Death and Injury by Delay: Hidden Harm and EMTALA’s Reverse Dumping Provision

By Robert C. Patton, M.D.*

ABSTRACT

This paper reflects on the Emergency Medical Treatment and Active Labor Act’s (EMTALA) provision regarding hospitals who fail to properly accept an incoming, emergency ill patient – a process also known as “reverse dumping.” Offered as the single most important piece of legislation affecting emergency medicine passed in the last quarter century, the author explains that many EMTALA violations are due to carelessly written inter-hospital emergency patient transfer policies. He argues that these policies may result in significant patient harm through unnecessary delays in patient transfers and that such harm goes unnoticed or is hidden on many occasions. Though rare, it is through the catastrophic case which results in significant injury or death that the consequence of “reverse dumping” is revealed.

An overview of EMTALA’s origin and important provisions is followed by a discussion of the role the law of agency plays in the Act’s mechanics. The author suggests when a transferring hospital directly contacts the on-call physician at the receiving hospital, a situation of “apparent agency” is created by those receiving hospitals who continue to place their on-call, private medical staff at the forefront of the patient transfer process. This action could expose the hospital to a violation of EMTALA provisions without the hospital’s knowledge. Nonetheless, a refusal may result in sanctions, a fine, or both.  The seminal case of St Anthony Hosp. v. United States Department of Health and Human Services is explored, along with the author’s personal experience in the field of emergency medicine following the St. Anthony ruling.

The recommendations of the author to combat “reverse dumping” are preceded by a review of proffered solutions found in current legal literature. The author goes on to propose a statutory solution to the problem of “reverse dumping” by amending Arkansas’s Definition of Emergency Medical Care Act to include a new subsection dealing with the inter-hospital transfer of patients with emergency medical conditions. The Definition of Emergency Medical Care Act mirrors the mandates of EMTALA by requiring a timely medical screening exam on all patients presented to an emergency department regardless of their ability to pay.  The Arkansas Act does not address the patient dumping issues enforced by EMTALA. The establishment of a Transfer Center, either in each hospital or centralized for the State of Arkansas, is proposed as the method to ensure compliance with EMTALA and the addition to the Definition of Emergency Medical Care Act. The author argues that a transfer center would allow for the status of hospitals with specialized capabilities or facilities to be continuously updated regarding their capacity to treat emergency injured or ill patients. Likewise, the author argues the establishment of such a transfer center would eliminate unnecessary delays in a patient receiving definitive care for their time-sensitive, emergent condition.

Access the full article here: EMTALA Article

*Robert C. Patton, MD is a Fellow of the American College of Emergency Physicians and practices emergency medicine in Northwest Arkansas.   Dr. Patton is an experienced Emergency Department Medical Director and a member of the Arkansas Bar graduating from the University of Arkansas School of Law in 2012.

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