Legal and Ethical Obligations to Provide Care

Kim C. Stanger

(BSU Ch. 11, 4/1)

This presentation is similar to any other legal education materials designed to provide general information on pertinent legal topics. The statements made as part of the presentation are provided for educational purposes only. They do not constitute legal advice nor do they necessarily reflect the views of Holland & Hart LLP or any of its attorneys other than the speaker. This presentation is not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of law to your activities, you should seek the advice of your legal counsel.

Ethical Duty to Provide Care

Hippocratic Oath“I will treat without exception all who seek my ministrations, so long as the treatment of others is not compromised thereby.”

AMA Principles of Medical Ethics“A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care....“A physician shall support access to medical care for all people.”

Legal Duty to Provide Care

• Providers are not buses!

Legal Duty to Provide Care

• General rule: providers may refuse to accept person as a patient and provide care.

• Duty to treat depends on provider-patient relationship.

Provider-Patient RelationshipPatient seeks care from physician +

+Provider consents to provide care =Physician-Patient relationship

Consensual or contractualrelationship

Legal Duty to Provide Care

No duty to provide care

Duty of CareNo duty to

provide care

Provider-Patient Relations Created

Provider-Patient Relation

Terminated• Express consent• Implied from

situations

Liable for breach of duty of care, e.g.,• Malpractice• Negligence• Lack of consent• Abandonment

Good Samaritan Statutes

• Do not require providers to render care.

• Do provide limited immunity to providers who voluntarily render care.

• Cannot sue persons “who in good faith, being at, or stopping at the scene of an accident, offers and administers first aid or medical attention to any person or persons injured in such accident unless it can be shown that the person or persons offering or administering first aid, is guilty of gross negligence in the care or treatment of said injured person or persons or has treated them in a grossly negligent manner.” (IC 5-330)

Legal Duty to Provide Care• Exceptions: situations in which law requires

providers to render care:– EMTALA– Anti-discrimination laws– Contract, grants or other situations in which

provider has agreed to provide care• Charity care obligations• Hill-Burton Act obligations

– Public hospitals or similar facilities• Enabling statute may require facility to provide care

– Cannot abandon patient once the provider-patient relationship is established.

Emergency Medical Treatment and Active Labor Act (EMTALA)

• 42 USC 1395dd

• 42 CFR 489.24

Sercye v. Ravenswood Hospital• May 16, 1998, 15-year old

Sercye was shot twice while playing basketball.

• Taken to Ravenswood Hospital, but staff refused to come out to treat him. Sercye eventually died.

Hospital and staff had no common law duty to treat Sercye because no provider-patient relationship established.

EMTALA RequirementsApplies to hospitals that participate in Medicare.• If hospital has an emergency dept, hospital must

provide:– Emergency medical screening exam,– Stabilizing treatment for emergency conditions,

and/or– Appropriate transfer of unstabilized person.

• If hospital has specialized capabilities, hospital must accept transfer of unstabilized person.

• Cannot delay exam or treatment to inquire about payment.

• Must post signage and retain required documents.

EMTALA Penalties• Termination of Medicare provider

agreement and exclusion from Medicare and Medicaid.

• Civil penalties– Hospitals: • Less than 100 beds: $25,000 per violation• 100+ beds: $50,000 per violation

– Physicians: $50,000 per violation.• Hospitals may be sued for damages.– Individuals who suffer personal harm.–Medical facilities that suffer financial

loss.

EMTALA Application• For hospitals with a dedicated emergency

dept (“DED”), EMTALA is triggered if:– Person “comes to the emergency

department”,– Request is made for emergency care,

and– Person is not already a patient at the

hospital.• For hospitals without a DED (e.g., specialty

hospital), EMTALA is triggered if:– Hospital has specialized capabilities, and– Hospital receives request for transfer

from another facility.

On Hospital Property• “Comes to the emergency department” =–Main campus of hospital, including parking lot,

sidewalk, and driveway.– Area within 250 yards of hospital that is owned by

the hospital, e.g., provider-based department.– Off-campus facility with a DED.– Hospital-owned ambulance.

• Not considered part of hospital for purposes of EMTALA– Areas or structures that are not part of the hospital,

e.g., physician offices, RHCs, SNFs, or that do not operate under the hospital’s provider number.

– Off-campus facility without DED.

Diversion• Cannot divert inbound ambulance unless

hospital is on diversionary status. (Arrington v. Wong (9th Cir. 2001))

• Diversionary status = lack staff or facilities to accept additional emergency patients.

• Capacity depends on— – Staff, equipment, and supplies– Number and availability of beds– Past practices in accommodating additional

patients in excess of occupancy limits (e.g., moving patients to other units, calling in additional staff, borrowing equipment, etc.)

EMTALA Medical Screening Exam

Medical Screening ExamAppropriate medical screening exam =• Performed by qualified medical personnel

(“QMP”).• Applied in non-discriminatory manner.– Does not differ based on payment status,

condition, race, national origin, disability, etc.• Sufficient to allow QMP to determine, with

reasonable clinical confidence, whether emergency medical condition exists.– Depends on presenting signs and symptoms,

and hospital’s capabilities, including on-call physicians.

Emergency Medical Condition• A medical condition manifesting itself by

acute symptoms of sufficient severity (including severe pain, psychiatric disturbances, and/or substance abuse) such that the absence of immediate medical attention could reasonably be expected to result in– Placing the individual’s health in serious

jeopardy;– Serious impairment to bodily functions; or– Serious dysfunction of any bodily organ or

part.

Emergency Medical Condition:Pregnancy

• In the case of pregnant woman having contractions, either—– Inadequate time to effect safe transfer to another

hospital before delivery; or– Transfer may pose a threat to health or safety of

woman or unborn child.• Labor = process of childhood beginning with latent

or early labor and continuing through delivery of placenta.

• Woman experiencing contractions is presumed to be in labor unless a QMP acting within scope of practice certifies false labor after reasonable period of observation.

Medical Screening Examination• If medical screening exam reveals no

emergency medical condition, then EMTALA ends.–May transfer or discharge the person.

• If medical screening exam reveals emergency medical condition, then hospital must provide:– Stabilizing treatment, or– An appropriate transfer.

EMTALA Stabilizing Treatment

Stabilizing Treatment• If medical screening exam reveals an

emergency medical condition, hospital must provide either:– Stabilizing treatment within its capabilities.• Such care necessary to assure, within

reasonable medical probability, that no material deterioration of condition is likely to result from or occur during transfer from facility, or• For pregnant woman, delivery of child and

placenta.– An appropriate transfer to another facility.• Transfer = transfer to another facility or

discharge.• EMTALA ends once the patient is stabilized

or admitted as inpatient.

Stabilizing Treatment• Hospital must provide stabilizing treatment

within its capabilities.– Physical facilities, equipment, and

services.– Staff, including on-call staff.

• If patient is stabilized, hospital may admit, discharge or transfer.– EMTALA ends once patient is stabilized.

• If hospital is unable to stabilize the patient, hospital must effect an appropriate transfer.

EMTALA Appropriate Transfers

Transfers• If patient is not stabilized, hospital may not transfer or

discharge the patient unless:– Either one of the following—• Person or representative requests transfer, or• Physician certifies that benefits outweigh risks;

and– Transfer is “appropriate” under regulations.

• Transfer = Movement outside hospital at direction of hospital personnel, including discharge.– Not if person leaves the hospital without permission.– Not movement within or between the same hospital.

Transfers: Patient Request• Patient or their legally authorized

representative may request transfer.• Hospital must inform patient regarding:– EMTALA rights; and– Risks of transfer.

• Patient should complete written request for transfer that documents:– Reason for requested transfer, and– Patient is aware of risks and benefits of

transfer.

Transfer: Physician CertificationHospital may transfer patient if:• Physician signs written certification:– Summarize the reason, risks and benefits of

transfer; – State that, based on info available at time,

the medical benefits outweigh risk; and– Sign the certification form.

• If physician not present in emergency department, – QMP may consult with physician and sign the

certification;– Physician must countersign.

Appropriate TransferTransfers of unstable patients must be

“appropriate”, i.e.,• Transferring hospital provides treatment within its

capability to minimize risk of harm to patient. • Transferring hospital contacts receiving facility to

confirm that receiving facility has available space and qualified personnel, and facility agrees to accept the transfer.

• Transferring hospital sends:– Relevant records available at the time.– Name on-call physician who failed to respond, if

any.– Additional records as soon as practicable.

• Transfer effected through qualified personnel with proper equipment, including life support measures.

Patients Who Refuse Exam, Treatment or Transfer

Hospital must—• Offer exam, treatment or transfer.• Document the exam, treatment or transfer

that was refused.• Document that risks and benefits were

explained to patient.• Document basis for refusal of transfer.• Take reasonable steps to secure written

informed refusal.• If patient refuses to sign, document refusal.

Do Not Delay or Discourage Exam or Treatment

• Cannot delay exam or treatment to inquire about payment.

• Cannot seek preauthorization from insurer until after you have conducted exam and initiated stabilizing treatment.

• Do not suggest to patient that:– They should leave.– They could obtain services elsewhere at

less cost.– Insurance may not cover treatment.

Recipient Hospital Responsibilities• Hospital with “specialized capabilities” must accept

transfer if it has capacity, e.g.,– Specialized equipment or personnel (mental health,

NICU, burn unit, trauma, regional referral center, etc.).

– Special circumstances at transferring facility (“serious capacity problem”, mechanical failure, no beds, no call coverage for specialty, etc.).

• May refuse transfers if:– Transferring hospital has similar capabilities, but be

careful.– Transferring hospital admitted the patient as

inpatient.– Transfer from outside the United States.

Reporting Improper Transfers• Receiving hospital must report to CMS or

state surveyors if it has reason to believe that it has received improper transfer of patient.– Other hospital “dumped” the patient.– Other hospital refused care.– Other hospital sent unstabilized patient

without an appropriate transfer. • Liable for EMTALA penalties if fail to timely

report.

On-Call Responsibilities• Hospital must maintain on-call list of

medical staff members available to provide screening exam and stabilizing treatment.

• If on-call physician fails to respond to call, hospital and on-call physician may be subject to EMTALA penalties.

• If hospital transfers patient because on-call physician failed to respond, hospital must send on-call physician’s name to receiving facility.

EMTALA SignHospitals with DED must post EMTALA sign:• Sign must:– Advise patients of EMTALA rights.– State whether hospital participates in

Medicaid.– Be written in clear and simple terms.– Be in languages understandable by

population served by hospital.• Post sign where it will likely be seen by:– Persons entering emergency department.– Persons waiting for exam and treatment.

EMTALA Sign

Discrimination Statutes

Discrimination Statutes• Civil Rights Act, Title VI• Americans with

Disabilities Act• Rehabilitation Act• Affordable Care Act• State laws

• Often arise in context of communication barriers

Generally apply to• places of

public accommodation, or

• recipients of federal programs.

Communication BarriersPatient or personal rep:• Speaks a foreign

language.• Suffers a disability that

impairs effective communication.– Hearing impaired.– Visually impaired.– Other impairment?

Disability discrimination

National origin discrimination

Communication BarriersGerena v. Fogari (NJ 2008)– Physician declined to pay $200 per visit for

interpreter requested by deaf patient, claiming that he could not afford interpreter.

– Physician communicated with patient through family members.

• Held: Jury found violations of anti-discrimination statutes– $200,000 damages– $200,000 punitive damages– $400,000

Discrimination Statutes• Provider must generally make reasonable

accommodations (e.g., interpreter services or auxiliary aids) for:– Persons who do not speak English.– Persons with a disability that impairs

effective communication.• Provider generally cannot– Require patient to supply their own

interpreter or auxiliary aid.– Charge patient for cost of the interpreter

or auxiliary aid.– Refuse to provide care even though cost

of interpreter or auxiliary aid may exceed cost of care.

Limited English Proficiency (“LEP”)• Executive Order 13166 (8/00) and HHS Guidance

(8/03) require recipients of federal financial assistance to take “reasonable steps” to ensure meaningful access to persons with limited English proficiency (“LEP”).– Interpreters– Translations of key documents.

• 8/03 HHS Guidance: depends on 4 factors1. Number or proportion of LEPs likely to

be encountered by provider.2. Frequency of contact with LEPs.3. Nature and importance of services to

LEPs.4. Cost and resources available to

provider.

Persons with Disabilities• Providers may not discriminate against persons

with a disability, i.e., – A physical or mental impairment that

substantially limits one or more major life activities, including but not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

– A history or record of such an impairment; or– Regarded as having, such an impairment.

Persons with Disabilities• Discrimination includes but is not limited to:

– failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford services to individuals with disabilities, or

– failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, or otherwise treated differently than other individuals because of the absence of auxiliary aids and services,

unless the entity can demonstrate that:– person poses a direct threat to health or safety of

others,– action would fundamentally alter the nature of

service being offered (e.g., provider does not typically provide the treatment sought), or

– action would result in an undue burden.

Auxiliary Aids• Providers must furnish appropriate auxiliary aids

and services where necessary to ensure effective communication with:– Persons with disabilities.– Companions with disabilities, including family

member other person with whom the provider should communicate under the circumstances.

• No auxiliary aids required if effective communication exists without them. See Board of Education v. Rowley, 458 U.S. 176 (1982) (sign language interpreter not required when lip reading or other accommodations are sufficient).

Auxiliary Aids• “The type of auxiliary aid or service necessary to ensure

effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.”

• “A [provider] should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication, but the ultimate decision as to what measures to take rests with the [provider], provided that the method chosen results in effective communication. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.

(28 CFR 36.303(c)(1)(ii))

Patient Abandonment

Legal Duty to Provide Care

No duty to provide care

Duty of CareNo duty to

provide care

Provider-Patient Relations Created

Provider-Patient Relation

Terminated• Express consent• Implied from

situations

Liable for breach of duty of care, e.g.,• Malpractice• Negligence• Lack of consent• Abandonment

Patient Abandonment

• Abandonment = failure to give patient sufficient– Notice that you are ending relationship– Time to find a new practitioner– Care until the patient can transfer to a

new practitioner• Penalties– Lawsuit by patient for damages– Action against license (See IC 54-

1814(15); IDAPA 22.01.03.037.02)

Avoiding Patient Abandonment• Can terminate relationship for any legitimate

reason or no reason, but not bad reason.• Legitimate reasons– Failure or refusal to pay bills– Breakdown in relationship or communications– Disruptive conduct– Noncompliance with treatment– Missed appointments– Etc., etc., etc.

• Bad reasons– Discrimination

Avoiding Patient Abandonment• Factors to consider before ending patient

relationship– Patient’s current health needs– Availability of alternative care– Basis for termination (e.g., legitimacy compared

to patient’s health care needs)– Whether patient is in protected class– Documentation supporting termination– Alternative actions• Warnings• Patient care conference• Behavior contract

Avoiding Patient Abandonment• If termination necessary and appropriate:– Notify patient in writing and perhaps

orally– Give sufficient time to transfer care• Depends on patient’s condition• Usually 30 days

– Facilitate transfer of care– Provide necessary care in the interim

Avoiding Patient Abandonment• There may be situations that justify

immediate termination without advance notice, e.g.,– Danger to patient, staff or others– Criminal misconduct

• Be careful before invoking immediate termination; consider:– Patient care needs– Availability of alternative sources for

treatment– Statutory obligations, e.g., EMTALA or

state statutes– “What would a jury think?”

Assignment

• Activity 11.1: analyze claims against Community General Hospital