Revisiting EMTALA Obligations for Violent Patients

Much of the national discussion on health care over the past several years has been dominated by the Patient Protection and Affordable Care Act. This has forced other healthcare-related issues into the background. However, a number of recent well-publicized events have hospitals reexamining their obligations under the Emergency Medical Treatment and Labor Act (“EMTALA”).

For example, a recent video surfaced of a woman in nothing more than a hospital gown and socks, and having trouble communicating and maintaining her balance, apparently being discharged from a hospital’s emergency department on a cold evening. Jacey Fortin, Baltimore Hospital Patient Discharged at Bus Stop, Stumbling and Cold, N.Y. Times, Jan. 11, 2018. While the details of the patient’s discharge are not clear, the story was widely covered by the news media. In another recent incident, a 57-year-old woman died from a blood clot in her lungs shortly after she was discharged from a Florida hospital. See this story by Shamar Walters & Jacquellena Carrero: Florida Woman Dies After Being Removed from Hospital, NBC News, Dec. 23, 2015. According to a news article on NBC News, the woman presented to the hospital complaining of breathing problems. When she refused to leave the emergency room after the hospital discharged her, she was removed in handcuffs. She collapsed while the police took her to their car, was readmitted to the emergency room, and pronounced dead an hour later.

Even though these news stories are short on the specifics giving rise to the patient’s discharge from the emergency department, one of the EMTALA dilemmas that hospitals often face is how to handle challenging patients. Some of the most difficult types of patients in the emergency department are those that are currently (or have been in the past) violent or assaultive. When these patients arrive, often under an emergency certificate for hospitalization in a treatment facility for a psychiatric evaluation, a hospital may be inclined to not want to treat these patients because of the danger they present to other patients and hospital staff. But, when it comes to aggressive patients, EMTALA obligations turn on whether the hospital has the capacity to treat the patient. If the hospital does have such capacity but does not have a good plan in place, attempts to deal with the challenging patient may result in an EMTALA violation.

Under the EMTALA regulations, Medicare participating hospitals with emergency departments are required to provide a medical screening examination for patients who come to that emergency department. 42 C.F.R. §489.24(a)(1)(i). The medical screening examination must be performed to determine whether an emergency medical condition exists. Id. The regulatory definition of “emergency medical condition” includes psychiatric disturbances characterized by “acute symptoms of sufficient severity.” 42 C.F.R. §489.24(b). If an emergency medical condition does exist, a hospital is required to provide stabilizing treatment or an appropriate transfer. 42 C.F.R. §489.24(a)(1)(ii). Stabilizing treatment is only required if it is within the capabilities of the staff and facilities available at the hospital. 42 C.F.R. § 489.24(d)(1)(i).

If a patient has a psychiatric disturbance, the hospital’s EMTALA duty is to stabilize that psychiatric emergency medical condition if the hospital has the capacity and the capability to do so. Hospitals that have behavioral health units presumptively have this capability and capacity (that is, if a bed is open). However, many hospitals do not have forensic units, nor are they staffed to address violent psychiatric patients. Accordingly, there is an EMTALA argument that can be made that treating a violent psychiatric patient does not come within the capabilities of a hospital with a behavioral health unit.

Nonetheless, a representative from at least one CMS Regional Office indicated that the Regional Office expects all hospitals with behavioral health units to be able to handle a certain level of violence in a psychiatric patient. If a complaint was ever brought about the rejection of a patient with a psychiatric emergency medical condition, the Regional Office would have its own psychiatrist review and determine whether the violence level of the patient exceeded the behavioral health unit’s capabilities and resources. If the Regional Office psychiatrist felt that the behavioral health unit could have managed the patient, there would be an EMTALA violation.

Notwithstanding the EMTALA implications of the situation, the most important consideration is the safety of the staff of the hospital and the hospital’s patients. A more proactive approach, in which representatives from the hospital (including its security staff) sit down to discuss a method to handle violent patients in general, could be beneficial. The development of this method may be assisted by involving the local police, especially if the circumstances involve a patient or patients who have been assaultive in the past and/or have threatened to assault hospital staff in the future.

This is a very difficult issue, but a well-defined plan or policy that includes input from all those potentially involved would help in understanding the issue, achieving buy-in, complying with the law, and, most importantly, protecting staff and patients.