Legal Eagle Eye Newsletter for the Nursing Profession (6)5 May 98

 

Quick Summary: EMTALA says an appropriate transfer to another medical facility is a transfer in which the transferring hospital provides the medical treatment within its capacity which minimizes the risks to the patient’s health and, in the case of a woman in labor, the health of the unborn child, and -

   In which the receiving medical facility has available space and qualified personnel for the treatment of the individual and has agreed to accept transfer of the individual and to provide appropriate medical treatment.

   The transferring hospital must send to the receiving facility all available medical records or copies related to the emergency condition for which the individual has presented, including test results and informed consent forms, and the name and address of any on-call physician who has refused or failed to appear within a reasonable time to provide necessary stabilizing treatment.

   A transfer must be brought about through the use of qualified personnel and transport equipment as needed, including the use of necessary and appropriate life support measures during transfer.

   If an individual at a hospital has an emergency medical condition which has not been stabilized, the hospital may not transfer the individual unless -

   The individual or a legally responsible person acting on the individual’s behalf in writing requests transfer to another medical facility after being informed of the risks of transfer and of the hospital’s obligations under the EMTALA, and -

   A physician has signed a certification based on the information available at the time of transfer that the medical benefits of treatment at another facility outweigh the risks to the individual from transfer to another facility (or in the case of a pregnant woman in labor, the risks to the unborn child).

   The physician’s certification can be prepared and signed by a nurse if a physician is not available.

   The physician’s certification must contain a summary of the risks and benefits upon which the certification is based. 42 U.S.C. 1395dd (1997 Amend.)

 

   According to a recent ruling from the United States District Court for Puerto Rico, the Emergency Medical Treatment and Active Labor Act (EMTALA) applies only when an individual comes to a hospital emergency department seeking care for an emergency medical condition or experiencing labor which at the time of presentation is an emergency situation.

   The EMTALA does not apply to a baby born in the hospital, if the mother at the time of admission to the hospital had normal onset and progression of her labor and was not an emergency case when she arrived at the hospital. The court looked at the rulings of other courts in the Federal judicial system and at recent law review commentaries to reach this conclusion.

   The baby was born after a completely normal labor at a hospital that did not have a neonatal intensive care unit. The physician noted the baby had aspirated meconium, and arranged to transfer the child to a hospital with a neonatal intensive care unit an hour’s drive away. The baby’s father, however, knew a physician with staff privileges at a different hospital closer nearby. He pulled strings and got that hospital to accept the baby and the baby was driven there. However, due to complications which could not have been addressed quickly enough at the first hospital, the baby died.

   The parents sued the first hospital for not following any of the procedures mandated for a patient transfer to be deemed an "appropriate transfer" as defined by the EMTALA.

   The court ruled the EMTALA did not apply to the baby because the baby’s emergency arose in the hospital after the mother’s non-emergency admission. Thus there was no legal requirement for the hospital to jump through the EMTALA’s hoops in order to transfer this baby to neonatal intensive care at another facility. Lopez-Soto v. Hawayek, 988 F. Supp. 41 (D. Puerto Rico, 1997).