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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

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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