Man Found Dead In Bronx ED After 8 Hour Wait — Is It An EMTALA Violation?

A 30 year old man who walked into a Bronx hospital emergency department Sunday night was found dead Monday morning before he could see a physician. His presenting complaint was for a “rash” and the exact cause of death has not been released. The New York Daily News reports that employees blamed the death on under-staffing.

The Daily News stated that the man was found cold and rigor mortis had set in. The hospital is quoted as saying that he was triaged and checked on regularly, while quotes from unnamed employees indicated that the hospital was not correct. Full details of the story are found at http://www.nydailynews.com/new-york/bronx/man-30-dies-8-hour-wait-bronx-emergency-room-article-1.1591629

This conflict of information is not uncommon in early hours following an adverse event, but with family lawyers involved and publicity throughout NY, it is likely that a CMS investigation will commence soon. So, is this an EMTALA violation?

CMS investigates cases on a “case-by-case” basis, so the question cannot be answered with certainty, but a number of similar cases have been found to violate EMTALA in past years.

The first issue will be the patient medical record and how well it is documented. In this case, documentation can prove compliance or non-compliance with the triage and MSE requirements and lack of documentation assures a violation will likely be found.

The second issue will be the triage and follow up during the 8 hour period.

The News reports that the patient received triage vital signs and was documented as complaining of a rash. While a rash alone is not an immediate indicator of an emergency in most cases, it would take a brief physical assessment — including looking at the rash and asking questions — to make an informed triage decision even for a minor compliant. At least one other fatality of which I am aware was cited as a violation for failure to physically examine a rash, among many other issues.

Was a history taken? The News reports that the 30 year old man had a drug abuse issue. How does that reflect on the adequacy of the triage? Again documentation will be important.

CMS also requires periodic reassessment in the waiting area if the patient is not taken directly back to the treatment area for a medical screening examination. While the hospital indicates these assessments were made, employees question that fact, and employees reportedly indicated that the ED was under-staffed. The fact that the man is reported to have been in rigor suggests that the employees may be correct, but again documentation of periodic assessments could contradict that version.

The third issue will be policies and procedures. CMS will review all policies and procedures and not just those that might directly apply to this case. The result could be unrelated citations. EMTALA requires the hospital to have EMTALA compliant policies and procedures in place and the state of NY also has policy and procedure requirements that must be met in an EMTALA investigation. It is reasonable to assume that CMS will look at triage policies and procedures, reassessment procedures, and documentation issues among others.

The forth issue will be whether the lack of staffing or over-crowding was a result of chronic under-staffing or an unusual or disaster level surge of demand on the ED and whether over-load policies and procedures were present and followed.

The fifth issue will be whether the staff was trained regularly in EMTALA compliance requirements and the appropriate policies and procedures, and were quality assurance measures in place to assure compliance.

In the end, if the hospital can prove compliance, the fact that an unfortunate outcome or even an error in medical judgment occurred, EMTALA has not been violated. The burden is on the hospital to prove that — any lack of proof typically results in citation. In most cases, however, the mandatory chart audits of unrelated cases in a CMS investigation typically find other violations.

On the other hand, NYC has a huge problem with its hospital emergency departments, and reports indicate that many of the NYC hospitals operate in total disregard of EMTALA because of the massive overload. CMS has been aware of this in NYC and many other big cities across the country, and has done its best to turn a formal blind eye to issues while informally trying to improve quality and compliance. Very few of the NYC facilities and other major city hospitals across the country have been cited since I first became aware of the issue in the 1990’s. When cases such as this arise, however, CMS has little choice but to investigate and often cites violations.

So will this case end up with EMTALA citations? That awaits the findings of a CMS investigation, but what we know about the case so far makes a citation likely.