United States: Physicians Are At Risk for Monetary Penalties for Patient Dumping Violations

In July of 2001, a public interest research group¹ issued a report on violations by hospitals and physicians of the Emergency Medical Treatment and Active Labor Act ("EMTALA")² . This report examined 527 hospitals in 46 states that were confirmed to have violated EMTALA during the period from 1996 through 2000. During this period, at least ten hospitals and one physician in West Virginia were sanctioned for EMTALA violations. Several interesting national trends were revealed in this report:

1. Almost all hospitals (90.1 percent of violating hospitals or 475 hospitals out of the 527 hospitals reviewed) violated the screening, stabilization or transfer provisions. These requirements are considered the most serious categories of EMTALA violations since they usually indicate a threat to patient safety and well-being;

2. A remarkable number of hospitals (68 hospitals of the 527 hospitals) are considered to be "repeat offenders";

3. The majority of hospitals violating EMTALA were not-for-profit, but the for-profit hospitals are statistically considered more likely to violate EMTALA;

4. A patient’s insurance status directly influences hospital compliance with EMTALA; and

5. There are an alarming number of civil monetary penalties recently being imposed upon physicians.

While all of these trends affect the well-being of patients, physicians in West Virginia should pay particular attention to the recent increase in significant penalties being assessed against physicians as an indicator that regulators are placing increased significance on the role of the physician in assuring compliance with EMTALA.

From 1997 through early 2001, 13 physicians agreed to pay civil monetary penalties to resolve alleged dumping violations, ranging from penalties between $5,000 and $45,000. Most of the physician violations involved either EMTALA’s requirements regarding screening, transfer or stabilization treatment provisions. Under EMTALA, hospitals and physicians can be sanctioned up to $50,000 for each violation of EMTALA. The average civil monetary penalty ("CMP") imposed upon physicians from 1997 through April of 2001 is approximately $20,000. The following table illustrates the trends in civil monetary penalties imposed upon physicians by HCFA for

EMTALA violations from 1997 through 2000³ :

During the period from 1997 through 2000, there is an increase in the number of physicians sanctioned for violations of EMTALA, as well as a continued emphasis as to the severity of these sanctions.

In 2000, a physician at a West Virginia hospital was fined $15,000 for an inappropriate transfer. In this situation, an ER physician was reportedly overwhelmed by a multiple car accident. Due to the severe nature of several of the patients and the inability to appropriately care for these patients locally, several of them had to be transferred to another regional hospital. While there is no clear evidence to this writer that this physician provided less than exemplary care under the circumstances, HCFA⁴ determined to fine this physician for "technical violations" based upon EMTALA requirements for conducting an appropriate transfer. Accordingly, physicians in West Virginia are well advised to become familiar with and heed the particular requirements of EMTALA, even those that may be seen as largely technical in nature, such as completing appropriate certifications for transfers in order to avoid significant civil monetary penalties.

In addition, EMTALA violations may be imposed upon physicians that see patients in the emergency department even though they are not formally emergency department doctors and upon physicians in other departments that directly admit patients in an emergency medical condition.

Further, recent amendments to EMTALA extend the provisions of EMTALA to outlying clinics and urgent care centers.

Besides transfer arrangements and documentation, another area of particular concern regarding physician sanctions for violations of EMTALA involve failure to appear timely in response to on-call requests. For example, in Merced, California, the report notes that a non verbal, mentally retarded patient was brought to the ER at Mercy Hospital with symptoms of abdominal distress and shortness of breath. The ER physician suspected an abdominal condition requiring surgery. The patient continued to deteriorate. The physician twice called the on-call surgeon to come in to immediately examine the patient. The surgeon repeatedly refused to come in, advising that the patient should be admitted for him to see in the morning. As the patient’s blood pressure and pulse rate dropped to life threatening levels, the ER physician then contacted hospital administrators in an effort to compel the surgeon to come in. The patient suffered a cardiac arrhythmia and died despite a resuscitation attempt. During the resuscitation attempt, the surgeon arrived, during which he apparently made disparaging remarks regarding the patient, a resident of a board and care home for the past 15 years, stating that, "No one would miss him if he died." HCFA found this to be an obvious violation of EMTALA after the hospital self-reported this occurrence.

On-call coverage policies and documentation regarding response by physicians to such requests should be carefully scrutinized to avoid sanctions in failing to comply with on-call procedures. Failure to maintain adequate on-call policies can lead to sanctions placed upon the hospital, while failing to respond to an on-call request by a physician or failing to report others that failed to do so can lead to sanctions placed upon the physician. Steven Summer, President of the West Virginia Hospital Association recently stated regarding this report, "They’re usually Monday morning quarterbacks." Summer indicates that investigators who visit the hospital after the fact and examine paperwork often find there was a paper or technical violation. The West Virginia Hospital Association regularly conducts seminars addressing EMTALA violations.

In conclusion, it has become increasingly important for all physicians likely to come into contact with patients with an emergency medical condition to become familiar with the somewhat technical requirements of EMTALA in order to avoid exposure for civil monetary penalties.