Reprinted from REPORT ON MEDICARE COMPLIANCE, the nation's leading source of news and strategic information on Medicare compliance, Stark and other big-dollar issues of concern to health care compliance officers.
In a case that involved a patient’s death, Vanderbilt University Medical Center and one of its physicians entered into separate monetary penalty settlements for alleged violations of the Emergency Medical Treatment and Labor Act (EMTALA). The OIG alleged that an on-call Vanderbilt neurosurgeon refused to accept the transfer of a patient from Caldwell County Hospital.
Vanderbilt University Medical Center agreed to pay $45,000 to resolve its liability under the so-called patient dumping statute and neurosurgeon Matthew Pearson agreed to pay $35,000. The event that led to the settlements unfolded on April 8, 2008, when Caldwell County Hospital “appropriately” contacted Vanderbilt “to transfer G.K., an individual with an unstable emergency medical condition,” according to the settlements. OIG alleges that Vanderbilt “refused to accept G.K. for neurosurgery evaluation and treatment when [it] had the capability and capacity to treat him.”
In the Pearson settlement, OIG alleged that while he was on call to provide neurosurgery services, Pearson declined to “accept G.K. for evaluation and treatment.” Shortly after, OIG says, the patient was transferred to another hospital and died.
Physicians may not realize that an alleged EMTALA snafu may blow back on them as well as the hospital. “From an enforcement perspective, one thing we commonly see is that a lot of doctors don’t understand they might have personal liability under the statute when they don’t treat someone in the emergency department or when they are on call and are asked by another hospital to provide specialized services…but they refuse an appropriate request for assistance,” Sandra Sands, OIG senior counsel, tells RMC.
Sands says OIG has a “constant flow of [EMTALA] cases,” which stem from patient, hospital and other complaints. With the Vanderbilt incident, CMS investigated the complaint and “already determined there was a violation of the hospital’s EMTALA obligation and sent it up for enforcement action,” Sands says.
Vanderbilt declined to comment on the EMTALA case through its spokesman, John Howser. According to Vanderbilt’s website, Pearson, who got his medical degree at Johns Hopkins, is an assistant professor of neurological surgery at Vanderbilt Medical Center. His clinical focus is pediatric neurosurgery. RMC’s calls to Pearson were referred to Howser, who didn’t respond to follow-up calls requesting comment from Pearson.
“The unique thing about this is they actually obtained a civil money penalty settlement against the neurosurgeon on call at Vanderbilt” in addition to a settlement against the hospital, says Bob Anderson, with Krieg DeVault in Schererville, Ind. It’s not unprecedented for physicians to get in trouble for this. An orthopedic surgeon taking call at a Chicago hospital settled a CMP case in 2009 for failing to show up at the emergency department to treat a patient with an open leg fracture that required surgery (RMC 4/6/09, p. 1).
In a nutshell, EMTALA requires hospital emergency rooms to screen all incoming patients and to stabilize those with emergency medical conditions regardless of insurance or financial status. Emergency rooms must maintain a panel of on-call specialists 24/7, and patients can be transferred to other facilities only if there is a medical reason for the transfer.
On-call coverage is an EMTALA compliance predicament. If on-call physicians don’t come in when summoned, they may put patients in danger, not to mention inviting malpractice lawsuits and EMTALA violations. At the same time, hospitals may not do a good job of educating their physicians about EMTALA and ensuring they have effective policies and procedures.
Some hospitals are paying physicians to ensure they show up for call. Whether or not on-call physicians are paid, hospitals can discipline physicians for failure to treat emergency patients through medical staff bylaws, Anderson says. They can be reprimanded or face more serious action, culminating in a report to the National Practitioner Data Bank, he says. When hospitals pay physicians for on-call coverage, “you might have a breach-of-contract case” when they refuse to come in, Anderson says.
And of course, the physician and hospital could face OIG. When it considers pursuing a CMP case against either or both, Sands says, OIG takes into account a number of factors. For example, why didn’t the patient receive a medical screening exam and stabilizing treatment? What were the circumstances of the transfer or failure to accept a transfer? Did the hospital have appropriate policies and procedures? Is the hospital’s financial situation mitigating? Is there a previous history of violations, and if so, what were the nature and circumstances of the violations? “We look at the facts and circumstances of every case referred to us,” Sands says. “We look for cases we think are more egregious or involve important issues in terms of the enforcement and compliance of doctors and hospitals under EMTALA.”
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