Q: I am on an ad hoc committee at my hospital looking into an EMTALA problem that we are trying to head off. We are a very small facility and the ER only offers limited services. There are two orthopedists in town who take calls but they both do primarily adult cases. Any complicated pediatric cases get referred to a larger center which is about 30 miles away. In this case, an 8-year-old had his arm badly injured in a car wreck, with multiple fractures and a large skin flap. The orthopedist on call was contacted by the NP in the ER but when the case was explained to him he refused to come in because he said that he already knew that this was beyond his level of expertise and that it would also need vascular and plastics (which we do not have available) and that the case should be immediately transferred. The NP asked him to come in anyway but he said that he had nothing to add because there was not going to be any on-site care. The child was transferred successfully but the NP reported the matter to administration and now we are investigating.  I don’t see that the doctor was wrong – it would have been malpractice for him to try to treat this child and EMTALA permits transfer to obtain care.

A: Actually, there was a violation of EMTALA here.

EMTALA was created to prevent the peremptory dumping of patients because of an inability to pay for care. However, it does not require keeping a patient despite the inability to provide the care that they need. What is required, though, is to stabilize the patient as much as possible prior to transfer.

What “stabilized” means in this setting is that, within reasonable medical certainty, “no material deterioration” should occur from or during the transfer

The hospital fulfills that duty to stabilize through its agents, but the NP was not able to provide that level of care to this child and required the presence of the orthopedist. It was therefore the duty of the orthopedist, through his coverage relationship with the hospital (probably part of his privileges contract), to come in and assess the situation and to do what he could to ensure that the child was actually stable for transfer to the next hospital even though he could not render definitive treatment.

When he, as the hospital’s agent, refused to come in at all, potentially leaving the patient in a unstable condition for transport, the hospital incurred an EMTALA violation. He incurred a personal EMTALA violation as well, which can carry a $50,000 fine that malpractice insurance would not cover.

The hospital and the doctor also incurred negligence liability separate from EMTALA if the child sustained damage that could have been prevented by stabilization for the transport process.

It sounds like this matter has stayed within the institution and that there will not be an external investigation, but it should be treated as a canary in the coal mine.  The committee should set up a clear rule that when a physician is called by the ER that they must come in for stabilization even if they will not be rendering definitive treatment.