A Dialogue With An Emergency Physician About Health Care Reform

Not too long ago, I believe at the recommendation of Walter Olson at Overlawyered, I started reading WhiteCoat Rants (renamed WhiteCoat’s Call Room when he moved to Emergency Physicians Monthly), an anonymous blog authored by a voluble ED doctor.

I have over 300 feeds in my Google Reader, including venture capitalists, scientists, professors, economists, security professionals, and ship captains, and while I frequently read Grand Rounds, I didn’t regularly follow many practicing physicians.

So, what the heck.

I didn’t expect to comment or to debate, just get another perspective. I have my own blog in part to channel the temptation to respond when Someone Is Wrong On The Internet into a more productive form. That said, I think it’s worthwhile to chime in on another blog when I think it will add value to the discussion, which is what happened with WhiteCoat’s defensive medicine post, my response, his reply, and my sur reply.

Defensive medicine is a controversial topic made worse by the absence of good empirical data about its existence or prevalence. A GAO study in 2003 found the effect to be minimal and possibly non-existent, and I think the whole idea of “defensive” medicine is conceptually flawed, but it’s such a broad, hot-button subject that I don’t expect many minds to change one way or another over it.

I didn’t expect the same for EMTALA.

Here’s the American Academy of Emergency Medicine (AAEM):

The Emergency Medical Treatment and Active Labor Act (EMTALA) was included in the COBRA legislation of 1986. It was promulgated to combat the discriminatory practice of some hospitals transferring, discharging, or refusing to treat indigent patients coming to the emergency department because of the high cost associated with diagnosing and treating these patients with emergency medical conditions. While the Act applies to all Medicare participating hospitals, it protects anyone coming to a hospital seeking emergency medical services, not just Medicare beneficiaries. EMTALA imposes strict penalties including fines and exclusion from the Medicare program for violations of the Act. The Act imposes three primary requirements on Medicare participating hospitals that provide emergency medical services.

  • The hospital must provide an appropriate medical screening exam to anyone coming to the ED seeking medical care;
  • For anyone that comes to the hospital and the hospital determines that the individual has an emergency medical condition, the hospital must treat and stabilize the  emergency  medical    condition, or the hospital must transfer the individual; and
  • A hospital must not transfer an individual with an emergency medical condition that has not been stabilized unless several conditions are met that includes effecting an appropriate transfer.

Emphasis mine to highlight some issues.

In my view, EMTALA reflects the way that most people expect an emergency department to function. If you go to an emergency department, they will check to see if you have an emergency and, if so, will treat you until you no longer have an emergency. The outrage that follows every “patient dumping” story supports this view; it’s also no small matter that the winning Presidential candidate explicitly endorsed medical care as a “right.” (EMTALA implicitly creates a “right” to emergency medical screening and stabilizing at Medicare-recipient hospitals by permitting patients to sue if they are denied that “right.”)

I’m not surprised that emergency physicians dislike a law that requires they spend their time (and hospital resources) screening and stabilizing individuals who often can’t or won’t pay, at least not pay enough, particularly as emergency departments increasingly become the de facto primary care physicians for millions of Americans. It gives them the burden of being a first-responder without the benefit of stable salaries and guaranteed government funding.

What surprised me was the anathema was directed at the concept of EMTALA rather than the execution, even as the physicians spoke of wanting to ensure access to healthcare for all.

Just as most people expect the ED to check them out when they have a problem, most people expect that the ED will be funded in some reasonable fashion. If you have private insurance, your insurance will be billed. If you are on Medicare, Medicare will cover. If you are impoverished, Medicaid will cover, even for undocumented aliens.

But that’s not how it works in the real world. There’s a reason that an industry like “professional coding” — not even middlemen, but people who input data for use by middlemen! — exists. Health insurance companies routinely deny reasonable care already performed. Medicare reimbursements are low and difficult to process, and Medicaid is worse than Medicare and not even fully funded in the first place.

Some suggestions for reforming the economics behind emergency medicine make sense, like this one from the American College of Emergency Physicians:

Some health insurance plans deny claims for legitimate emergency departments visits, based on a patient’s final diagnosis, rather than the presenting symptoms (e.g., when chest pain turns out not to be a heart attack). Some also attempt to require preauthorization before a patient can seek emergency medical care, resulting in denied payment. These managed care practices endanger the health of patients and threaten to undermine the emergency care system by failing to financially support America’s health care safety.

ACEP advocates for a national prudent layperson emergency care standard that provides coverage based on a patient’s presenting symptoms, rather than the final diagnosis. In addition, health insurers should cover EMTALA-related services up to the point an emergency medical condition can be ruled out or resolved.

But for every specific, reasonable proposal like that, you get a complaint like this (also from ACEP):

According to a May 2003 American Medical Association (AMA) study, emergency physicians annually incur, on average, $138,300 of EMTALA-related bad debt. Approximately 95.2% of emergency physicians provide some EMTALA mandated care in a typical week and more than one-third of emergency physicians provide more than 30 hours of EMTALA-related care each week.

Sounds bad, but those figures are useless since they’re a mish-mash of several distinct problems.

What does “EMTALA-related” mean? A prior paper of ACEP’s defined “uncompensated care” and “bad debt” as any care where the physician or hospital collected less than they billed, which means every denied private insurance claim, every denied Medicare claim, and every denied Medicaid claim in addition to the totally unreimbursed care most people assume is meant by “EMTALA-related.”

Which means the “EMTALA-related” figure above conflates every single billing issue affecting emergency departments into “EMTALA-related bad debt,” even where most of it has nothing to do with EMTALA.

Combine that with self-congratulatory, self-contradictory praise like “Emergency physicians are proud to serve as an essential part of the nation’s health care safety net, open 24/7, caring for everyone, regardless of ability to pay or insurance status,” and you have to wonder if anything’s actually wrong with the system if they “proudly” follow EMTALA’s dictates yet blatantly manipulate numbers to oppose EMTALA itself.

That’s what I wanted to describe to WhiteCoat when he again raised the specter of EMTALA as the cause of several ED stories, including the closing of the ED at Northeastern Hospital here in Philadelphia. I posted a comment.

He took it to heart.

I don’t agree with his conclusions (no surprise), and a discussion on the merits is best left until later, but it’s gratifying to see that I could offer him and his readers a different perspective, just as they’ve offered me.

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  • http://supremacy.claus.blogspot.com Supremacy Claus

    I support this proposal to bring the same to the lawyer’s office. I hope you can join all doctors in supporting it.
    http://www.tortdeform.com/archives/2009/05/times_are_tough_time_for_civil.html#comment-16696
    If you have any objection, please, explain. What is th big deal anyway?

  • http://www.litigationandtrial.com Max Kennerly

    Supremacy Clause, here’s what makes your “proposal” silly. You make the act apply as follows:
    “ELRALA shall only apply to “participating law offices”. A law office that uses any services provided in a court house shall be considered a “participating law office” for purposes of this Act.”
    That’s not comparable to how EMTALA works. Doctors, doctor’s offices and outpatient facilities have zero, zilch, nada duty under EMTALA, and generally refuse patients with emergency conditions, with strict instructions the patient instead call 911. EMTALA applies only to Medicare-participating hospitals with emergency departments.
    If you want to set up a multi-trillion-dollar entitlement for legal services comparable to Medicare, establish a mult-trillion-dollar private legal insurance system, and then restrict “ELRALA” to those law offices which choose to offer “emergency” legal services, then, sure, sounds fair.
    In such a comparable situation, I have no doubt whatsoever that a number of large plaintiff’s firms and/or referral firms would set up emergency legal clinics.

  • http://madrocketsci.blogspot.com MadRocketScientist

    I love this discussion between you and WhiteCoat. It’s civil, informative, and very thought provoking.
    Thank you for engaging in it.

  • http://supremacy.claus.blogspot.com Supremacy Claus

    Thanks for returning the comments.
    Offices, emergency rooms, the location does not matter. Uncompensated care at the point of a gun violates the Thirteenth Amendment.
    You can have a $trillion program. Expect to not get paid. If you are paid, the payment will be less than your costs. You will have to raise your lawyer fees to your paying clients. Except, you will have no time for their interests. In addition to failure to pay, and underpayment, an agency will consume massive time by denying your professional decisions. These will require pre-authorizations after government lawyers have written the rules for you.

  • http://throckmortonsothersigns.blogspot.com throckmorton

    Mr. Kennerly. You are right that the offices have no obligation under EMTALA. That is true. The obligation comes from the mandated call at the hospital where you can not refuse the patient. In the same way, a client could go to the court house where an attorney would have to leave their office to see the client or accept them to come to their office. This is how EMTALA works. In regards to the Medicare/Medicaid issue and the spending. Most of the patients that I see through EMTALA are not covered by either. This is not free care, it cost you to take care of them as you must cancel your clinic of paying patients.

  • http://www.litigationandtrial.com Max Kennerly

    Throckmorton – you left a critical part out. The “mandated call” isn’t to randomly chosen physicians at random hours, but on-call physicians who have chosen to work at a Medicare-participating emergency department.
    It’s no different from a “mandated call” that each and every on-duty employee in the United States faces; if you’re on the job, and something comes in, you deal with it. Indeed, if they want to quit, they’re free to do so.
    Supremacy Claus – your analogy to slavery is facile for the reasons mentioned above. Do we call it “slavery” when truck drivers obey service hours?
    Both of you have primary concerns about adequate compensation for the service. I addressed that above in two ways. First, I think that’s a legitimate concern, but the primary point of my post was to remark at how many ED physicians recoil at the idea of EMTALA itself, regardless of adequate payment. Second, as noted in the post, the only concrete data which ED physicians have published about the impact of EMTALA is deliberately misleading, and lumps together tons of issues with no relationship to EMTALA at all. If a private insurance company denies the full billing of an ED visit, that has nothing to do with EMTALA.
    As such, it’s hard to take these vague complaints seriously. If it was such a problem, they’d make better arguments against it and not have to obfuscate the issues. Coming up with bogus analogies to “emergency lawyers,” analogies which misrepresent what EMTALA actually requires, doesn’t help.

  • http://supremacy.claus.blogspot.com Supremacy Claus

    The subject of whether the government may regulate an activity is settled. They can force you to spend an hour doing a tax return without compensation. However, those regulations have been vetted and shown to serve a good government purpose.
    What data show the EMTALA has served any government purpose outside of oppression of doctors by lawyers with armed Federal marshals to impose their wrongful power?
    Find a single patient helped by it. What was the total cost of helping that single patient if you can find one?
    Weren’t most patients forcibly evaluated run of the mill family medicine types, generating massive costs, by their calling 911 for a cough, then taking up time better spent on a paying heart attack victim.
    There is an unauthorized transfer from the paying patient to the parasitic lawyer client. That transfer of assets also violates the Fifth Amendment Takings Clause.
    I would like to see only doctors regulate the lawyer enterprise. I think they would help the lawyer profession. None of the regulations would violate the Thirteenth Amendment. Doctors would impose free legal services on all lawyers. It would just be a regulation to promote the public interest.

  • swatdtoc

    Kennerly,
    Stating that EMTALA “only applies to physicians that have chosen to work at a medicare participating ER” shows that you have little understanding of how the medical profession works. Unless you are a dermatologist or primary care doc that dumps all your inpatient work on hospitalists you don’t have any choice. Almost all specialties require that physicians have hospital privileges if they are going to be of much value to the public and provide the services that they are trained to perform (it’s hard for your surgeon to take out an appendix in the office). To have these privileges physicians must be on the ER call panel, they don’t choose to.
    As for physicians avoiding mandated call by quitting, you are right. They certainly can and they do! They retire early, they go into other lines of work, or they switch to practices that allow them to avoid the hospital (eg giving botox and performing cosmetic surgery). If you don’t think that declining reimbursement, unfunded mandated care, and out of control medicolegal liability are a problem you’re right, as long your biggest medical issues are fixing your crow’s feet and getting a boob job. Hopefully you won’t need a neurosurgeon in a hurry and find out the closest one with an available ICU bed is 300 miles away and the helicopters aren’t flying because the weather is bad.