Issues in Health Care Law

Question 1.

Concern 1- BP had not made an informed decision to reject the feeding tube and did not have an advance directive in place. However, her son has firmly indicated that he believed that his mother would not want a feeding tube.

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Deontological theory:

According to AMA’s Medical Code of Ethics, 2001, “A physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights”. This suggests that it is a physician’s moral duty to provide medical treatment to the patient, thus supporting the decision to feed BP. On the other hand, Patient Self Determination Act of 1991 states that a patient’s family can decide their final care in absence of a written advance directive. In this case, BP is currently confused and not competent physically to express her wishes. Hence, her son has the right to deny any medical intervention on her behalf (GPO, 1995).

Virtue ethics:

When we analyze this concern from a virtue ethics approach, the value of filial piety in Confucianism encourages the younger generation to rescue and save their parent regardless of cost (Krishna, 2011). This evidence supports that BP should be fed. Whereas, one of the Ten Commandments in the Hebrew Bible mentions that “Honor thy father and thy mother”  [Exodus 20:12 (NIV)]. Based on this virtue, the son should honor his mother’s wishes of not wanting a feeding tube (Goldberg, 2009).

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Consequentialist theory:

A long-term decision to feed BP may negatively affect the well being of the family, in this case, it may prolong her son’s emotional distress (Nelson et al., 2015). Continued feeding can constitute a suboptimal allocation of scarce resources and time. It may also contribute to the rising healthcare cost in the country (Haycox, 2009). However, the patient has not given any informed consent for withdrawal of feeding tube and she continues to take her heart medications. Although she has limited responses, she is alive, and withdrawal of nutrition would result in death. This can be considered as an intentional killing of the patient and have legal implications for the physician and the hospital.

Concern 2- The patient was not terminally ill and using a feeding tube might sustain her life for an indefinite period.

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Deontological theory:

According to biomedical ethics, developed by Beauchamp and Childress (2001), the ethical principle of non-maleficence states that the actions of a physician should not inflict harm to others. This bioethical principle supports the case that the physician should feed BP until the end of her life. Whereas, the principle of respect for the autonomy of a patient holds that an individual has the right to make his or her own choices and physicians should respect those choices. Thus, BP should not be fed (Beauchamp & Childress, 2001)

Virtue ethics:

Hindus believe in the concept of karma and reincarnation. It means that the death of a human body does not end an individual’s life and suffering but it does the end the time period in which he can successfully improve his destiny for the next life. Hence, hastening death to be free of pain and suffering in the present life may increase suffering in the next life. This virtue supports the fact that BP should be fed to reduce her suffering in her next life (Traina, 1998). Whereas, the Unitarian Universalist Association promotes through their principles – “the inherent worth and dignity of every person”. They believe that every person has the right to self-determine their death and that withholding or withdrawing treatment has no consequences for future life (UUA, 2018). Hence, this supports that BP’s life should be ended with dignity by not feeding her artificially.

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Consequentialist theory:

Analyzing the case with a four-topic approach helps in understanding that BP’s prognosis is fair to poor. Although a decision to continue her feeding will prolong her life for an indefinite period, she would not return to a normal life. Considering her medical problems, the quality of life she would lead will be poor and will only increase her pain, suffering, and mental frustration. If BP is not fed, resources of the hospital such as healthcare professionals can channel their time to treat patients who have a better prognosis than BP, thus increasing patient welfare.

Concern 3- The impact of nontreatment on the hospital staff

Deontological theory:

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According to the ANA Code of Ethics for Nurses, “nurses must protect the patient and ensure that an impaired individual receives assistance”. This suggests that it is the nurse’s moral obligation to protect an impaired patient, thus supporting the decision to feed BP (ANA, 2015). However, the Family Health Care Decision Act of 2010 allows surrogates to take any type of health care decision based on the patient’s wishes or the patient’s best interest. In this case, BP’s son is at the top of the surrogate list and hence is legally authorized to make decisions in the best interest of BP.

Virtue ethics:

Roman Catholicism believes that hastening death interferes with God’s plan for an individual’s soul (Traina, 1998). Hence, the hospital staff would feel uncomfortable in not providing nutrition to BP. According to Matthew 5:4, “Blessed are those who mourn, for they will be comforted” (Winston & Tucker, 2011). It is difficult for the hospital staff to express their emotions while taking medical decisions, thus, failure to voice their grief will add to their emotional stress. This supports their decision to feed BP. On the contrary, Prayopavesa is a practice in Hinduism where a person voluntarily fasts to death when he believes that he has no responsibilities remaining in life and has no desire or ambition to live (Pawar, 2013). This virtue suggests that BP should not be fed, thus allowing her to die amicably.

Consequentialist theory:

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Sustaining BP’s life by feeding her artificially will lead to suboptimal allocation of resources in terms of time and healthcare providers (Haycox, 2009). This will increase the workload on providers and eventually contribute to employee burnout and dissatisfaction. Nasogastric tube feeding can also cause complications for the patient in terms of nosocomial infections (Chang et al., 2011). Hospital-acquired infections will result in no reimbursement from Medicare, thus increasing the hospital’s expenditure in providing uncompensated care (Peasah et al., 2013). On the contrary, a decision to not feed BP may cause an internal conflict in the organization if most of the hospital staff followed a common religious belief of sustaining BP’s life. Witnessing BP’s deteriorating health might also contribute to emotional stress among healthcare personnel.

Recommendation:

An ethical course of action can be determined by an analysis of the ethical frameworks and the use of the “four topics” approach described by Jonsen et al. In this case, the decision of not feeding BP will be an ethical recommendation. It is very important for physicians to understand what the patient wants from their life. Although a decision to continue feeding would increase the longevity of BP’s life, it is essential to consider the quality of life BP would lead. A bedridden life with a low chance of recovery is deemed undesirable and hence ending pain and suffering should be a priority rather than providing futile care. These resources could be diverted in providing care for patients who have a better prognosis, thus increasing the net benefit for the society. It is pivotal for the hospital to include the patient’s family and legal counsel while making the decision to not feed BP. The ethical committee should make an appropriate final decision of withdrawing nutrition after a final assessment of BP’s mental status and decision-making competency. A written informed consent from BP’s son should be recorded after making sure that he fully understands the consequences of not feeding the patient. Proper documentation and compliance with hospital policies and state laws will provide physicians and hospital immunity from any civil or criminal liability.

Liability:

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Withdrawing the nasogastric tube feeding of the patient can expose the hospital to a risk of committing both a civil and criminal wrong. However, in BP’s case, the probability of a civil liability is higher than a criminal liability. Provider- family conflicts occur frequently when the providers implement treatment contrary to the patient’s or family’s preferences, thus increasing provider’s civil liability as in the case of Leach v. Shapiro (Kwiecinski, 2005).  Laws regarding the limitations of withdrawal of life-sustaining treatment vary from state to state, hence it is essential for hospitals and physicians to be well versed with state laws (Luce & Alpers, 2000).

Question 2.

1. Under the federal law EMTALA, hospital emergency departments are obligated to medically screen every patient who seeks emergency care and to stabilize or transfer appropriately those with medical emergencies, irrespective of their health insurance or ability to pay (Pozgar, 2018). The following are the bases for FWMC’s possible liability under this law that Edward is likely to assert:

1. Failure to stabilize the patient: FWMC failed to stabilize Edward’s condition on three separate occasions. At the first instance, Edward was transferred out of the hospital in an unstable condition and he suffered a cardiac arrest. At the second instance, he was discharged to his home where his condition deteriorated, and he returned to the emergency department a few days later. Finally, FWMC ambulance transported Edward to JPS without being stabilized. FWMC violated EMTALA requirements because EMTALA states that a patient should be stabilized before discharging or transferring him.
2. Failure to provide appropriate medical screening to an emergency medical condition: At the third instance, Edward was redirected to JPS in an FWMC ambulance without being screened for a medical emergency. EMTALA states that hospital emergency rooms are required to provide an appropriate medical screening to any individual who seeks treatment to determine whether he has an emergency medical condition (Pozgar, 2018). This law is applicable if the patient is on hospital property, which includes hospital-owned and operated ambulances (CMS, 2009). Thus, legally Edward should not have been redirected to JPS. He should have been provided with an appropriate medical screening examination within the capabilities of the hospital and transferred appropriately.
3. Discharged and transferred inappropriately: At several occasions, Edward was discharged and transferred inappropriately after being falsely certified as “stable”. At the third instance, Edward was redirected to JPS after the ER medical supervisor refused to treat him claiming the absence of a pulmonologist. If FWMC provides pulmonary care and the on-call pulmonologist did not report, then the hospital is obligated to report him or her to HCFA which can subject him/her to a civil fine up to $50,000 (Zibulewsky, 2001).

In addition to the above-mentioned liabilities for violating EMTALA, Edward can also ask FWMC for compensatory damages for the permanent health injuries caused to him due to the negligence of the hospital.

2. The enforcement provisions of EMTALA, as amended, include both civil money penalties and private causes of action (McKitrick, 1994):

1. Civil money penalties:

FWMC violated EMTALA requirements by transferring Edward multiple times without stabilizing him first. These violations can result in civil penalties for FWMC. They can be subjected to an amount not more than $50,000 (or not more than $25,000 in the case FWMC has less than 100 beds) for each violation. Penalties can also exceed $50,000 per patient because more than one violation may occur in an encounter with a single patient (Zibulewsky, 2001).

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The physician who was responsible for Edward’s care, as well as the on-call pulmonologist who failed to report, can be subjected to a civil money penalty of not more than $50,000 for each violation. A result of repeated, gross, or flagrant violations of EMTALA can result in the physician’s exclusion from state and federal health care programs (McKitrick, 1994).

2. Private causes of action: According to Pozgar (2018), “a tort is a civil wrong, other than a breach of contract, committed against a person or property”. FWMC is liable under tort law for causing harm or injury to Edward and possibly to JPS hospital as well.

Under EMTALA, since Edward suffered personal injury (cardiac arrest and compromised lung function) due to a direct violation of a requirement, he can obtain those damages in a civil action against FWMC under the law of the state in which FWMC is located. He can also sue them for not following standard medical guidelines as well as falsification of documents. Additionally, if JPS hospital suffers a financial loss due to a direct violation of EMTALA requirements by FWMC, then FWMC can be held liable under tort law for those actions and JPS can obtain damages in a civil action (McKitrick, 1994).

The most important consequence of the violation of EMTALA is the termination of FWMC’s and physician’s Medicare provider agreement. This poses a huge financial risk for FWMC as Medicare is one of the largest payers to hospitals. In case of termination, FWMC would also be required to inform the community about the penalties through an announcement in the local newspaper, thus, negatively hampering their reputation (Zibulewsky, 2001).

Thus, FWMC is liable to Edward pursuant to EMTALA and tort law.

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3. Operational changes:

Compliance with written policies and procedures: FWMC should adopt and implement policies and procedures to conform to EMTALA requirements. FWMC could have avoided injuries to Edward and its liability had there been written policies in place. The bylaws, rules, and regulations of the medical staff and emergency department policies and procedures should reflect EMTALA requirements as well as information regarding appropriate means of transfer and receiving an inappropriate transfer. Additionally, hospitals should maintain a list of on-call physicians and policies should include information regarding their duties. Rights of people suffering from an emergency medical condition should be mentioned in easy language on appropriate signage in the ED. The hospital staff including attending physicians should read and follow these policies to avoid any tort liability (CMS, 2009).

Proper documentation and record maintenance- In this case, Edward was falsely certified as stable multiple times by FWMC. This indicates that the documentation and audit procedure at the hospital was faulty. Hence, it is important for FWMC to adequately document their actions with proper justification. A hospital must formally identify a Qualified Medical Person (QMP) that is a health practitioner designated to perform medical screening examinations. Every patient visiting the ED should be examined by a QMP to determine an emergency medical condition and proper documentation of the interaction should be done (CMS, 2009).

A central log that tracks the care provided to each patient presenting in the ED should be maintained and it should indicate whether the patient refused treatment, was denied treatment, was treated, admitted, stabilized, and/or transferred or discharged. This log should be maintained for at least 5 years, updated regularly, and should be subjected to a monthly audit (CMS, 2009).

Educational and training programs- Failure to follow EMTALA requirements as well as falsification of documents suggests the lack of adequate training for the hospital staff. Thus, all members of the hospital should be required to participate in EMTALA training programs. These education programs should include simulation training and skills assessment and should be conducted on an ongoing basis. Continuing education and training programs play an important role not only in the development of skills but also increase adherence to policies and continuously changing government regulations.

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4.                                                        HOUSE JOURNAL

EIGHTY-SIXTH LEGISLATURE, FIRST CALLED SESSION

PROCEEDINGS

FIRST DAY – FRIDAY, OCTOBER 12, 2018

A BILL

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To address Texas Legislative changes that might address the EMTALA and tort concerns raised by Edward’s case

Section 1- Background:

The findings of a root cause analysis of Edward’s case by our organization suggested that there were two main causes of Edward’s unfortunate injuries. Errors due to system failure and lack of funds contributed majorly to this case. FWMC’s mission is to serve the Fort Worth community and shutting down due to financial pressure would hamper our purpose. To ensure adequate uninterrupted access to healthcare, I would like to address Texas legislative changes that can help in addressing EMTALA’s unintended consequences.

Section 2- EMTALA and Tort concerns:

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EMTALA is a federal law that requires the hospital emergency departments to screen and provide stabilizing treatment to anyone who seeks care regardless of their ability to pay, thus creating a national health care safety net. However, the Act failed to include a mechanism for a financial backing to provide this required care. This has resulted in several inadvertent consequences (Dollinger, 2014).

Emergency departments are suffering from overcrowding and are facing a fiscal crisis due to a large number of uncompensated care being provided (Dollinger, 2014). In 2011, the uninsured population in the U.S. was estimated to be approximately 15.7% (48.6 million). Hospitals lost $41.1 billion dollars from providing uncompensated care to the uninsured that year (Dollinger, 2014). In Texas, about 19.4% of the population below the age of 65 were uninsured and 14.7% of the population lived in poverty in the year 2016 (Census Bureau, 2017). Approximately, 10 million hospital ED visits occurred in Texas that year, thus, increasing the financial burden on hospitals (DSHS, 2017).

Additionally, according to a report generated by the General Accounting Office, 40 % of physicians and 60% of emergency department directors assert that their roles and responsibilities under EMTALA are unclear (Lee, 2004). These factors collectively impact the quality of care provided in emergency departments. Overcrowding has shown to result in delayed treatment, patient dissatisfaction, increased time on ambulance diversions, and worsened health outcomes (Dollinger, 2014). These factors also increase a hospital’s tort liability, like Edward’s case.

Section 3- Recommendations:

For providers to remain viable in the current competitive landscape, they should be offered some financial relief. This can be done in the form of subsidies to all hospitals to fund the EMTALA mandate (Lee, 2004). One approach could be an improvement in Medicare reimbursement for physician services in the emergency department. This will help to offset the expenditure of uncompensated care provided under EMTALA. Another approach could be to improve Medicaid reimbursement rate for primary care physicians. Currently, many providers do not accept Medicaid patients due to low reimbursement rates. An improvement in Medicaid funding will help in increasing access to primary care services and would reduce non-urgent visits in emergency departments, thus, reducing overcrowding (Lee, 2004). Additionally, CMS guidelines should provide added clarification to help providers understand their roles and responsibilities under the EMTALA statute (Lee, 2004). The concept of Uncompensated Care Pool incorporated in the Massachusetts health care reform can be administered to improve access for low income uninsured and underinsured patients. This approach subsidizes hospitals for the services they provide to such individuals, thus preventing patient dumping and reducing the financial burden on hospitals (Seifert, 2002).

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Section 4- Conclusion:

For hospitals to maintain compliance with EMTALA requirements in a financially sustainable manner, the government must grant them appropriate financial relief and include guidelines to clarify the responsibilities of providers under the statute. These amendments will address the public’s concern about patient dumping and the financial viability of emergency departments.

Effective Date: October 12, 2019

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Kwiecinski, M. (2005). To Be or Not to Be, Should Doctors Decide-Ethical and Legal Aspects of Medical Futility Policies. Marq. Elder’s Advisor, 7, 313. https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1073&context=elders

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Luce, J. and Alpers, A. (2000). Legal Aspects of Withholding and Withdrawing Life Support from Critically Ill Patients in the United States and Providing Palliative Care to Them. American Journal of Respiratory and Critical Care Medicine, 162, pp.2029-2032. https://www.atsjournals.org/doi/full/10.1164/ajrccm.162.6.1-00

Pozgar., G. (2018). Legal Aspects of Health Care Administration. Burlington: Jones & Bartlett Learning, pp.42, 299-300.

CMS (2009). Interpretive Guidelines – Responsibilities of Medicare Participating Hospitals in Emergency Cases. https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/downloads/R46SOMA.pdf

Zibulewsky, J. (2001). The Emergency Medical Treatment and Active Labor Act (Emtala): What It Is and What It Means for Physicians. Baylor University Medical Center Proceedings, 14(4), pp.339-346. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1305897/

McKitrick, A. J. (1994). The Effect of State Medical Malpractice Caps on Damages Awarded under the Emergency Medical Treatment and Active Labor Act (42 USC 1395dd). Clev. St. L. Rev., 42, 171. https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1699&context=clevstlrev

Dollinger, T. (2014). America’s Unraveling Safety Net: EMTALA’s Effect on Emergency Departments, Problems and Solutions. Marq. L. Rev., 98, 1759. https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=5261&context=mulr

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DSHS (2017). Hospital Emergency Department Data Collection. https://www.dshs.texas.gov/legislative/2017-Reports/RPC-Hospital-Emergency-Room-Data-Collection.pdf

Lee, T. M. (2004). An EMTALA primer: The impact of changes in the emergency medicine landscape on EMTALA compliance and enforcement. Annals Health L., 13, 145. https://pdfs.semanticscholar.org/009e/348865a69b4a076cbc0373749801107488bc.pdf

Seifert, R. (2002). The Uncompensated Care Pool: Saving the Safety Net. https://masshealthpolicyforum.brandeis.edu/publications/pdfs/16-Oct02/IB%20UncompCarePool%2016.pdf

APPENDIX

Ethical Framework: