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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  • Vox Rusticus

    The answer is very simple; the federal government should pay all EMTALA claims by providers through the Medicare program at Medicare rates. The patients should be charged for the service at the same rate and collections should be done by the IRS, using all of the tools that agency has to collect owed taxes.

    That would be the fair and right thing to do. No one would be able to say that the EMTALA duties would go unpaid and patients who abuse the present system would have the strong arm of the IRS on them to pay up. If it costs more money, at least there would be transparency and some acknowledgment that EMTALA is a welfare benefit and thus belongs in the federal budget with other federally mandated benefits.

    • Primary Care Internist

      That is an excellent answer.

      Analogously, as far as EMR mandates and “incentives” and “disincentives” go for e-prescribing etc., why not have medicare GIVE an EMR system to all doctors and hospitals who bill medicare? After all this ultimately benefits patients and taxpayers much more than the ordering physicians/institutions.

      Instead the notion is that greedy docs would rather keep delivering mediocre uncoordinated care than spend a tiny pittance on EMR systems.

      For anyone in primary care (I include ER docs in this definition) we all know that the chief barrier to good care is NOT medical decision making or decision support technology, rather it is good SECRETARIAL / ORGANIZATIONAL support. That is, the biggest problem is actually getting info from specialists, labs, radiology etc. that you ordered for the patient. Inevitably expensive tests get re-ordered, the cardiologist wants a beta-blocker, but the pulmonologist doesn’t, the GI performing the endoscopy doesn’t know the elderly slightly confused medicare patient was started on plavix yesterday by someone, etc.

      The solution above is the only practical solution, and if our politicians would stop taking payoffs from EMR vendors and just pick one, make it web-based, GIVE it to us, and mandate we use it if we want to get paid by medicare (and even build in billing software for point-of-service billing), this will be good for patients and doctors alike. Except it will hurt EMR companies and their lobbyists, perhaps pharma, medical billing companies, and a host of others who pay big bucks to our crooked politicians who don’t realize that one day they will be patients in a dysfunctional system.

      How sad.

      • Primary Care Internist

        also this solution can dissolve the growing useless CCHIT and future similar layers of gov’t to support such mandates.

      • r watkins

        “the chief barrier to good care is NOT medical decision making or decision support technology, rather it is good SECRETARIAL / ORGANIZATIONAL support”

        Excellent point. Ironically, the better run an office is, the less benefit it will get from converting to EMRs. And if an office is poorly run, having everyone enter garbage into a computer is only going to make things worse.

    • paul

      yeah. also, what about the illegals?

    • http://www.drjshousecalls.blogspot.com Dr. Mary Johnson

      Vox, the problem with your theory is that, in terms of medical oversight, the IRS does not perform the duites it is charged to do now (there is ZERO oversight of nonprofits) . . . and, accordingly, cannot and/or will not perform all of the extra oversight duties it is charged with by Obamacare . . . and following along that train of thought, would not be able to do the “fair and right thing” to do that you suggest – that I think misses the point of the post altogether.

      I did ER work once several years back – fairly intense Pediatric ER work – and saw all the infighting and precursors to what 911 Doc discusses in this (very good) post. And the one thing I do know is that the lawyers and the politicos who make all the rules do not have a clue how the real world works for physician – and do not really care.

      It’s why this ex-public servant is still in the blogosphere – and why I still sit here after five years in it – with a problem the iRS and US Attorney could have FIXED for me long ago UNTHOUCHED.

      No hope on the horizon. NO change.

      • http://www.aneurysmsupport.com/ Mike

        “And the one thing I do know is that the lawyers and the politicos who make all the rules do not have a clue how the real world works for physician – and do not really care.”

        Why should they care Doctor Johnson, my understanding is that they personally will not be bound by Obamacare in the least.

  • ninguem

    “…….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……”

    911Doc, I like what you wrote and I mostly agree, but I have to take issue with this. Have you actually read the Hippocratic Oath? I mean the original, classical Oath. Here’s a link:

    http://www.pbs.org/wgbh/nova/doctors/oath_classical.html

    Show me anything in there about treating first and asking for payment later.

    Actually, there is mention of performing certain services for free.

    Hippocrates was setting up his kid’s educational plan, and his own retirement plan.

  • SmartDoc

    EMTALA is not just an unfunded mandate, it is a violation of the 14th Amendment to the US Constitution, outlawing slavery.

    In particular, EMTALTA violates the Due Process Clause of the 14th Amendment, prohibits depriving persons (individual and corporate) of life, liberty, or property without certain steps being taken.
    .

    • EMTALA

      I understand the point about slavery, but the bottom line is it isn’t slavery. It’s a condition of participating in Medicare/Medicaid.
      This would also be moot if there was universal coverage and is becoming less important with the expansion of Medicaid coverage.

      • Smart Doc

        Of course EMTALA is slavery. Ask any surgeon called at 4AM to provide free care at high liablity risk.

        • rwatkins

          No, that’s complying with staff rules that you’ve agreed to. If you don’t like it, take it up with the hospital and ask them to pay you. They’re using your free labor to keep their ERs open.

          • http://fertilityfile.com IVF-MD

            It IS slavery. Here’s the litmus test. The two counter-arguments that try to dance around the fact that this is slavery cite “It’s a condition of participating in Medicare/Medicaid.” and it’s “complying with staff rules that you’ve agreed to”.

            Fair enough. Then morally, people should be free to open up a small mom-and-pop facility that does not take any of the Medicare/Medicaid funds and that sets their own rules that that they will only treat patients who are members of their group. They can choose to treat non-members out of charity if they wish but are not forced to.

            There is nothing at all charitable, noble nor altruistic about giving up your own body, your own time or your own private property if it is coerced by threat of you being locked up in a cage and you are not allowed to do it voluntarily and willingly out of the kindness of your heart.

  • http://www.aneurysmsupport.com/ Mike

    In my job more than a few young people work for me. Even though our company offers health insurance most do not buy it and several are very honest when asked why. If they get sick, they can go to the ER and get treatment free, or at least have no out of pocket expenses at the time. I suspect that collection efforts would likely be unproductive as these young people hope from job to job and often move out of the area all together. Seems to me that it is very unfair to the physicians and the hospital.

    • Vox Rusticus

      Job to job, your 1099s and W2s follow you. Along with that would follow the IRS and its powers to collect federal taxes, by garnishment if necessary.

      • http://www.aneurysmsupport.com/ Mike

        True Vox, but not all states allow garnishment-Texas for example as I recall-and others, like my own state of Illinois, have certain criterion (must earn a certain amount of money, etc) on whose wages can be garnished and when. Often too, the actual cost to collect the payment would exceed the funds collected.

  • Marc Gorayeb, MD

    Facial laceration? Bad example. emergency physicians should be fully capable of repairing most facial lacerations. At least most of the ones I see. And emergent cholecystectomy? Please…

  • http://www.BocaConciergeDoc.com Steven Reznick MD FACP

    When I began practicing in 1979 my hospital requried all active staff members under 55 years old to take ER call in rotation with the other physicians in their department for all patients seen in the ER who required admission. Patients seen , treated by the ER and released were referred to your office for followup of their acute illness.
    I would say 50% of the patients you were called upon to treat and admit had no insurance and were indigent. You treated them and called in consulting help when needed with your colleagues realizing that they were not getting paid either. It was considered part of your professional responsibility. As a physician you knew very well that the consulting physician would be calling you to see patients they needed seen by a general medical doctor but who were without financial or insurance resources and you were returning the professional courtesy while doing something good. This system allowed you to work with physicians and physician groups outside your normal referral patterns and you actually got to know and practice with a wider circle of practitioners. If you were impressed by the service delivered you showed your gratitude by sending that physician or group patients who had insurance or could pay the bill. If a physician did not come in to meet his ER responsibilities because the patient was indigent or uninsured your staff privileges were suspended or terminated by the Medical staff elected governing body.
    This changed with the introduction of managed care and patient and physician panels. Doctors would refuse to come in to see a patient who was not on their plan. They were not disciplined because the hospital might not be compensated by the insurer if the hospital did not have a doctor on call who exclusively represented their plan. Once the system failed to discipline doctors for not living up to their responsiblity it completely broke down.
    I believe the federal mandate evolved after patients showed up at an ER , required care and the hospital could not provide it because doctors would not come in or were not represented in that specialty on the staff. If the hospital attempted to transfer the patient, no one accepted them in transfer.
    I can not say that I enjoyed getting up at night to care for a chronic alcoholic in the DTs or a GI bleeder with esophageal varices or a patient covered in charcoal and emesis from a drug overdose but it was part of the job I signed on to and it had to be done well ! I like to get paid too for my services. I do feel that some of the complaining and whining however is way over the top. Yes it would be outstanding to get a liability immunity for providing pro bono care that meets the community standard. Beyond that I believe that we in the profession through selfishness and greed have created the problem.

    • Vox Rusticus

      That was a time before all carriers ratcheted down payments, so that offsets of the costs of non-paying patients could be found in one’s paid work. Not anymore either: not from Medicare or private insurance, while the costs of practice have only gone up. Now, the ED is the place where one’s practice is exposed to loss and liability and it really contributes very little to growing a practice and finding the new patients that allow a practice to flourish.

  • ninguem

    Dr. Reznick, I’ll go one-up on that. The hospital where I started practice, had a rule where the private docs had to cover the hospital’s fee clinic.

    The rule was, as a condition of privileges, you had to spend a certain period of time out of your office, and work in the hospital’s free clinic, based on specialty.

    That system was starting to break down. The clinics were becoming populated by the retired docs, doing it for free. I rotated in one, as a medical student. All that’s gone now, completely. And not that many docs of retirement age want to stay in the grind of practice, and keep themselves at the mercy of the trial bar.

  • PAULMD

    @911 Doc

    Great submission! I dream of the day when the 800 lbs “not for profit” hospital bullies get their heads handed to them! Their threats are no longer veiled when they tell you that they “own” all of the primary care docs and that they will hire their own specialists and cast your practice into the abyss after some 26 years of providing free care for them and generating revenues for them.

    I welcome the investigations of the not for profit status of these “charity hospitals” and hope that they are exposed and punished for what they really are….good old fashioned racketts!

    It ain’t volunteering when it is mandated AND uncompensated. It’s just sugar coated slavery.

  • http://www.BocaConciergeDoc.com Steven Reznick MD FACP

    We can either define covering the ER as part of the responsiblity of being a physician on staff or leave ourselves at the mercy of the government to step in and make its own set of regulations as they now have. Covering the ER was a way to integrate within the medical community and community hospital setting . When unattached patients looking for a doctor showed up in the ER, if you had done a professional job and interacted well with the ER staff they referred the patient your way. The majority of referrals however came from your colleagues who got to know you helping to care for paying and non paying patients. If you took care of those referrals well they sent in their friends and neighbors via word of mouth which is clearly the best and most productive form of advertising.
    Practicing in South Florida I am all too aware of the medical malpractice liability issues many of which arise in the Emergency Department. I still maintain that it is the greed and selfishness of our colleagues that contributed greatly for the need to pay doctors to cover the ER and to the state and federal regulations guaranteeing care.

  • PAULMD

    @ Reznick

    You are entitled to your beliefs. Clearly you have given the subject much thoughtful consideration. We may not agree on the final solution but I respect your processes in determining your position. Good luck in your continued endeavors in medicine. Good people can, and often do, come to differing conclusions.

    • http://www.BocaConciergeDoc.com Steven Reznick MD FACP

      Thanks. I certainly respect your concern and opinion. Best of luck.

  • solo dr

    Another twist happened for about a month at my local hospitals. ER docs would admit complicated orthopedic cases to the primary care doctor and then have the primary care doctor call in the specialist. The specilist usually comes in and states the patient is too complicated for local care and should go the big city hospitals. I would then have to transfer the patient in the middle of the day to an academic center. When I get an admission call from the ER docs, I now verify that the specialist on call is willing to see and care for any specialty care, prior to accepting the admission.

  • PAULMD

    @solo dr

    It gets better.

    Where and when I trained if a transfer were going to be authorized from one facility to another, the TREATING PHYSICIAN that the transfer was predicated on must consent to the the acceptance of the transfer.

    We have had several instances where circuitous transfer admissions had been perpetrated between outside ER or outside hospital floor to our hospital via the “accepting hospitalist” on our behalf. The “behalf” being my department which is not owned by the accepting hospital.

    They then consult us emergently as if the patient was via our own ER. You ARE doing it the right way. Thank you.