Printer-friendly format

In 1986, the patient anti-dumping law commonly known as EMTALA brought fundamental change to hospital emergency departments. Most of those changes have long since become standard operating procedure. Screening exam, emergency medical condition (EMC), stabilizing treatment, and appropriate transfer are all EMTALA terms that are part of the vernacular of every ER today. However, after more than 20 years, hospitals and their medical staffs are still grappling with the unsettled issues surrounding the deceptively simple requirement that hospitals “maintain a list of physicians who are on call for duty after the initial examination to provide treatment necessary to stabilize an individual with an emergency medical condition.”

The “on-call list” is a resource of the emergency department and is implicated in defining the hospital’s capacity to conduct a proper EMC screening exam in the ER and in defining its ability to treat an EMC that is diagnosed. This in turn may determine whether the hospital can appropriately treat or transfer the patient, and whether in making these choices the hospital complies with EMTALA. The dilemma is illustrated by the patient who presents to the ER with a suspected ruptured appendix, a time-sensitive surgical emergency, and the ER physician is not a surgeon. If there is a bad outcome during transfer or otherwise, questions will arise as to whether a surgeon was or should have been on-call, and what procedures were in place to assure the hospital met its “on call list” obligations.

The key, of course, is defining the obligation, and the blanket requirement to maintain the list provides no guidance. The uncertainty surrounding the requirement and the underlying EMTALA obligations create inevitable tension between hospitals and their medical staffs, the former being best protected by maximum, multi-specialty on-call coverage, while the latter bear the burden of actually providing that coverage. A 2005 ACEP study indicated that 73 percent of U.S. emergency departments reported inadequate specialty coverage. The same study noted that the percentage of the total U.S. physician population over 45 years of age had increased from less than 50 percent in 1975 to more than 61 percent in 2005, indicating a larger percentage of the physician population may be exempt from call obligations through senior medical staff status.

When CMS released the final EMATLA interpretive regulations in November 2003, they gave little of the hoped-for guidance on this issue. The regulations stated only that the on-call list must be maintained “in a manner that best meets the needs of the hospital’s patients who are receiving the services required” by EMTALA. Hospitals and their medical staffs are left to work out the details as a local matter, subject of course to potential fines, liability and exclusion from Medicare if an enforcement agency disagrees with the chosen local approach. The regulations also require hospitals to maintain written policies to provide for situations when a particular specialty is not available through no fault of the physicians, including when physicians are allowed to take simultaneous call at other facilities or to schedule elective procedures while on call.

The comments accompanying the regulations confirm that an on-call physician can be on call at more than one facility at a time and can schedule elective procedures while on call. The comments also note that determining the proper approach to the on-call list requires that all factors be considered, including the number of physicians in a specialty, the frequency of need for that specialty, back-up policies and procedures when a specialty is not covered and the availability of other services in the hospital’s geographic area. CMS also emphasized the importance of keeping local EMS services informed of call coverage variances. The comments make clear that there is no “magic number” of physicians in a given specialty that would trigger required 24/7 call coverage. The comments also note that exempting senior medical staff members from call is not improper per se.

The comments indicate that a physician can see his own patients and can see patients who request him without being considered to be “on-call.” However, the comment immediately thereafter notes that responding “to calls for patients with whom they or a colleague have established a doctor-patient relationship, while declining calls from other patients, including those whose ability to pay may be in question…would clearly be a violation of EMTALA.” While this series of comments seems a bit difficult to reconcile, the import appears to be that a physician who is “on call” must take all patients, while one not on call can see his own patients and those who request him without being considered de facto “on call.”

The Mississippi experience in the wake of more than three years under the EMTALA final regulations appears to have been what CMS contemplated: an inherently local approach that depends on the attitude and circumstance of the hospital, its medical staff and its patient base. This can mean that hospitals with more stringent call requirements for their specialists effectively support those with less stringent call requirements, particularly in trauma service specialties. However, if hospitals in a given region work together and coordinate their approaches, the work load can be more evenly distributed and patient care and EMTALA compliance can be more readily assured.

Mark Hodges is an attorney with Mississippi-based Wise Carter Child
& Caraway.


August 2007

Tags:

None

Login and voice your opinion!