Legal Eagle Eye Newsletter for the Nursing Profession (7)8 Aug 99

Quick Summary: Patients who are stabilized, as that is defined by law, may be transferred without limitation without risking violation of the Emergency Medical Treatment and Active Labor Act.

   Stabilized means that no material deterioration of the patient’s condition is likely, within reasonable medical probability, to result from or occur during the transfer of the individual.

   Medical and nursing personnel at the transferring hospital must make an on-the-spot risk analysis, sometimes very quickly and in the face of an overwhelming emergency situation.

   They must weigh what they can do for the patient at their hospital versus the services available at another hospital, possibly better equipped and more fully staffed, and must consider the patient’s present condition versus the risk the patient will get worse during the transfer.

   When a transfer is being considered it is the patient’s immediate situation that is paramount, and long term treatment goals are not the primary focus.  United States Court of Appeals, Sixth Circuit, 1999.

   In a case involving the Emergency Medical Treatment and Active Labor Act (EMTALA) decided in May, 1999 – after the Supreme Court’s landmark decision in January, 1999 – the U.S. Circuit Court of Appeals for the Sixth Circuit expressly said there was no question of improper motive, that is, no issue of "patient dumping" because of uninsured status.

   The case involved an emergency room physician who was censured and fined in an administrative proceeding for violating the EMTALA in the handling of two emergency room patients. The court ruled no EMTALA violation occurred and overturned the censure and fine.

   In this case, medical and nursing personnel at the first hospital apparently were genuinely only interested in the patients’ well-being, and were trying to respond appropriately to an overwhelmingly difficult situation. Several bad auto accident trauma cases were brought in to a rural hospital. It had an emergency room but no trauma center, no equipment for monitoring anesthesia during neurosurgery on the brain and had a long-standing policy against even attempting such surgery.

   Two patients needed brain surgery, but were also bleeding in their abdomens. The physician wanted to operate on each of them to stop the abdominal bleeding, then send them to a teaching-hospital trauma center 85 miles away. The on-call anesthesiologist, however, refused to come to the hospital, insisting that that procedure itself was too risky and that they should be transferred right away.

   The nurses assisted in initial triage. Then they cared for three less serious cases while the physician concentrated on the two most badly hurt. They monitored the patients’ blood pressures and other vitals, phoned the anesthesiologist repeatedly to try to get him to come in, tried to get a helicopter but instead made the arrangements for ambulances to take them to the trauma center and communicated with the trauma center. In fact, the patients did not suffer harm during transfer.

   The court’s opinion dealt with a number of issues. The EMTALA applies to all hospitals which have emergency departments and which participate in Medicare. It is not important whether the patient whose care is at issue is on Medicare.

   Patients have the right to sue hospitals for violations of the EMTALA. Also, the Department of Health and Human Services Office of Inspector General can censure and fine hospitals and physicians, but not nurses, for EMTALA violations. Like any other Federal administrative action, the censure and fine can be appealed to Federal court.

   In this case the emergency room nurse and house nursing supervisor were involved in the events in the emergency room. Later their testimony was given careful consideration by the Administrative Law Judge, although they were not the subject of the Inspector General’s charges.

   Technically speaking, a patient does not have to be stabilized to be transferred from the hospital which first accepted the patient as an emergency case. However, to transfer a patient who has not been stabilized, a physician must make a written certification based upon the information available at the time of transfer that the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risk to the patient from making the transfer, and only if the receiving medical facility has agreed to accept transfer of the patient and to provide the patient with appropriate medical treatment.

   A patient who has been stabilized in the hospital can be transferred to another hospital without a physician’s certification and without an agreement from the other hospital to accept the patient.

   The court ruled for the physician on a technicality. It said in fact these patients were stabilized within the staff and facilities available at the first hospital, so no EMTALA violation took place. Cherukuri v. Shalala, Secretary of the Department of Health and Human Services, 175 F. 3d 446 (6th Cir., 1999).