EMTALA and why this emergency physician is against it

by 911Doc, MD

American medicine will die or be reborn in the next ten years. Correction, it will either continue an accelerated slide into banal mediocrity, or be reborn. The battle is finally joined, and it has been joined by the specialists. Thank you, doctors, for drawing the line in the sand. I hope you win. Honest.

I am cheering against my own college here because they have been so obviously wrong for so long, and our leadership, such as it is, has continued to try and put a hammer-lock on our consultants by passing resolutions and amending hospital bylaws and throwing guilt trips at these most-skilled physicians. All of this instead of making sure the stars are in good shape for the big game. All of this instead of advocating for physicians and fighting against EMTALA.

To be brief, EMTALA is an unfunded federal mandate passed in 1986, which, de facto, has made it a crime to tell anyone ‘no’ in the ER. Because of this, the specialists on call have learned to hate the ER. The ER is no longer a place from which one can build a practice, it is, rather, a place that compels you lose sleep, and money. It compels consultants to expose themselves to full malpractice liability every time they accept a patient from us whether they ever get paid or not.

No doubt there is a strong tradition in western medicine to treat first and seek payment later. This dates to Hippocrates and is part of the original oath. My question is this. How far should this obligation extend, and, should it be extended by force of law rather than by individual choice? My answer is that the obligation should never be extended de jure. Medical schools, training programs, and hospitals can choose to extend this requirement to their students and physicians and the students and physicians can choose to participate or not, but the government does not have this right. Seems to me we fought a war over a similar issue, for this is analogous to taxation without representation, only this tax is paid in time, liability, and money.

But let me take the opposite view and say that creating the obligation to deliver care gratis to whomever is sick in the ER during your on-call shift is a proper government function. The next question is this: How much exactly? How many charity cases are you required to do per year? Is the answer, “as many as the situation demands?” It can’t be that because then you have made medicine into a charitable endeavor, and maybe this is what it should be, but it is not what it is, and not what it was, ever, anywhere. This is not to say that there are not physicians who aren’t motivated solely by charity, but it is to say that there aren’t many of them. If it’s not “as many as the situation demands” then what is the answer, and who gets to decide?

So the specialists are fed up, and they have figured out how to fight city hall. For years their battle has been against the system or even the ER doc downstairs. But now they have turned the bureaucrats game against them. EMTALA and the bylaws, policies, and rules that it has generated are being followed to the letter.

For instance, almost all hospitals have an on-call policy for specialists that require them, if the ER doc requests it, to come in to the ER and evaluate the patient. Well, they can be forced to do this, but in many cases they cannot be forced to treat the patient. Unheard of twenty years ago and before EMTALA, but specialists are now routinely coming in, evaluating the patient, and finding reasons why this particular case is out of their area of expertise, or not appropriate for their care, or not in need of surgery immediately, and the specialists are going home.

Recently, a child came in to the ER after sustaining a facial laceration. Two different surgeons were called to fix the cosmetically sensitive but clearly non-emergent laceration. Both came in, and both told the ER doc, “No issue, you can do this.” And that’s exactly what happened, the ER doc sewed it up (I hope he did it well). And that’s exactly what EMTALA means, and it ends up hurting people who do not deserve it, and it ends up rewarding those that do not deserve it.

But how can a surgeon refuse to operate? By way of example, consider the lowly gall bladder. When I was in training the gall bladder came out with pain and an abnormal ultrasound. Now it doesn’t. It used to be that surgeons would operate at the drop of a hat because they loved surgery. Not anymore. You see, if a patient with acute cholecystitis can be ‘cooled down’ with fluids and antibiotics — no need to remove it right now. Have the patient follow up with the surgeon as an outpatient. You can’t be sued for an operation you didn’t do.

Then the patient goes to the surgeon’s office a few days later and is no longer under the rubric of EMTALA, therefore, they must pay for their surgery (payment plans are accepted), or have insurance. Still sounds fair right? I mean, who gets surgery for free, right? Well, these folks do not follow through with the surgeon because it’s not free, they end up right back in the ER, and on the 28th time they are sick enough to go to the ICU. Some of them die, and they all chose to walk the streets with the ticking time bomb in their belly because they wouldn’t pay for surgery.

EMTALA compliant? Absolutely. Fair? Yes. Optimal? No. How to force the surgeons to operate? I don’t know… at the point of a gun? Otherwise, there’s no one that can do what they do, not even an attorney. Surgeons, in particular, are unique, and they are needed, and so sorry Miss Jones, but Dr. ___ has resigned from the hospital staff to open a botox clinic and no longer does procedures here.

And guess what? That’s a royal flush … the bureaucrats are holding a ten-high. No one else can do your jobs, docs — certainly not those who own us right now. Play your hand, specialists, the pot is huge and you can’t lose. Bluff up the pot, get EMTALA in there, lay the cards down, and win a victory for yourselves and patients. Be the wall on which the tide of enforced mediocrity and misery breaks. And let’s get that plastic surgeon in to sew up the little girl’s face … happily.

911Doc is an emergency physician who blogs at M.D.O.D.

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