Blood Alcohols, Labs and Minor Treatments in the ED: Is a Medical Screening Exam Required by EMTALA?
ACEP News - July 1998
By Robert A. Bitterman, MD, JD, FACEP
Hospital emergency departments serve many functions other than the evaluation and treatment of patients with true medical emergencies by emergency physicians. The emergency department (ED) is often used by police to draw blood alcohol levels on allegedly intoxicated drivers, physicians obtain lab tests or x-rays during off-hours, and hospitals provide urine drug screens on injured workers, prescription refills, allergy shots, rabies vaccinations or blood transfusions. The question is whether federal law, the Emergency Medical Treatment and Active Labor Act (EMTALA), requires the hospital to perform a medical screening examination in each of these scenarios to determine if the patient is suffering from an emergency medical condition.
The statutory language of EMTALA requires the hospital to provide a medical screening examination (MSE) to anyone who "comes to the emergency department" and "requests examination or treatment for a medical condition."
Thus, there are two elements that must be true before the hospital is obligated to medically screen an individual. (42 USC 1395dd(a).)
The Health Care Financing Administration (HCFA) and the Office of Inspector General (OIG), the regulatory enforcers of EMTALA, interpret the first element, "comes to the emergency department," to include anytime an individual is on hospital property. (42 CFR 489.24(b).) The point of this article is not to argue HCFA's logic, so assume all persons who come to the hospital for tests, x-rays, or minor treatments have presented to the emergency department. The second element becomes the critical issue: whether these persons "requested examination or treatment for a medical condition."
Notice the law doesn't read "examination or treatment for an emergency medical condition." That is the purpose of the MSE, to determine if the presenting individual's medical condition actually is an emergency, as defined by law. (42 USC 1395dd(e)(1).) In essence, EMTALA assumes all patients have a potential emergency medical condition until the hospital screens them and determines they do not.
These common scenarios can be divided into two categories: individuals requesting treatment and individuals requesting only tests. The treatment category includes allergy shots, tetanus shots, rabies vaccines, blood letting or blood transfusions, chemotherapy infusions for cancer or organ transplant rejection, reinsertion of feeding tube or Foley catheter, antibiotic injections, or narcotic injections for chronic pain syndromes such as migraine headaches. The treatment category also includes prescription refills since the patient is seeking medications obviously to treat an underlying medical condition.
The test category includes urine or serum, drug screening, UA, CBC, other routine lab tests, any x-rays and police blood alcohol draws.
Requests for Treatment. Patients requesting treatment must be given a medical screening exam. The hospital should triage, register and create a chart for them in customary fashion, as it would for any other patient. The emergency physician should evaluate the patient to determine if the patient's condition meets the definition of an emergency medical condition (EMC). HCFA and the courts will assume these patients requested examination or treatment and the burden of proof will be on the hospital to demonstrate that these patients either did not request that an MSE be performed, or that the physician's evaluation did not reveal an EMC.
Requests for Tests. Patients requesting only tests can be managed much differently. Do not put them through triage, take their vital signs, or create an ED chart. Also, do not have them sign the usual ED Consent for Treatment Forms (which could make it appear that they are presenting to the ED requesting examination and treatment - see the case note below.)
Instead, use separate paperwork for test patients that specifically and conspicuously evidence they did not request examination or treatment. For example, use a check box to note the important elements, "I do not request a medical screening exam to determine if I have an emergency medical condition, nor do I request treatment for a medical condition at this time. I understand that the hospital is willing to provide me with such examination and treatment should I ask for it." (Have your hospital's legal counsel draft the appropriate forms and language). The form should obtain the patient's informed consent for requested testing and the patient's signature. The hospital should keep the paperwork for at least 5 years because it may be needed to prove to HCFA or a court that the individual did not request an examination or treatment.
If the vagaries of the hospital's administration require you to make an emergency department chart to get an ID number for the lab or radiology exams, particularly in the off hours, put the suggested check box right on the chart and modify the consent form used for these patients.
Policies and Procedures. Regardless of how the hospital handles test patients, it is important to institute a written policy and procedures. Such a policy evidences the hospital's intent to provide MSEs to all who ask and also demonstrates the hospital's intent to provide other services to the community and physicians. The process of writing and adopting the policy allows the EMTALA issues to be addressed, educates the medical staff and the hospital administration on the issues, and hopefully prevents errors from occurring once implemented. Parenthetically, the responsibility for following up on these test and x-ray results rests with the ordering physician, not the emergency physicians, and that duty should be specifically noted in the written policy.
The policy should also address where patients obtain tests during normal business hours, such as in lab or x-ray, and during off hours, such as in the ED. Additionally, the policy should address how to handle an emergency condition if one results from these minor treatment or testing procedures. For example, allergy or rabies shots may induce anaphylaxis, or during blood draws the patient may become hypotensive.
Regulatory vs. Civil Enforcement of EMTALA. It is important to understand the distinction between regulatory actions and civil enforcement under EMTALA. The regulators, HCFA and the OIG, have gone on record as stating that persons coming to the emergency department for scheduled outpatient services are not considered to have requested examination or treatment from the emergency department, and therefore EMTALA does not apply.
In contrast, however, and demonstrating how the law can be used against hospitals in civil proceedings, is the case of Evans v. Montgomery Hospital Medical Center (Case No. CIV A 95-5039 E.D. Pa. May 1, 1996). In this case, the police arrested a man for driving erratically. He was taken to the hospital emergency department for a blood alcohol test that was to be used in criminal proceedings. After the blood draw the patient was escorted to jail where he was found dead the following morning. The patient's estate sued the hospital, claiming it had failed to provide the patient with an adequate medical screening examination as required by EMTALA. The court accepted this argument for two reasons. First, the decedent signed the hospital's usual ED "Consent to Hospital Examination and Treatment Form." The plaintiffs argued that signing the form was substantial evidence that the decedent sought treatment for a medical condition. Second, the patient's obvious lethargy and difficulty sitting up without assistance while at the hospital also evidenced an apparent request for examination and treatment.
Furthermore, under EMTALA the "request for examination or treatment" can be made by anyone on behalf of the patient. It does not have to come from the actual patient, a family member, or a legal guardian. So the police officer's request for blood alcohol sampling may itself be sufficient to constitute the request for an MSE.
Patients potentially intoxicated are obviously at high risk for potential harm if not provided medical screening exams. The emergency physician should be involved to assess the patient's clinical condition and the patient's competence to refuse the offered screening exam if the courts will assume that these patients have requested one.
In summary, not all patients who present to the ED must be provided medical screening exams. A hospital need only be careful in defining its scope of services and drafting and implementing its policies, procedures and consent forms to avoid potential liability under EMTALA.