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EMTALA, Medical Screening Exams, and Challenging Patients: Legal and Ethical Considerations
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thanks everyone for coming on Friday at uh
10:30 so we're going to be speaking
about mtal which is not necessarily like
the most thrilling of topics but it
turns out that there's a lot of gray
area around the edges that um bring up a
lot of questions and sort of moral
questions ethical questions things like
that and that's really where we're going
to try to focus today um recognizing
that there it may lead to more questions
than answers but an important topic
nonetheless um so not neither of us have
any uh
disclosures um and we'll just introduce
ourselves briefly uh sure uh my name is
Ken Preston Sunni I'm the acting chief
of emergency medicine at the VA Greater
Los Angeles uh and an assistant
professor of emergency medicine at
UCLA awesome and I'm Jonathan sonis um I
am the associate chief medical officer
and VP for medical Affairs at Newton
Welsley Hospital in Boston which is a
community affiliate of uh in the Mass
General Brigham system um but up until
March 1st I was at Mass General uh
leading quality and safety work there um
and I'm still on faculty there and I'm
an assistant professor of emergency
medicine um as well and then I hold an
additional role for kco which is our um
risk it's our sort of malpractice
insurer for all the Physicians
associated with the Harvard hospitals in
Boston um as the associate medical
director for emergeny
medicine so I'll start by just going
through what are our objectives for our
short time together one is just like the
background on what is the point of mtala
where did it where did it come from uh
why was it created um and give a very
sort of you know high level overview of
what is a medical screening exam what
constitutes a medical screening exam I
think we throw that around a lot in the
Ed what does it actually mean um and
then again like I feel like the the the
real kind of interesting part of this
discussion um will revolve around the
ethical considerations uh relevant to
tala in in the Ed that that come up on
our shifts quite
frequently so first and foremost what is
it so Mella um is a law that requires
hospitals with emergency departments um
to provide a medical screening
examination that's that MSE to anyone
who comes in requesting care in the Ed
um and you care cannot be refused um
there can't be a refusal to examine um
or treat any individual who is
determined to have an emergency medical
condition during that medical screening
exam so notably um just to call out the
obvious this is hospitals with emergency
department so many of us work in systems
that have for example urgent cares or
like walk-in clinics for Primary Care or
things like that it doesn't apply um so
this is specific to um a site that has
an emergency department or to an
emergency department um and then there's
serious penalties right this is a law so
there's a there's um it's a it's a
condition of participation so so um if
there's an mtal violation whether it's
really obvious like you know the kind of
thing that would really is a wo or some
of these nuanced examples that Kean will
take us through later um a violation is
a violation if it's found to be the
case so here's the the law um itself and
Kean will get more into the background
of kind of where this came from um
specifically related to women and labor
um but without reading through all the
text the bottom line is what of what
I've said so if it's a hospital that has
an emergency department anyone comes to
the Ed and says I'm looking for care um
and that's a key point they have to
actually say I'm here to seeking care
for this to apply um then we have to we
we by law have to ex you know provide
that medical screening exam um and uh
within the cap within the capabilities
of what we can do in our Ed right so
there isn't an expectation that we can
magically create sources that don't
exist um and then again if an emergency
uh medical condition exists we have to
take appropriate next steps uh related
to that um to stabilize for that
emergency medical condition um here are
the the violation consequences we won't
focus too much on this but um again this
is a condition of participation with CMS
so um Med Medicare can can basically
terminate the hospitals agreement stop
paying us for the whatever percentage of
of patients that we get paid by Medicare
and Medicaid for um there are fines like
you know instance specific fines that
the hospital have to pay this comes up
not infrequently um and then there's
potential uh you know legal implications
well so um a bit about the history um in
the 1980s there were a number of um well
publicized um reports from emergency
physicians uh throughout the country um
documenting cases of patient dumping so
these are cases of patients who present
to emergency departments who had
emergency medical conditions but were
uninsured or underinsured um and were
discharged without treatment or care um
so these received a lot of attention um
and sort a number of op-eds were
published New York Times LA Times Boston
Globe in prominent U newspapers
throughout the country and got a lot of
attention from legislators um who
decided that this is not acceptable you
can deny patients um care in outpatient
settings if you're uh primary care
position but it was thought to be
inappropriate if you have an emergency
patient um so as a result of this um the
uh Cobra Act of 1996 or 1986 included um
this law the known as mtala um in
response to these allegations of patient
dumping um requiring that patients with
an emergency medical condition um
receive stabilizing treatment and care
after having received the medical
screening examination um interestingly
there weren't really any teeth to this
law until 1996 so it wasn't until the um
hippo was passed in 96 um that there was
actually um investigation and so that
clarified that the IG is delegates
authority to the health Departments of
each state to investigate allegations of
mtala so what are the legal requirements
in the Ed um so we already talked about
the fact that it is the law that if
you're in a hospital with an emergency
department you have to uh provide that
medical screening uh exam and this is an
example that I used for um at at Mass
General in Boston so we are next to mass
ier Institute which is a uh Opthalmology
in in ENT Hospital right and um often
this would come up with sort of trainees
and PPS and stuff like oh well it's kind
of the same Hospital like wouldn't it be
more efficient operationally if we just
met that patient right at the door and
said oh you're here with a foreign body
in your eye or whatever you need an
opthalmologist we you can't do that
right so a lot of us you know in
academic settings work on campuses where
there might be multiple if it's a if
it's a if the patient is presenting to
your Ed um then they need that medical
screen exam now that medical screening
exam could be very brief but it needs to
be done and it needs to be documented um
all EDS must stabilize and treat all
examples regardless of insurance or
ability to pay that's really where this
came from right it was it was uh women
and labor who were presenting and
because of insurance status were
basically being turned away um so that's
critical um I think we'd all agree it's
also just like the right thing to do
when we get to the ethical
considerations um and uh I hope this is
obvious but uh care must be provided
regardless of legal status citizenship
other any other demographic factors
right um I mentioned the the sort of
transfer issue this comes up lot for us
and I'm sure on your shifts um transfer
is a big part of this so it's it's an
mtala violation to transfer a patient
even if it's even if you've done the
medical screening exam and you know with
with the best of intentions to get them
to where the care that they need exists
um without the informed consent uh of
the patient or um or the appropriate
patient so it's worth looking um at
published reports of violations of mtala
um sort of to reflect on kind of your
own operations in your own emergency
departments and by far the most common
violation that's reported in mtal um
that's reported um to IGS is for failure
to provide a medical screening
examination so it really is the first
part um of course violations still
happen if an emergency medical condition
is identified and there's a failure to
provide stabilizing treatment or a
failure to appropriately Trent for that
patient um but the failure to provide
the Med medical screening examination is
scene and importantly um the Supreme
Court has weighed in on this and um
improper motive is not required um to to
call it a violation of Impala so when
Roberts versus Galen um a woman who had
suffered a severe um severe injuries
related to an auto versus pedestrian
accident was admitted to the hospital
had a prolonged stay for 6 weeks she was
transferred to another facility um and
then after transfer she decompensated um
and so even though the hospital had done
the right thing they cared for her they
provided 6 weeks of impatient care they
thought she was stabilized um after she
was transferred she'd be compensated so
she wasn't in fact stabilized um and
even though they tried to do the right
thing the hospital was found to be in
violation of
Anala um and then a more recent example
um that uh strikes close to home this
wasn't at a hospital that I worked at
but it's one uh near um near where I'm
from but um so this is a patient who
unfortunately presented with abdominal
pain um and the Ed was very overcrowded
um and there was a very delayed um time
from the presentation until being seen
so the patient presented 6 and a half
hours later um he still hadn't been
evaluated and so he left um went to an
outside hospital um and was found to
have a perforated appendicitis with an
abscess um and had to have an open
laparotomy for treatment um and the
hospital was found to be in violation of
inal so even though you know there was
no um um malintention on the part of the
hospital and it was an operational
challenge um with a delay to being seen
by a physician um even though they
hadn't sent the person away their
failure to provide that patient with an
MSE when an EMC was present um was found
to be a violation of
top and I might just add you know this
is kind of a new world I think and I'm
telling we were chatting about this in
the hallway a little bit earlier we're
all dealing with boarding crowding you
know maybe not all but many of us are
dealing with this um prolonged waiting
room times increase left without being
seen um and the the the risk of this
increases in addition to the risk of
just bad things happening to our
patients right which is first and
foremost but um figuring out that that
line of what when could this actually
become a violation I think is more
challenging today than maybe you know
ever before in most of our careers so
what is the medical screening exam um so
again this is guidance that that that I
used um at Mass General a medical
screening exam MSE is performed by a
physician physician assistant or nurse
practitioner credentialed and approved
to work in the Ed um the the reason I
wanted to show this is this is the
guidance that we use but actually it
does not need to be a physician or AP it
can be a nurse who has appropriate um
training to do this um but it's site
specific so at our site we've made the
decision that it makes sense for this to
be done by by a provide you know by a
physician or AP um but not necessarily
everywhere um it can be as brief or
comprehensive as indicated to address
the patient's presentation and chief
complaint this is obviously there's
nothing set in stone about this it's a
little bit of a judgment call but what I
will say especially as it pertains to if
you have nurses doing this at your site
is that like nurse triage Like Chief
complaint Vital Signs and looking at the
patient generally speaking would not
count right unless unless that meant
unless that was as comprehensive as
indicated based on the um the patient's
presentation um and then it must be
documented so this is really critical
especially when um you know a a
complaint comes up or your whatever the
state Authority is that that
investigates this um comes it it there
needs to be documentation so saying oh
I'm you know someone comes to you right
say say say a nurse working in your
triage area comes and grabs you from
whatever pod you're working and says hey
there's this you know there's there's
this gentleman out in the waiting room
like we think he's he's okay he's
talking about you know potentially
leaving or whatever can you come take a
look and you walk out there and you look
and you say this guy's fine um that
didn't happen unless it ends up in the
chart somewhere right so it's really
it's it's important to actually document these
things and so what if there is an
emergency medical condition identified
so again the law requires that we
stabilize and treat within capacity and
that we transfer for higher level of
care when that's indicated um there are
components of that transfer that are
required as per mtell so I think these
are generally pretty common sense um but
uh but it's worth calling them out one
is sign consent that's pretty
straightforward um the second and this
is a big one is continuing treatment
awaiting transfer so I don't know about
all of you in our system uh if you're at
a you know a community or outlying site
and you need to transfer to a higher
level of care uh sometimes that can
happen really quickly but sometimes it
can't right um and we are require you
know having the sign consent and calling
EMS to to transfer uh doesn't mean that
you can just like be done right um again
sounds like common sense but there's so
many pressures on US during our shifts
that that that can happen right um and
so beyond just good clinical care to
make sure there's continuity it's
required by law um it's on it's on the
sending physician or facility to ensure
that whatever hospital is receiving and
transfer actually has the capacity to
care for the patient um we are required
to send all medical records this comes
up it didn't make the list or the top of
the list but this comes up for
frequently for any of us that work in
AMCs you get the transfer from somewhere
and you're like there's no there's no
records here sometimes those might end
up reported more than others but that's
that's an ntal violation if the
appropriate records are not sent um and
then appropriate level uh of of
Transportation so whether it's you know
BLS ALS uh Critical Care transport Etc
Etc
um the other the flip side of this is
that hospitals or facilities that do
have the appropriate specialized
services to care for the patient um and
and have the capacity which depending on
where in the country you are often
there's not a lot of extra capacity
right now um they're obligated to accept
the transfer just the same way based on
the same conditions they can't say no
based on insurance status or you know
demographics of the patient Etc so
that's part of the law as
well all right so now kind of having
gone over some of the background of the
law some of the requirements of the law
um we want to get into some of the
challenging situations that arise all
the time um when you're on shift um so
I'm sure
um some of you have been in the
situation where you have a patient who's
on a psychiatric hold so a legal hold
obviously these veryy by state um but in
California where I work this is referred
to as a 5150 a 72-hour legal hold um
where patients whoose an acute threat to
themselves to for to others um lose
their ability to you know leave or to go
somewhere else what if this patient
refuses an
M what can you
do patient comes in they're they're on a
hold someone plac the hold Pati setting
they're brought in either by um by the
mental health Team maybe by the police
and they're in your Ed and they're
drop I think for my situation you have
to think how much do you really need the
blood the urine um if it's something as
simple as Vital
Signs can be other ways to work with
this person to
get ultimately
information great um I like the first
part especially like try to work with
the patient try to you know develop a
shared understanding of the need for
this um information um and then
your local facility should hopefully
have some additional guidance and state
laws will also hopefully help you um in
general at least in California the um
5150 hold um takes away the person's
right to movement to free movement but
it doesn't take away their right to
refuse other treatments so if the person
has capacity um to make medical
decisions um and and they're able to you
know have the convers obviously a hard
part right like having a discussion
about informed consent is difficult when
you the paent is screaming at you but
you in your best judgment have to decide
if this patient has capacity if they do
they can refuse a medical screening exam
um mtala actually requires that written
informed consent be obtained in these
cases when a patient refuses an MSE
which of course is very challenging in
these fraud situations um and so if you
can't obtain that written informed
consent just document you know document
your best attempt to get that um written
informed consent um and the patient's
refusal of an MSE but that's actually
within the patient's right as long as
they have capacity um to make medical
decisions um what about a patient
patient who presents a triage and
refuses to be wanded or maybe won't go
through the medical detector or the
metal detector detector that's what
we're doing um uh and you can't say that
that person is safe maybe they have CRA
maybe they have weapons on them um but
they're in the Ed and they want to be
screened they want to be seen for their
do this is a hard one I'm just Cur
curious as people are thinking through
the answer this can can you raise your
hand if you work in a place where
routinely patients do go through a metal
detector or have that is fascinating yeah
yeah
interesting just in the side so we in
where Scott and I work uh in the system
in Boston we none of our sites have any
of metal detector wanding anything like
that so it's very interesting to see
what the what you do for your site PA
what's that search no we have a we have
a yeah our nursing and uh police and
security staff do a you know they change
them and do a search but there's no no
wanding or or walking through a metal
what right or or Worse MRI when they're
you know yeah
yeah too yeah have
a
process super high
volum to put together a policy which
felt terrible not how to deal with this
and basically we asked one of the people
who can do an MSE to go out to um the
you know area where the person is
refusing and see what they can do and
you know it most of the time go out you
make you know you say I'm the doctor I
need you to do this and they do they
eventually agree um but occasionally you
at least get they have capacity and and
sometimes let them go the documentation
however on that they haven't been
registered that's the part where we get
rather that's a great example of a of a
challenging local solution to a
difficult problem right obviously um the
most important part is recognizing that
that person who's refusing screening for
weapons is an acute safet RIS and can't
be brought into the emergency department
or there would be a risk to other people
Unfortunately they still are required by
Ana to receive a medical screening
examination um so I don't know what the
best answer is I think they're all just
least bad options um at my VA facility
um you know VA is a federal agency and
has its own police force so we call the
APD and we perform a medical screening
examination in the presence of the APD
um interestingly at VA you can only have
a metal detector if it's staffed at all
times by a police officer which is a
really High bar um and makes it
difficult to do so we have wanding done
by a um a secur
security but it's a it's a challenge um
I think your point so one other piece
that's worth mentioning so even though
mtala was um written to prevent patient
dumping um it still uh we still see
inequities in how patients are treated
so patients who are un underinsured or
uninsured are more likely to be
transferred for the medical conditions
they're less likely to be ad the
hospital where they initially present um
which means they're more likely to have
delays in definitive care delays in
treatment prolonged times boarding and
emergency departments um and also we see
high rates of transfers after hours and
on weekends um so even though we work 24
hours and we're used to working
inconvenient times the rest of the
hospital is not um and so patients who
present with emergency medical
conditions during off hours are more
likely to be transferred um and then
experience those delays
is there any data on patients who are in
language that is a really good
question to elsewhere that's a really
good question um there is a wealth of
evidence showing that people who have
limited English proficiency experience
worse care trauma patients with limited
English proficiency are more likely to
be inated um for a similar GCS um I'm
not aware of one specifically showing a
com a link between the two of them but I
wouldn't be surprised if that was the
case because it's been shown in every
other example of a disparity um so I
would expect that it probably also uh is
seen there I know we're coming to time
so we'll just go through this briefly um
this is something that's come up for me
in my clinical practice many times and
I'm curious and would suspect it has for
all of you um so many of us work in
places now where we have some sort of
patient code of conduct or behavior
escalation or behavioral uh um
expectations that are sort of published
posted provided to patients this is a a
good thing um generally I think they're
they're usually sort of paired with a
patient Bill of Rights kind of thing to
sort of create that balance that's great
that does not negate mtala right so I
don't know if anyone here has ever had a
conversation with someone from like a
different role group who's saying well
we're not following the code of conduct
how can they be allowed to behave this
way um it stinks sometimes right but we
still have to perform a medical
screening exam and if they do have an
emergency medical condition we cannot
just say you're violating the C no
matter how egregious unfortunately the
things that they're saying or you know
or Behavior Uh is so I just want to
point that out and you know this is
example language from oured you may be
asked to leave if you cannot comply with
the Cod if you are not suffering from an
emergency medical condition right um so
that's a limitation of the ability to
use tools like that in the Ed
uh of course an issue as we all
experience High you know High rates of
at least threat of workplace violence if
not violence itself um so an important
consideration um some other situations
that arise um what about patients who
lack capacity they're intoxicated
they're altered um maybe they have a
legal guardian that's not with them um
these are challenging situations as well
I we're running up on time
um but uh it's worth it's worth say you
know in many facilities a patient who's
intoxicated um will be held against
their will until they're sober enough to
leave um given you know medical
malpractice cases which have found
Physicians liable for releasing someone
who's intoxicated and is then injured um
I will say interestingly in the VA um
that's not the case so if you do not
suspect an emergency medical condition
um the VA has found that patients
without capacity um cannot be held
against their will if you're not
suspecting an
so if the person's got blunt head trauma
and they're drunk um you can keep them
against their will until you've gotten a
CT scan and ruled out of bleed but if
they're just drunk and they want to
leave um within VA we're not let to hold
those patients which is an interesting
Quirk um and something that brings up
ethical dilemmas on the other side of uh
of things and that brings us to our kind
of concluding points um nicely which is
um I hope people didn't come here
expecting to learn the answer because um
the gray area like everything is the
largest um and it gets back to comments
that were made here where um largely
speaking as long as you're aware of the
law and and the need for the medical
screen exam and making as much effort as
you can to do that in a reasonable way
and you document that is really the most
important um thing even if things don't
go like smoothly the way that you'd like
with I did the medical screening exam
and then this right it's never really
like that um we don't work in like a
nice conference room um IAL legal
considerations is just the last Point uh
this is something I think we think about
to your point like okay if I hold the
patient because I think that they don't
have capacity to leave they could sue me
if I let them leave because they're
yelling that they're going to sue me if
I don't let them leave and look I can
walk in a straight line and I'm sober
and but and then they get hit by a truck
they cons sue me right and the reality
is that's that's true right nothing is
fully protective and that's why it gets
back to just um doing the best that you
can for patients and and and documenting
the other thing is that I would imagine
that all of us work in a place where we
have some access to um legal advice or
legal counsil 24 hours a day somehow um
some of these really sticky cases this
that's a great time to to sort of pull
that lever and call so you're not
worrying Alone um and have a little bit
of guidance and I I've almost any time
I've done that I've learned something
that I hadn't really thought of and how
I was considering the situation
beforehand so um we'll end there sorry
we're a little bit over but um thanks
everyone for coming on Friday and um and
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