The practice of hospital-based emergency medicine is highly regulated by both federal and New York State government. During the 1980s, as the cost of medical care continued to escalate, and the number of uninsured patients increased each year, some private hospitals began turning away patients who were in need of emergency treatment but who had inadequate or no insurance coverage. This practice was referred to as "patient dumping." To correct this problem, Congress passed the Emergency Medical Treatment and Active Labor Act, known as EMTALA in 1985. EMTALA provides that any individual who seeks emergency treatment at a hospital that accepts Medicare funds (virtually all hospitals do) cannot be denied treatment for discriminatory or economic reasons. The Act also provides that all patients who seek care for any condition at a hospital, whether or not they have insurance coverage, must receive an appropriate medical screening to determine whether a medical emergency exists. Patients who are suffering from a medical emergency must receive appropriate treatment and cannot be discharged or transferred to another facility unless their medical emergency has been stabilized. There are many other EMTALA requirements, one of which mandates that hospitals post signs within the hospital informing patients of the hospital's obligations under EMTALA. A hospital will be liable for any injuries or damages caused by the violation of any part of EMTALA. The violation of these rights can be the basis for a claim in New York's civil courts.
The New York State Health Department has also enacted minimum standards that cover emergency medicine. These standards are outlined in 10 NYCRR 405 of the hospital code. Included in these requirements is the Patient's Bill of Rights which requires, amongst other things, that each patient "receive treatment without discrimination as to race, color, religion, sex, national origin, disability, sexual orientation, or source of payment."
Once a hospital is asked to provide services to a patient, there must be an appropriate medical evaluation performed. If the exam is not performed, or is incorrectly performed, the provider, whether a physician, a physician's assistant, a nurse practitioner or other provider, must act in accordance with the standards of care for emergency medicine. The failure to do so may lead to liability on the part of the individual who did not comply. The employer of the individual medical provider will also be held responsible under the doctrine of respondeat superior ("let the master speak"), which holds that an employer may be responsible for the negligent acts of its employees who cause injury while performing their job responsibilities.
Most hospitals in New York have contracted with private medical groups to run the hospital's emergency department. Despite subcontracting its obligation to comply with all requirements to a private group of emergency doctors, the hospital is not relieved of those requirements under either EMTALA or the New York State Health Department. Also, hospitals will he held responsible for any negligence committed on the part of the group's employees, unless it can be shown that the patient knew that the emergency medical provider was not employed by either a private group or the hospital. This situation rarely occurs since hospitals would prefer that the public not be made aware that the emergency room is not staffed by the hospital's employees.
Another practice of emergency departments, whether the department is run by the hospital or by an outside group of doctors, is to hire doctors by the day. Although these doctors are referred to in the medical community as "locum tenens," meaning "a temporary substitute for someone of the same profession," they are, in essence, day employees hired from a medical job service. These physicians are more prone to committing error since they are unfamiliar with the regular emergency staff and its practices and procedures. Further, there is little direct oversight by the hospital administrative staff to ensure the doctors are adequately qualified.
Due in large part to economic constraints, many patients are never seen by a physician during their entire emergency room visit. Nurse practitioners and physician's assistants are often the only individuals who provide direct patient care, with the role of the physician becoming one that simply requires a review of what the providers have already concluded. Sometimes, the review is not done until the patient has already been sent home. The medical profession refers to these non-physicians as "medical extenders," no doubt because they allow emergency departments to extend the doctor's "services," and billings, over more patients. Unfortunately, this practice can result in the non-physician failing to understand a patient's symptom, or failing to recognize its significance, which can lead to a wrong diagnosis. Because the emergency physician does not have any direct patient contact, the physician's review will not uncover the missed symptom.
The American College of Emergency Physicians is the leading source of continual medical education for the delivery of emergency medicine. It has published guidelines (standards) that are to be followed when treating nearly every kind of medical emergency. The failure to follow these standards may result in liability for any injuries resulting from a departure from the standard of patient care.
