 U.S.C. Â§ 1395dd, other provisions appear in 42 U.S.C. Â§Â§ 1395cc(a)(1)(I) and 1395cc(a)(1)(N)(iii).
2 42 U.S.C. Â§ 1395dd(d)(2).
3 68 Fed. Reg. 53222 (Sept. 9, 2003).
4 68 Fed. Reg. 53222, 53255.
5 68 Fed. Reg. 53222, 53254.