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InQuickER violates EMTALA?

May 17, 2012

Many hospitals use advance scheduling of emergency department patients as a means to improve market share.

Probably the best-known company that provides such a service is InQuickER. As the name implies, patients who use the service schedule appointments to get “in quicker” for emergency department care than patients who do not use the service.

The process involves visiting the InQuickER site, finding a hospital near you that uses the service, and then scheduling an appointment to be seen in the emergency department. Below is an example of the registration screen for a hospital near me in Illinois.

The InQuickER service used to charge $15 to $25 in order to make an appointment in the emergency department. The model has apparently been changed so that patients can now make an appointment without a charge.

An article in the latest edition of the ED Legal Letter (disclosure – I am on the ED Legal Letter Editorial Advisory Board) questions whether or not the InQuickER model violates EMTALA.

Dr. Bob Bitterman from the Bitterman Health Law Consulting Group, who is one of the more knowledgeable authorities on EMTALA in this country, looks at things this way …

Since the [Medical Screening Exam] requirement is triggered upon the patient’s presentation to the ED, from that point forward, the hospital’s screening process must be the same for everyone. In the case of a patient who paid a fee to be pre-registered, that patient is seen faster upon arrival than a patient who did not pay the fee prior to arrival; therefore, in my opinion, the hospital’s use of the pre-registration system and charging a fee is clearly illegal under EMTALA.

InQuickER seems to have dropped its requirement that patients pay a fee to pre-register, though. Even so, it appears that the pre-registration process still violates EMTALA. Dr. Bitterman’s analysis continues …

[Because] the process the hospital utilizes to provide the [Medical Screening Exam] is not the same for everyone; some individuals receive preference over other individuals who present with the same or similar complaints. It is this disparate process that would lead the government entities to determine that the practice violated both the spirit of EMTALA and the letter of the law.

The disparate treatment may also be demonstrated by the fact that indigent patients are less likely to have computers, internet access, or e-mail addresses — all of which are necessary in order to use the service. Patients in higher socioeconomic classes therefore are more likely to have access to the service and are therefore more likely to get “in quicker” to the emergency department.

Note that EMTALA does not apply to the companies that provide such an emergency department pre-registration service. The InQuickER service couldn’t be sued under EMTALA. Instead, EMTALA applies to the hospitals that utilize InQuickER’s service. Therefore, in a successful EMTALA claim, hospitals could be subject to fines and exclusion from the Medicare/Medicaid programs if they use the service.

InQuickER also provides its service to doctors’ offices and clinics which do not fall under EMTALA’s rubric. Therefore, there would be no rationale to allege an EMTALA violation against offices and clinics that are not defined as “emergency departments” under EMTALA.

Hospitals that continue to use the InQuickER service take a serious risk that any bad outcome occurring in their emergency departments could very easily turn into a test case for such a claim of EMTALA violation — with significant financial repercussions and media attention.


When Your Malpractice Insurer Wants To Settle a Frivolous Claim

May 12, 2012

Thanks to Kevin MD for posting my article about dealing with insurance companies that attempt to settle frivolous malpractice cases. I have reposted the article below. The point of the article is to let everyone know that malpractice insurance companies may not have the best interests of their insured physicians at heart. Settling a claim on behalf of a physician will cause the physician to be listed on the National Practitioner Data Bank and will adversely affect the opportunities a physician has of getting staff privileges at future hospitals or of getting favorable insurance rates.


Suppose your malpractice insurance company wants to settle a medical malpractice case against you – even though the case has no merit.

In many cases, insurance policy language may allow the insurance company to do just that.

In the 2011 case of Mohan Papudesu, MD v. Medical Malpractice Joint Underwriting Assn. of Rhode Island, the Rhode Island Supreme Court allowed an insurer to settle a case on behalf of the defendant physician based upon language in the insurance policy that stated, ”The [insurance] company may make such investigation and settlement of any claim or suit as it deems expedient.”

American Medical News reports on the case. Note that the policy language allows the insurer to settle claims based on expediency, not based upon merit or upon what is in the best interests of the physician. In fact, the definition of “expedient” is an action characterized by what is opportune at the moment and which is governed by self-interest. Insurance policy language gives insurance companies the ability to act in their own interests and not the interests of the person being insured? Doesn’t seem right.

According to Michael Sarli, an attorney for Medical Malpractice Joint Underwriting Association of Rhode Island who was quoted in the AMA article, one of the other problems insurers in Rhode Island face is the holding in Asermely v. Allstate Insurance where the Rhode Island Supreme Court reportedly held that “insurers who reject settlements within the insured’s policy limits are financially responsible for subsequent trial awards exceeding those policy limits.”  However, neither the article nor Mr. Sarli presented the entire holding in the Asermely case.

The end of the Asermely holding states:

If … a judgment is sustained on appeal or is unappealed, the insurer is liable for the amount that exceeds the policy limits, unless it can show that the insured was unwilling to accept the offer of settlement. The insurer’s duty is a fiduciary obligation to act in the best interests of the insured.

In other words, a physician in Rhode Island could refuse an offer of settlement by a plaintiff attorney in a malpractice case and the insurer would then not be liable for paying the amount in excess of policy limits and there would not be an added financial risk.

Big difference between this holding and a blanket liability for refusing a settlement offer.

Another important point in the Asermely case is that insurers have a fiduciary duty to their insureds. A fiduciary duty means that the insurer must avoid situations in which the potential benefit to the insurance company is in conflict with what is best for the doctor being insured. If such a situation arises, the insurer must act only with the interests of the doctors, not with their own financial interests. It is obviously not in a doctor’s best interests to be listed in the National Practitioner Data Bank if a malpractice settlement is made on behalf of the physician, so in a defensible case, an insurer should have the duty to take all possible steps to keep such a settlement from occurring.

Attorneys also have a fiduciary duty to their clients, but there is also a potential for conflict between defense attorneys and the physicians they represent. Defense attorneys represent doctors, but they are paid by insurance companies. If the attorney goes against the wishes of the insurer, the insurer may not refer further cases to the attorney, the attorney has a potential financial conflict of interest between doing what is in the client’s best interests and risking no further referrals if the attorney does not do what the insurer wants in order to be “expedient.”

A failure of either the insurer or the attorney to act in the client’s best interests could give rise to a claim for a breach of fiduciary duty and all the damages that go along with such a claim.

Physicians should be aware of the all the underlying factors in their malpractice case and should maintain involvement in the decisions of defense counsel. Physicians should be especially concerned when depositions haven’t been taken, experts haven’t been retained, or motions to dismiss in frivolous cases have not been made. These signs may mean that the carrier has already made the decision to settle, or that the defense attorney has not given the physician’s defense the time and attention it deserves.

If a physician believes that his or her interests are not being properly represented, the physician should consider hiring an independent personal attorney to oversee the process and to provide an unbiased second opinion. The independent attorney may suggest additional discovery, more aggressive motion practice (for example, seeking to limit the issues before a jury), or a different defense attorney who does not have a potential conflict of interest with other defendants.

To make sure that their malpractice case receives the best possible defense, physicians need to understand the potential for conflicts of interest between physicians, insurance companies, and defense counsel appointed by insurance companies.

Knowing whether or not a malpractice insurance policy contains language allowing an insurer to settle a non-meritorious case against the physician’s wishes for the sake of “expediency” would also be a good idea.

Discovery violations cost med mal defendants

April 29, 2012

Women’s clinic, doctor and midwife ordered to pay $72,000 in sanctions to plaintiffs after failing to disclose requested clinic protocols to the plaintiffs during discovery. In this case, the defendants denied that such protocols existed. In a subsequent case against the same clinic, protocols were produced.

Note that these types of sanctions aren’t usually covered by medical malpractice insurance, either.

When a plaintiff serves discovery requests upon you and/or your attorney, it is generally your duty to give them everything that they ask for – even if the information is detrimental to your case.

Patients Leaving AMA

April 19, 2012

There are a lot of legal challenges involving patients who leave the hospital against medical advice.

Considerations include whether or not a patient has decisionmaking capacity and whether the patient understands the consequences of and alternatives to leaving against medical advice.

Here is the handout outlining some of the topics I discuss in the lecture I give on AMA discharges … including what the abbreviations “F/U ASAP, R/B/A disc, VU. NCT/SDT” mean and how they can help you if you are ever sued for wrongly discharging someone AMA.

Although physicians usually have an appropriate discussion of AMA issues with patients, they aren’t as good at documenting the discussions. A good article on shortcomings in physician documentation of AMA discharges titled “Emergency department discharges against medical advice” can be found in the Journal of Emergency Medicine. Although not available online, the basic gist of the article is that in a study of charts from 52 consecutive patients discharged AMA from a moderate-sized hospital, documentation showed that

  • 36% of patients understood their diagnosis
  • 44% of patients understood the proposed treatment
  • 2% of patients understood the alternative therapy
  • 57% of patients understood the consequences of refusal
  • 62% of patients were referred to follow up physician
  • 67% of charts documented patient competence

Documentation improved significantly after physicians were made aware of the deficiencies.

Oh, and for all of those people who were in the lecture and didn’t know who Sgt. Phil Esterhaus was, here’s a link to his famous catchphrase.

Medicolegal Quiz

April 11, 2012

OK, students, here’s a question that I use in my lectures which has now become a real-life situation.

Parents in Argentina were upset to find that the child doctors stated was stillborn and which had already been enclosed in a casket was … alive and crying when they went to see her.

I don’t know if the laws in Argentina differ from those in the US, but the parents stated that they plan to pursue a medical malpractice suit against the hospital. Which leads to the following question:

The outcome of a medical malpractice case against the hospital and doctors would likely be:
A. Nominal damages for the child’s pain and suffering
B. Liable for gross negligence
C. Liable for ordinary malpractice
D. Not liable because there were no damages

Answer in the comments section.

New Ways to Sue Physicians

April 9, 2012

Medscape recently published an article that every physician should read regarding new theories of liability attorneys are using against physicians. Worth a read, but you have to be a Medscape member to access it. For those who aren’t Medscape members, the highlights of the article are below.

Loss of Chance
Traditionally, this has been a theory used against physicians when cancer is initially misdiagnosed. Ordinarily the argument to counter a lawsuit for misdiagnosis of cancer is that either the physician hasn’t caused any injury (i.e. the cancer is already there, the physician didn’t do anything to cause the cancer, and the patient would still need chemotherapy and other treatment regardless of whether the cancer was diagnosed sooner or later) or that the patient hasn’t been damaged (i.e. the patient is still alive and may live a full life or alternatively that the patient would have died from the cancer regardless of when it was diagnosed).
In response to those arguments, case law has recognized a theory called “loss of chance,” meaning that the delay in diagnosis caused the patient to lose a chance at living or at not requiring surgery or whatever other treatment is necessary. For example, if the expected survival rate for early breast cancer was 80% and the delay in diagnosis resulted in metastasis where the survival rate is only 10%, the physician could be held liable for that 70% reduction in survivability. In general, the loss of chance doctrine applies only to patients who have a 50% or greater chance of improvement/survival. A patient who has a 30% chance at survival from a disease has no case if a delay in diagnosis causes those chances to decrease to 10%.
A good example where this case could apply is thrombolytic treatment of acute strokes in the emergency department. Current literature does not show that patients have greater than a 50% chance of improving after receiving thrombolytics and, in fact, a substantial minority of patients get worse from treatment. Because of the 50% rule, a loss of chance argument would likely not withstand legal challenges. Any expert testifying that chances of improvement due to thrombolytics are greater than 50% is lying and should be sanctioned.
The winds may be shifting, though. The Medscape article notes that several states, including Wyoming, Delaware, and Massachusetts, where the 50% rule is no longer applicable. Any loss of chance in those states can be potentially actionable. Doctors practicing in those states should be aware that any delay in diagnosis may be grounds for liability.

Speculative Future Damages
The article also notes the possibility of liability for alleged damages that may occur in the future. An example might be a patient who is stuck with a needle contaminated with HIV blood. Even though the patient probably won’t contract HIV, the patient may seroconvert. Therefore, a lawsuit after a needle stick may seek damages for the potential injuries and for testing to determine whether those injuries ever materialize. While some states have rejected this notion, the article notes that Ohio, Massachusetts, and West Virginia allow such cases to proceed.

Civil Rights Violations
The article cites one case of a deaf woman who alleged that her civil rights were violated because there was no sign language interpreter to advise her of her options regarding an epidural for childbirth. Ultimately, the woman’s case was dismissed.
However, note that any type of discrimination can lead to civil rights violations. In addition, restraining patients or providing treatment against a patient’s will can also lead to civil rights claims.
Civil rights claims are attractive to plaintiffs because they do not require expert testimony and because a successful claim can result in attorneys fees being awarded to the plaintiff. A civil rights claim also may not be covered by a physician’s medical malpractice insurance.

The article notes that all of these theories of liability are uncommon but are still a cause for concern.

Good to know about.





Medically Cleared?

March 25, 2012

A patient makes repeated trips to the hospital emergency department for leg pain.

X-rays and ultrasounds performed and showed no abnormalities. When she is discharged, but still has pain, she refuses to leave and is arrested for trespassing. Several hours later, she is found dead in jail.
Autopsy shows she died from pulmonary emboli and had blood clots in both of her legs.
Video from the jail (available at the link) makes the police look quite bad.

One of the issues in the case is a “Fit for Confinement” report issued by the emergency physician. The police chief stated the police “depend on [those reports] to tell us [the prisoners are] OK.”

Be careful about writing “medically cleared” on any discharge form – for psychiatric patients or for incarcerated patients.

Better wording might be something like the following:

“The patient has no manifestations of an emergency medical condition at this time, but should be re-evaluated if symptoms worsen, if new symptoms develop, or if problems occur. Emergency medical evaluations do not take the place of regular medical care.”