USA TODAY Dec. 23rd: “Woman dies while being kicked out of hospital”

If you were that hospital – whether justified or not – how much damage would this headline do to your reputation? And then, what if it gets dragged up several more times with headlines about CMS EMTALA citations and possible termination from Medicare? And then, periodic headlines as the law suits drag through the courts with verdicts and appeals?

In the headline case, the allegation is that a woman with a history of respiratory problems presented to a Florida hospital for respiratory distress. We don’t know the details of what MSE and testing were done, but the ED determined the patient was stable and discharged the patient. The patient, however, felt that she needed further treatment.

The published report indicates that when the patient would not leave, the ED summoned police and had the patient arrested for trespass.She was reportedly charged with disorderly conduct, handcuffed, and escorted out of the hospital. En route to the squad car, the patient collapsed and was then returned to the ED where all attempts to resuscitate her proved ineffective.

COMMENT: Different coast of the US, different patient, but the same results as the King-Harbor incident several years ago. In that case, the hospital died as a result of the publicity and CMS EMTALA citations. The California hospital closed and re-opened after more than 5 years. Is this Florida hospital about to face the same thing?

Recent CMS citations for EMTALA violations have resulted from similar situations – patients being arrested in the ED. The problem is not the arrest per se, but the fact that the hospital allowed the patient to be taken away without completing of the MSE and necessary care. Typically, these patients were patients with actual medical issues but were acting out or unmanageable in some way, but those facts were deemed insufficient to allow the hospital to ignore their EMTALA duties, according to the CMS citations.

Put simply, if the patient is refusing care and acting out, arresting them and removing them MIGHT be an option, depending on their decisional capability and a lot of other facts.

When the patient WANTS treatment and acting out, you are on dangerously thin ice – especially if the patient has an adverse outcome. From the EMTALA perspective, you should be prepared to demonstrate a thorough MSE, including testing and consults, and show that the patient’s condition, if any, has been “resolved” such that there is no reasonable likelihood that they will deteriorate following discharge. And, yes, transport to jail is a discharge and therefore by EMTALA definition, it is also a transfer.

I am not passing judgment on whether or not the Florida hospital handled this case correctly or incorrectly under malpractice or EMTALA standards, because I do not have the facts. I can say, however, that whether this hospital was in the right or in the wrong, they will have to live with the consequences for a long, costly period of time.

A couple of my EMTALA/risk management rules come to mind:

Rule #1: Anticipate that Murphy’s Law will apply – A problem will occur at the worst possible time in the worst possible manner. My corollary: It will occur on your shift.

Rule #7: When a patient tells you they have a problem or need care, they are right until you can PROVE and DOCUMENT that they are wrong.

Rule #8: When someone WARNS you about something and you ignore the warning, a case can move from negligence to a willful and wanton disregard for safety (gross negligence).

Rule #17: If time permits, always call the Administrator on Call or the hospital lawyer before calling the police. If time does not permit, call the police and then the Administrator on Call AND the hospital lawyer.

(And yes, I learned the utility of numbered lists from Leroy Jethro Gibbs.)