Summer 2011

From the President
Melissa Platt, MD, FACEP

Want to Cut Costs in the ER? Pass Medical Liability Reform.

National view:
Nearly half (44 percent) of almost 1,800 emergency physicians responding to a poll report that the biggest challenge to cutting costs in the emergency department is the fear of lawsuits. Even more respondents (53 percent) said the main reason they conduct the number of tests they do is the fear of being sued.

"Medical liability reform is essential to meaningful health care reform," said ACEP's President, Sandra Schneider, MD, FACEP. "Without it, health care costs will continue to rise. Estimates, on the costs of defensive medicine, range from $60 billion to $151 billion per year. That dwarfs total expenditures on emergency care, which at $47.3 billion in 2008 represented just 2 percent of all health care spending."

In addition, more than two-thirds (68 percent) of poll respondents said there has been no improvement in the number of medical specialists willing to take calls in the emergency department since health care reform legislation passed last year. Many specialists cite the fear of being sued as one of the top reasons they will not treat emergency patients. Emergency care is considered high-risk for liability, because patients are more seriously ill or injured and physicians often don't have access to their medical histories. The on-call specialist shortage has been linked to emergency department deaths and permanent injury.

Kentucky view:
2009 ACEP Kentucky Report Card  
Medical Liability Environment Rank 47th Grade F
Several efforts to enact medical liability reforms in Kentucky by passing legislation or amending the state constitution have failed. As a result, the state continues to lack a medical liability cap on noneconomic damages, liability protections for EMTALA-mandated emergency care, requirements for case certification by an expert witness, or expert witness rules requiring the witness to be of the same specialty as the defendant.

KACEP President's View:
The time to act is now! The KACEP board is revving up its engines to tackle medical liability reform related to EMTALA-mandated emergency care. Stay tuned. More to follow…

The Power of the Medical Record
Dr. Daniel J O'Brien, MD, FACEP
Chair, EMS Committee

• http://www.jems.com/article/patient-care/electronic-crossroads

• http://www.nemsis.org/index.html

• http://dictionary.reference.com/browse/para-

• KUISMA M , Vayrynen T, Hiltunen T, Porthan K, et al Effect of introduction of electronic patient reporting on the duration of ambulance calls. Am J Emerg Med. 2009;27:948-55

• http://www.ems.gov/pdf/nemsac/june09/AttachF_NEMSAC_OversightAnalysisR

Hillbilly Heroin- The Pain Pill Epidemic
Ryan A. Stanton MD 
President Elect
Public Relations Committee Chair

So...prescription drug abuse and trafficking is the hot medical media story right now. I think we are all well aware of the problem in our state. A recent article in the Lexington Herald-Leader focused on this topic and quoted some pretty sobering facts.

• 90% of oxycontin prescriptions are written in the state of Florida. 
• As of 2002, 25% of oxycontin related deaths took place in eastern Kentucky.
• 98 of the top 100 prescribing physicians for oxycontin are in Florida.

Further review of the "White House Drug Policy" website noted a survey that showed that 56% of abused pain medications were obtained "free from a friend or relative". They also note that from 1997 to 2007, treatment admission for prescription painkillers increased more than 400%. The internet isn't helping either. In 2007, 187 websites were found that dispensed narcotic pain medications. Of those, only 16% required a prescription with 53% clearly stating "no prescription needed."

Prescription drug abuse and drug seeking behavior are an epidemic in this state and I don't have a shift go by that doesn't involve pain seeking behavior. In fact, it almost seems that most of our populations no longer consider Tylenol or ibuprofen a pain medicine. Unfortunately, from an ER practitioner standpoint, it is difficult in this era of a huge focus on "customer satisfaction" to confront this issue in our departments. I recently read a correspondence from an ER group from another state in which they encouraged liberal usage of narcotic pain medications in an effort to boost their satisfaction scores. Though I am not a zero narcotic prescription physician, I am also not willing to compromise the ethics of our profession to boost a score. These medications play a key role in the control of acute pain conditions.

I think it is our charge as the front line of healthcare to lead this fight against prescription narcotic abuse. I think there are three ways we can start stemming the tide of abuse. 
 

1. Evidenced based usage and prescribing of narcotic based medications.
2. In ER teaching. We need to educate our patients as to why we will, or will not give narcotic medications. This needs to involve research that shows what has been proven to be the most efficacious therapy (example: Tylenol and physical therapy for chronic back pain).
3. We must be spokesmen for our profession to the public. Our members need to be active in their area, especially those of you in Eastern Kentucky, through the media, legislature, and any other group where we can get the message out.

Reimbursement
Dr. L. Barrett Bernard, MD, FACEP
Chair, Reimbursement Committee
Chair, Emergency Preparedness

• The SGR (Sustainable Growth Rate) again will reduce Medicare rates of reimbursement by 29.5% unless Congress intervenes by December 31, 2011. The Permanent Administrator, Dr. Donald Berwith, has called for a permanent fix and states that the final budget should include a solution. The AMA and many state medical associations have encouraged President and Congress to repeal the SGR as part of the deficit reduction negotiations.
• The Independent Payment Advisory Board (IPAB) is an unelected panel with the task of cutting Medicare expenses. The 15-member board is appointed by the President and confirmed by the Senate. By 2015, it must cap Medicare spending at a rate of per capita gross domestic spending; plus1%. The board can make changes to Medicare reimbursement without the approval of Congress, but is largely limited to meeting cost goals by cutting costs. Most medical organizations have called for repeal of this board.
• On the local level, Gov. Beshear has set up three managed care organizations to provide medical services to the areas of Kentucky outside of Louisville and surrounding counties which already have Passport. These organizations will be operational Oct.1, 2011 for three years with the purpose of saving $1.3 billion to balance the Medicaid budget. The state will be heavily recruiting providers to deliver this care.

As you may surmise, all the plans for deficit reduction are involving healthcare expenditures. Now is the time to become involved individually and thru your medical societies to positively influence this process. Continued delivery of the best care in the world is dependent on these efforts.

DISASTER PREPAREDNESS
The current heat wave is a public relations opportunity for emergency physicians and emergency departments. Communities are always eager for information about unusual situations and this heat wave presents many risks to the general population but especially to the elderly. Take this opportunity to inform your community and thus promote your Emergency Department as an involved citizen of your community.

Primer on: The Emergency Medical Treatment and Active Labor Act (EMTALA)
Devin Faragasso, MD, FACEP
Chair, Education Chair

Learning Objectives:
1. To provide and overview of the EMTALA legislation and how it applies to the emergency
     physician.
2. Create a framework for the current interpretation of EMTALA, and the correct procedure for
     transferring patients.

Overview:
In 1986, Congress enacted EMTALA as part of the Consolidated Omnibus Budget Reconciliation Act (COBRA). Often referred to as the "anti-dumping" law, its intent was to ensure public access to emergency services regardless of a person's ability to pay. "EMTALA is an unfunded mandate that does not require health insurance companies, government agencies, or individuals to pay for the requisite services i."

EMTALA states that all presenting persons must have a medical screening exam to evaluate for an emergency medical condition (EMC) and that the hospital is obligated to stabilize the patient within its ability prior to transfer. EMTALA defines an emergency medical condition as a "condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part." Pregnant women are specifically addressed: any pregnant patient who is having contractions is defined by EMTALA as unstable. She is considered unfit for transfer until delivery of the fetus and placenta.

What is the Medical Screening Exam (MSE)?
The scope of the medical screening exam must be of sufficient depth as to reasonably intend to determine whether an emergency medical condition exists. This includes all necessary testing and on-call services within the capability of the hospital. Recent judgments have ruled that EMTALA was violated when an inadequate screening exam failed to diagnosis an emergency medical condition. While triage is not considered a medical screening exam, EMTALA does not specify that a physician must perform the exam. If a hospital board and by-laws states so, the exam may be performed by another "qualified medical person" such as a physician assistant or nurse practitioner. If an emergency condition is diagnosed, then the hospital is obliged to provide treatment until it resolves or is stabilized. Most importantly, examination and treatment cannot be delayed to inquire about payment or insurance coverage.

If the hospital does not have the capacity to treat a particular emergency condition, then an "appropriate" transfer of the patient to another hospital must be done in accordance with the EMTALA provisions. Hospitals with specialized capabilities are obligated to accept transfers from hospitals that lack such capacity.

EMTALA defines the emergency department as the entire hospital campus, which includes a 250-yard zone around the main building (but does not include non-medical buildings). Any persons presenting with an emergency condition within this zone falls under EMTALA.

What are the penalties for EMTALA violations?
Physicians, including on-call specialists, found in violation of EMTALA can liable to up to $50,000 per citation. Hospitals may also be fined $50,000 ($25,000 for fewer than 100 beds), but "gross and flagrant", or repeated violations, could result in exclusion for the Medicare program. Exclusion from Medicare often results in bankruptcy and closure of that hospital. Additionally, receiving facilities that have suffered a financial loss as a result of an inappropriate transfer can sue for reimbursement. Furthermore, hospitals may also be sued in civil court for personal injury resulting from EMTALA violations.

Citations are evaluated on a case-by-case basis, and are subject to a great deal of judicial interpretation.

Transfers
Patients may only be transferred under EMTALA for medical necessity, and they must be in "stable" condition. EMTALA defines "stable" as "no material deterioration of the patient's condition is likely to occur during transfer". However, an unstable patient can be transferred if the following criteria are met for an "appropriate transfer":

1. A higher level of care, or specialized services are required and the patient has been stabilized to the extent that the transferring facility is capable;
2. The risks of transfer are outweighed by the presumed benefits, and this is documented;
3. The receiving facility has accepted the transfer and this is charted;
4. Written consent to transfer from the patient;
5. The patient is accompanied by all medical records; and
6. The transfer employs appropriate medical vehicle and qualified personnel and equipment (private passenger vehicles are not permitted unless the ambulance has been refused in writing).

Patients cannot be transferred who are potentially unstable if the referring hospital has the capabilities and the physical capacity to treat the patient. In addition, hospitals with the capacity to care for a patient may not decline a transfer if that transfer is appropriate. "Where the hospital has the ability to utilize on-call personnel, it must do so to accommodate the patient. Where the hospital has handled patients in excess of its stated capacity on prior occasion, it is required to accept the patient. Where the hospital could use step-down beds or early discharge to accommodate a patient, it must do so. Patients must be accepted without regard to means or ability to pay, or the third-party payer involved."
A patient's request for transfer to another institution can supersede the hospitals obligation's, but the transfer must still be "appropriate" as stated above, and the reason for the patient's request must be documented.

Who is exempt from EMTALA?

1. Admitted patients;
2. Patients without an emergency condition;
3. Out-patient procedures, labs, radiographic studies ordered the primary care physician;
4. Persons requesting specific tests;
5. Scheduled out-patient visits;
6. Blood tests for law enforcement; or
7. Ambulances on hospital property for the sole purpose of meeting a helicopter (unless the paramedics request assistance in managing the patient).

Who pays for EMTALA?
We do. In May 2003 the AMA stated that emergency physicians on average provided $138,300 of EMTALA-related charity care each year. Physicians in other specialties provide, on average, about six hours a week or EMTALA mandated care, on average incurring $25,000 a year in bad debt.

Pitfalls:
The patient told me she needed pre-authorization from her HMO to be seen in the Emergency Department. She asked if I wouldn't mind giving them a quick call, before we got started. Can I do this for her?

No. While the 2003 revisions makes it possible to obtain pre-authorization in certain circumstances, these are exceedingly complicated so that making such a call is very risky and not worth considering.

My on-call consultant never answered my pages. After several hours of trying, and with the patient deteriorating, I had no choice but to transfer the patient. I couldn't have done anything wrong, as I had no choice.

If it becomes necessary to transfer a patient due to the refusal or failure of an on-call physician to come in, then the Emergency Physician must list the name and address of the of the on-call physician in the transfer documentation. This may result in the hospital and on-call physician being cited for an EMTALA violation. Not providing this information will likely result in the citation of the Emergency Physician, hospital, and on-call doctor. Hospitals must maintain a well-displayed on-call list by physician name (not just the group). The only excuse for not appearing is being actively engaged in surgery or actively managing a patient who is in crisis (scheduled patients and elective surgeries do not apply).

The patient just seemed intoxicated. So I discharged him to jail. He didn't complain of anything. How was I to know he had a subdural?

While this may have been fine, screening of intoxicated and psychiatric patients must be sufficient to rule out underlying traumatic, toxic, or organic causes that may be contributing to the presenting symptoms or apparent state.

A 19 year old, prima-gravid, dilated 2 centimeters, having contractions 10 minutes apart showed up in my ED in the middle of the night. Her family practice doctor had told her to go the nearest ED, but our hospital does not have any OB services. I called the nearest hospital, which does have OBs on-call, but they refused the transfer saying it would be an EMTALA violation. They said I could not transfer the patient until the fetus and placenta were both delivered. I hadn't delivered a child in over 10 years, and didn't know what to do.

Transfer in this case is not necessarily an EMTALA violation. The patient should only deliver in your ED if the risk ratio is not outweighed by the benefits of transfer to more specialized care. In a hospital without OB services, the ACT is clear that the risk/benefit ratio must consider the pregnant patient and the unborn child. In this case there should be adequate time to safely transfer to a nearby facility. This is true of all emergency medical conditions (i.e. trauma, cardiac, neurosurgery, etc), when the patient requires services not within the capability or capability of the referring facility. Depending on the clinical situation, the patient might not ever be stabilized at the current facility. Your medical record should reflect this risk/benefit analysis, and the informed consent of the patient being transferred. Also, appropriate medical transport should be provided.

I just found out the hospital got an EMTALA citation for a patient that I didn't even transfer. They complained I didn't provide translation services, but I speak some Spanish and though I understood him pretty well.

Another provision of the Act required the ED, and the hospital as a whole, to comply with translation services for persons with limited English proficiency. This includes translation services, signs, and translated documentation.

Review Questions
Regarding EMTALA, which of the following is false?
a) A stable obstetrical patient is one that is defined as by having the fetus and placenta delivered.
b) Translation services may be required to comply with the law.
c) An uninsured patient cannot be transferred, even if they request this and sign consent.
d) An on-call specialist who refuses to come-in and help stabilize a patient may be in violation
    of EMTALA.

EMTALA pertains to?
a) Only uninsured patients.
b) Outpatient procedures and tests.
c) A pregnant patient who is not in labor.
d) All ambulances on hospital property.
e) All transfers of patients diagnosed with an emergency medical condition.

When is transfer "appropriate"?
a) When the patient has a medical condition that is beyond the capability of the referring hospital,
     and is accepted at another hospital that does have this capability.
b) Patients who request transfer and signs consent stating they understand the risk and benefits.
c) A stable patient.
d) All of the above.

Answers: 1) c; 2) e; 3) d.

Billingham, Graham. EMTALA. American College of Emergency Physicians Website.
iFrew, Stephen. Executive EMTALA Summary. 2008
Other References
Booth, Ashley. The Emergency Medical Treatment and Labor Act. ACEP News, Vol 27; 8. Aug 2008
U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services Web Site.
Social Security Act: Section 1867 – Examination and Treatment for Emergency Conditions and Women in Labor.

Government Affairs
Wes Brewer, MD, FACEP
Chair, Governmental Affairs

In the last edition of the newsletter the topic of medical liability reform was raised. Continuing that discussion we will focus on EMTALA based reforms. A number of states have passed or are considering passage of some degree of liability reform targeted to emergency care providers and on call specialists. Given the unique nature of emergency care, a solid case can be made granting special considerations. By its very nature ours is a high risk profession. We frequently do not have the luxury of extensive patient histories and relationships and must make rapid decisions. Other incentives for passage of these reforms is the increasing scarcity of on call specialists willing to take high risk cases from the emergency department. In states that have implemented these reforms, the number of specialists willing to be on call has gone up as has the number of physicians relocating to those states.

Part of the equation also is that the average emergency physician in this country provides over $140,000 per year in uncompensated care mandated by EMTALA. In most instances, this legislation provides additional liability protections for emergency care provided either for the duration of a patients pre-stabilization care or for a set time limit (such as 24 hours). In addition to emergency department care, additional protection would apply to consultants such as trauma surgeons, obstetricians caring for the high risk drop in with no prenatal care, and possibly interventional cardiology. We should have many natural allies within the medical community that would benefit, however, many in the house of medicine are generally opposed to "special legislation." Remember, such reforms are not designed to excuse egregious behavior but to recognize and compensate for the high acuity and high risk of our work.

In other states the type of reforms have varies but generally fall into two basic categories; either placing a cap on non-economic damages or applying a higher legal standard of negligence. The unhappy truth is that both these approaches have been tried and failed in the past in Kentucky. I'm not saying that it will not happen but it is a big rock to push uphill. We will need a huge commitment from every member if anything good happens -- if not now, when? My new favorite Chinese proverb is "a man can sit on a chair for a long time with his mouth open waiting for a roast duck to fly in."

Remember that there are also bills to address medical liability at the federal level, but due to the dysfunctional state of our government progress is slow. HR 157 provides for EMTALA based reform by classifying emergency care providers as members of the public health service subject to federal tort claims act rather than state laws. None of the members of the Kentucky congressional delegation have signed on as co-sponsors so it would be helpful if you would write your congressman asking them to support and co-sponsor this important legislation.

EMF Chapter Challenge-Join your Fellow ACEP Chapters!

ACEP Chapters play a critical role in supporting our emergency physicians' practice, education, advocacy efforts, and patient care. Chapters also assist the specialty by expanding the development and growth of their members' research. Supporting research that enhances our member's ability to provide life-saving care is the goal of the One Dollar Chapter Challenge. This simple program gives Chapters the opportunity to support emergency medicine research through EMF by donating $1 for each of their members. This $1 per member would provide EMF with more than $29,000, enough to support both of the Medical Student Grants and all three of the Resident Research Grants this year! Although each of these grants is small, vital research often has humble beginnings. Many of our past grantees have now gone on to receive multi-million dollar federal and foundation grants for their emergency medicine research.

Thus far Connecticut, Georgia, Tennessee, and Massachusetts Chapters have met this challenge, and the Government Services, New York, and Alabama Chapters have expressed their intent to do so. We thank them for showing their leadership in advancing emergency medicine research.
 

EMF encourages each chapter to consider meeting this challenge. Your support will give a good start to future emergency medicine researchers and will help improve patient care for us all. If you have any questions, please do not hesitate to contact Holly Hull Miori, EMF Manager, or call (800) 798-1822 x3216. 

EMF Announces Nearly $400,000 in EM Research Funds

The Emergency Medicine Foundation is pleased to announce nearly $400,000 in available research funds this year. Grant applications will be available in mid-August and deadlines for all grants are January 9, 2012. To download an application, go to the website.

• EMF 2-Year Fellowship, $150,000
• EMF/EMPSF Patient Safety Fellowship, $75,000
• EMF Career Development Grant, $50,000
• EMF Health Policy Grant, $50,000
• EMF/ENA Foundation Team Grant, $50,000
• EMF/EMRA Resident Grant, $5,000 (up to 3 available)
• EMF/SAEM Medical Student Grant, $2,400 (up to 2 available)  

Clinical News

Genes Play Bigger Role in MI Than Stroke
People whose mother and father have both had a myocardial infarction are six times more likely to have one than are those without a parental history, according to a large, population-based study.

Strokes, on the other hand, do not seem related to genetic predisposition.
Read the entire article online.

Trauma Capillary Leak Syndrome Carries High Mortality
Traumatic-induced capillary leak syndrome is the name being given to a newly described, highly lethal disease process in critically injured trauma patients. As yet, there is no effective treatment, but some studies have been conducted to better understand its characteristics, with an eye toward ultimately finding a way to prevent it.
Read the entire article online.

Welcome New Members