By Peter Galvin, MD
There once was a time when hospitals would “dump” patients, that is, transfer a patient, usually to a city or municipal hospital, when the patient had no insurance, inadequate insurance, or required expensive treatment. That stopped in 1986 when Congress passed the Emergency Medical Treatment and Active Labor Act, or EMTALA. The law applies to hospitals that participate in the Medicare and Medicaid programs for hospital payment, which is essentially 100% of hospitals. Under the law, a hospital ER may not transfer a patient to another ER unless the patient requires a service or treatment that the sending hospital does not provide. In addition, the consent of the patient/family is required. Also, if an inpatient (patient already admitted) requires transfer to another facility, either because the sending hospital does not provide a service the patient needs, or the patient or family requests a transfer, the patient cannot be sent to the receiving hospital’s ER but must be sent to an inpatient bed and must have a doctor who agrees to manage the patient’s care. As you can imagine, this makes transferring a patient from one facility to another much more difficult.
A related topic is discharge against medical advice (AMA). Occasionally, a patient or family may insist that the patient be discharged despite the treating physicians’ recommendation that the patient remain hospitalized. From the patient’s perspective, this is almost always a bad idea, because it may place the patient in jeopardy of a negative medical outcome and, from a legal perspective, it may protect, at least partially, the treating physician(s) from being sued for malpractice. Also, most people are not aware that under CMS guidelines, if a patient leaves a facility as an AMA discharge and is admitted to another facility within 30 days for the same diagnosis, Medicare and/or Medicaid will not cover the second hospital’s bill, making the patient liable for that bill.
When a facility is facing a patient who wants to sign out AMA, the amount of documentation that is required is significant. Documentation must include evidence that the patient was counseled not to leave, was made fully aware of the risks and consequences of such an action, and the patient must sign that they are aware of the risky situation they are placing themselves in. The facility must document that the patient/family was capable of making an informed decision and not delusional, etc. Even though the discharge is AMA, the hospital must provide a discharge plan, including making reasonable provisions that the patient will have access to required medications for a minimum of 30 days (i.e., insulin).
Some states grant physicians legal immunity in AMA discharges. Also, the “assumption of risk” doctrine holds that plaintiffs cannot recover damages arising from risks they knowingly and voluntarily assume. Most AMA discharge forms include a liability waiver that the patient must sign. In the case of a complaint that an AMA discharge violated EMTALA, the investigation focuses on the reason for discharge and whether the facility made efforts to keep the patient from leaving. Federal guidelines urge hospitals to document the discussions with patients leaving AMA and “take all reasonable steps to secure” written informed refusal of ongoing treatment.
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