Articles
EMTALA: On-Call Physicians Liable for Violations
Hospitals that participate in the Medicare and Medicaid programs must comply with various state and federal laws, including the Emergency Medical Treatment and Active Labor Act (EMTALA). Hospitals subject to EMTALA may incur liability for violations under its enforcement provisions. But did you know that on-call physicians at hospitals subject to EMTALA must also comply with the act to avoid liability?
EMTALA AND ON-CALL LISTS
EMTALA governs how and when a hospital can refuse
to treat a patient and transfer unstable patients to
another hospital. It requires hospitals to 'maintain a list
of physicians who are on call for duty after the initial
examination to provide treatment necessary to stabilize
an individual with an emergency medical condition.' The
purpose of the on-call list is to identify and ensure that
emergency departments are prospectively aware of those
physicians, including specialists and subspecialists, who
are available to provide care.
The law applies to both emergency department physicians and those on-call physicians required to assist in the medical screening examination and, if necessary, the stabilization and appropriate transfer of a patient.
HOSPITAL AND STAFF
As stated above, the Medicare and EMTALA laws
directly govern the actions of a hospital. Therefore, a
hospital can be liable for EMTALA violations.
A hospital's governing board is responsible for the hospital's control and operation. This includes approving the hospital's medical staff bylaws, rules and regulations that govern its physicians' responsibilities and duties, including on-call physicians. In addition, the governing board must ensure that the medical staff is accountable to the board.
By virtue of a hospital governing board's assignment of responsibilities, the hospital itself may be directly responsible for the actions of its medical staff, including on-call physicians. Moreover, EMTALA expressly holds hospitals liable for certain actions of on-call physicians. For example, a hospital may be held liable for an on-call physician's refusal or failure to come to the hospital when his or her services are necessary to assess and possibly stabilize or assist in the transfer of a patient.
EMTALA penalties for on-call physicians Like hospitals, on-call physicians who violate their EMTALA obligations face a number of enforcement provisions. A failure to comply with federal and state laws and their accompanying regulations — including EMTALA — may result in termination from the Medicare and Medicaid programs. The Office of Inspector General (OIG) may issue civil monetary penalties (CMPs) and exclude physicians from federal health care programs as well. CMPs range from up to $25,000 per violation for hospitals with fewer than 100 beds to $50,000 per violation for hospitals with 100 beds or over. Penalties are based on the size of the facility. The OIG can also assess up to $50,000 per violation for physicians who commit gross and flagrant violations. |
ON-CALL LIABILITY
Physicians are agents of a hospital. As such, under
EMTALA, physicians, including on-call emergency
physicians, may — in addition to the hospital — be
held liable for violating the statute and its accompanying
regulations.
For example, suppose that, after an initial examination, an emergency department physician determines a patient's condition requires the services of a physician on the hospital's on-call list. The emergency physician notifies the on-call physician, but the on-call physician fails or refuses to appear within a reasonable time. After making the determination that, without the services of the on-call physician, the benefits of transfer outweigh the risks, the emergency physician orders the transfer of the individual. In this scenario, the physician who authorized the transfer will not be subject to any EMTALA penalty, but a penalty may apply to the on-call physician who failed or refused to appear.
Hospitals should track these events. In fact, the act requires hospitals to record the name and address of any on-call physician who has refused or failed to appear within a reasonable time to provide the level of treatment required to satisfy his or her EMTALA obligations.
COURTS AND CMS
Courts have concluded that EMTALA applies to the
actions of on-call physicians. In Burditt v. U.S. Dept.
of Health and Human Services, the Fifth Circuit Court
of Appeals held that, because a physician agreed to be
bound by the hospital's bylaws in an application for medical
staff privileges, he was subject to EMTALA. The
court also found that hospital physicians who treat hospital
patients are the hospital's agents for purposes of such
treatment. It reasoned that, because hospitals can act and
become aware of information only through certain individuals,
including physicians, any EMTALA violation
by the physician is also an EMTALA violation by the
hospital.
Courts have concluded that EMTALA applies to the actions of on-call physicians.
The Centers for Medicare and Medicaid Services (CMS) also has addressed the issue of EMTALA and on-call physicians. In commentary and proposed rules the agency has published in the Federal Register and in interpretive guidelines it has issued, CMS has specifically included on-call physicians as part of the ancillary services used to provide an appropriate screening exam to the patient as required by EMTALA.
BE IN THE KNOW
EMTALA affects both hospitals that employ on-call
physicians and physician groups that have employees
on a hospital's on-call list. If you're in either of these
situations, familiarize yourself with the EMTALA
regulations that apply to on-call situations. Violations
of these obligations could result in large financial
sanctions and revocation of participation in federal
health care programs.
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Felhaber, Larson, Fenlon & Vogt, P.A. |
Felhaber, Larson, Fenlon & Vogt, P.A. |
www.felhaber.com |
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