Federal investigators are increasingly charging physicians in "patient dumping" cases, government statistics show.
Since the Emergency Medical Treatment and Active Labor Act (EMTALA) was passed in 1986, there have been only 15 settlements against doctors. But 13 of those have come in the last four years.
Physicians who refuse to treat emergency room patients or fail to respond to hospital emergency room requests when on call face increased exposure to liability stemming from patient-dumping laws, government and industry sources said.
That's because doctors make the medical decisions to screen, treat or transfer patients in hospital emergency rooms.
Still, the number of physician settlements pales in comparison with the number of hospital settlements.
"Hospitals are getting it," said Jessica Bowman, a lawyer with HHS' inspector general's office. "But physicians haven't so far. We want them to get it; that's why we're turning up the heat. I think you'll start to see more cases against physicians."
To receive Medicare funds, hospitals must screen and stabilize patients who go to emergency rooms for treatment. Refusing to do so for purely economic reasons, called patient dumping, is forbidden under EMTALA, which extends responsibility beyond hospitals to emergency room physicians and doctors on call at hospital emergency rooms.
Physicians and hospitals that violate EMTALA also risk exclusion from Medicare and other government health insurance programs and fines of up to $50,000 per violation.
Thomas Herrmann, the inspector general office's chief of administrative litigation, said there have been only 15 settlements with doctors accused of patient dumping since the law was enacted 13 years ago.
More than 4,900 U.S. hospitals staff emergency medicine departments, employing about 30,000 emergency physicians, according to the Academy of Emergency Medicine.
Tens of thousands of other physicians, mostly specialists, serve as on-call physicians and are required to respond to requests for emergency treatment.
Herrmann said that as recently as three years ago the inspector general's office lacked the resources to pursue dumping charges against physicians.
"Now we have three times the resources we had before HIPAA (the 1996 Health Insurance Portability and Accountability Act)," Herrmann said.
The inspector general's staff of lawyers has increased to 18 from six in 1997, and several are dedicated to patient-dumping cases, he said.
Herrmann said the most common physician violators of EMTALA are emergency room doctors seeking prior authorization from managed-care organizations before examining or treating patients and on-call doctors, often specialists, who fail to show when called in for emergencies.
He said in the past two years, total EMTALA settlements have exploded from 13 in 1997 to 53 in 1998 and an estimated 60 this year. Settlement amounts have risen to $2.3 million from 1997 through 1998, compared with $1.45 million for cases settled from 1986 through 1996. The increases can be attributed to the increased enforcement and number of settlements.
Five EMTALA cases are in administrative litigation before federal administrative law judges assigned to HHS.
The two hospitals and three physicians in administrative litigation have refused to settle the EMTALA charges and are fighting the government. The hospitals are Tooele (Utah) Valley Regional Medical Center and St. Anthony Hospital in Oklahoma City.
The inspector general's theory, which has been successfully tested in court, is that hospitals act through their employees and agents, including emergency physicians and doctors on call. If those agents cause a violation, the hospital is also liable.
The hospitals where the three physicians were charged have settled patient-dumping charges with the inspector general. The doctors have not.
"We're proposing to exclude the three doctors from Medicare and Medicaid and issue civil monetary penalties," Herrmann said. "In all three cases against the doctors we think the behavior is gross and flagrant." Herrmann pointed out that no final decision has been made and the charges remain allegations.
The two hospitals in administrative litigation also face civil monetary penalties, but the inspector general lacks the authority to seek exclusion.
Sidney Wolfe, M.D., consumer health advocate and co-founder of Public Citizen Health Research Group, said the heightened focus on physicians is a good idea.
"It's nice that they're finally starting to do it (charge physicians who violate EMTALA)," said Wolfe, whose group tracks EMTALA enforcement.
"Given that there's a law that hasn't been adequately enforced, it's laudable that they're now finally enforcing it," Wolfe said. "With 45 million Americans without health insurance, patient dumping is going to become a bigger issue."
Hospital emergency medicine directors said most physicians who work in emergency rooms are aware of the law.
"They (EMTALA violations) have been a problem," conceded Robert Rothberg, M.D., the site director of emergency medicine at New York University Medical Center.
The 704-bed teaching hospital saw more than 15,000 emergency patients in 1997, the most recent year for which hospital statistics were available.
Rothberg, who teaches a session about EMTALA for emergency medicine residents at the hospital, said that as more physicians realize that they and the hospitals they serve face more liability, the problem should diminish.
"The government hasn't been pushing this area very much yet," Rothberg said. "But I think now that it is, there will be increased attention to it. No physician wants to be slapped with a $50,000 civil monetary penalty or face exclusion."
The exclusion is seldom applied, though. "Everything in our authority is aimed at changing behavior," said Alwyn Cassel, a spokeswoman for the inspector general's office. "We're not there to punish."
Robert McNamara, M.D., chief of emergency medicine at Philadelphia's Temple University Hospital and president of the Academy of Emergency Medicine, said government regulators have drifted from the original intent of the law: preventing patient dumping for economic reasons.
"It's gone way beyond that," he said.
McNamara contended that doctors are making reasonable medical decisions for legitimate medical reasons, but the government is misinterpreting those decisions, ascribing financial motivations.
Ironically, McNamara said, emergency physicians are dedicated to caring for the uninsured and disenfranchised.
"We're supportive of efforts to help these people," he said. "We've been given a mandate to care for everyone who comes in using whatever resources are available, but there is no guarantee that we will be paid for it."