WhiteCoat

University of Chicago’s EMTALA violation

secret-service-agent-pointingThere’s suddenly a lot of conjecture flying about a patient who died in the University of Chicago’s emergency department a couple of months ago. Everyone that reads this blog had a heads up on the event way back on February 8.

According to news reports, a 78-year-old man was brought to the emergency room by ambulance about 12:30 PM. He was put into a wheelchair in the waiting room, but was neither triaged nor logged in. At 4:15 PM, the patient’s daughter wheeled the patient to the triage nurse to ask about the delay. The triage nurse noted that the man wasn’t breathing and called a code, even though rigor mortis had already set in. Unfortunately, rigor mortis is one of those things that usually precludes a successful cardiac resuscitation.

We don’t know anything about the man’s health or his complaints. All we know is that he was brought in by ambulance, sat in the waiting room for 4 hours (at least some of the time accompanied by his daughter), and was dead for a while (rigor mortis takes several hours to set in) before anyone noticed it. Be careful drawing conclusions without knowing all the information.

The University of Chicago admitted that procedure wasn’t followed. In other words, given the recent adverse publicity at the University of Chicago, a couple of nurses had to take the fall for what happened. The University of Chicago posted a statement about the incident emphasizing the U of C’s commitment to quality and safety.

Illinois State, the Medical Marijuana Advocates, and federal investigators are all looking into the incident. Some news reports stated that the feds have now cited the University of Chicago Hospital for an EMTALA violation.

Then comes the big stick. CMS allegedly sent the University of Chicago a letter threatening to take away the University of Chicago’s Medicare funding.

What an idle threat.

If I were the CEO at the University of Chicago, and the feds told me they were considering whether to revoke the hospital’s Medicare funding, I’d give them a double dog dare to go right ahead.

The Emergency Medical Treatment and Active Labor Act (“EMTALA” for short) only applies to “participating hospitals” – those hospitals that receive federal funding under Title 42 of the US Code. If the feds kick the University of Chicago out of the Medicare program and it no longer receives federal funding, then, just like free-standing emergency departments, the University of Chicago has no further duties under EMTALA. It wouldn’t have to provide a screening exam to patients. It wouldn’t have to provide stabilizing care to patients. If the patient doesn’t have insurance, the University of Chicago could essentially tell patients to “go to the county hospital.” It could even call an ambulance and have the ambulance transport the patient to another hospital. It could transfer patients to other hospitals without the transfer being “appropriate” under the EMTALA rules. EMTALA requires that hospitals accept transfer of patients if the hospital provides specialty services, so the receiving hospitals would be stuck taking any patients that University of Chicago decided to send them. Added bonus: the Joint Commission would no longer have any business in University of Chicago’s affairs.

A termination from the Medicare program could be a blessing in disguise. Without being subject to EMTALA, the University of Chicago could technically engage in “patient dumping” and only accept patients with insurance. True, a hospital would lose the income from Medicare (which is the dominant player in the market), but maybe that shift to providing only funded care would make up some of the difference because the hospital would no longer have to provide unfunded care or underfunded care. Would people with insurance go to University of Chicago preferentially if there was less crowding in the ED, if they were treated like royalty, and if appointments were easier to obtain? Might take some number crunching, but an entirely for-profit hospital might be sustainable – especially in a large city.

The thing is … if University of Chicago takes that gamble and is successful, how many other hospitals would consider whether or not to make the same leap? Would a successful large for-profit-only hospital system be the first step to creating a “two level system” where the best doctors go to entirely privately funded hospitals because they receive more compensation, but those doctors aren’t available to patients without a means to pay? Would all patients on public funding then get sheep herded into the public hospitals where they get free care that might not be as high quality or as accessible as at the for-profit hospitals?

Or maybe the University of Chicago will be so affected by the lack of federal funding that it will go out of business like so many other Illinois hospitals.

In either case, remember all those patients that were having difficulty obtaining emergency medical care? Remember Dontae Adams whose face was “chewed off” by a pit bull? Close the University of Chicago or turn it into a strictly for-profit institution that is not subject to EMTALA and guess what happens to all the patients who have public funding or no insurance at all? NONE of them get any care at the University of Chicago. They all get sent to other hospitals that are still required to provide EMTALA-mandated care.

With the new onslaught of low paying patients, wait times at surrounding hospitals will increase and quality of care will inevitably decrease. Eventually, the volumes of patients will overwhelm the surrounding hospitals’ resources to the point that patients will die in other emergency department waiting rooms. More CMS investigations. More hospitals will close.

Lather. Rinse. Repeat.

Less hospitals, more patients in the emergency departments. Yeah. That will go over real well.

So CMS, if you’re playing a game of “chicken” with University of Chicago, you better be driving something larger than a Cooper Mini.

I’ve got another idea: How about fixing the funding of emergency care in this country before waiting room deaths become an everyday occurrence?

Like this.
Or this.
Or this.
Or this.
Or this.
Or this.

Fast care, free care, quality care. Pick any two.

As Scalpel once said, sometimes you only get to pick one. “Free” doesn’t always cut it.

===

Also see related articles at:
Huffington Post – University Of Chicago Hospital May Lose Medicare Certification After ER Death
Chicago Sun-Times – U. of C. admits problems with ER death
WBBM Chicago Radio – Feds Threaten Action Against U of C Med Center

The bad blood between the Chicago Tribune and the University of Chicago continues. While most sources had one article about the incident, the Chicago Tribune has had three (and will probably have about a half dozen more):

U. of C. Medical Center says ‘protocol’ not followed in ER death
Medicare warns U of C Medical Center after ER death
University of Chicago Medical Center in violation of emergency room services law, U.S. alleges

UPDATE MARCH 30, 2009

Leave it to Shadowfax to set me straight. See his post related to the above here.

I didn’t consider the funding that training programs receive from the federal government in my equation and agree that removal of such funding would be a death knell for the training program and, more likely than not, the affiliated teaching hospital.

Shadowfax and I are looking at the same problem from two different angles, though.

Shadowfax’s post brings forth some criticisms about the University of Chicago using factual allegations to which I’m not privy.

I’m looking at the issue more from the angle of what happens when a bully picks on too many nerdy kids or what happens when you back an animal into a corner. Right now, hospitals are too afraid that they’ll go bankrupt if they stop taking Medicare funding. Medicare the bully is still winning. At some point, a couple of hospitals are going to stand up to the bully, punch him in the nose, and tell him to stick his paltry payments and all the micromanagement that goes along with them.

If those hospitals survive, others will undoubtedly follow, resulting in huge market shifts. Will lofty professors of specialty medicine remain with their university programs if suburban hospitals pay their specialists twice the salary that professors earn? What if there are one tenth of the documentation and administrative hassles? No JCAHO? Get paid more so you can spend more time with your patients?

Primary care physicians and their patients are finding concierge practices quite rewarding. It’s only a matter of time until a hospital takes the leap.

CMS may still be driving a Hummer when playing chicken with residency programs, but powerful hospital systems in affluent suburban areas might just be driving a Bradley Fighting Vehicle. One of these times, CMS is going to lose … and it will liberate the practice of medicine.

I can’t wait.

21 Responses to “University of Chicago’s EMTALA violation”

  1. shadowfax says:

    “The great tragedy of Science: the slaying of a beautiful hypothesis by an ugly fact” — TH Huxley.

    One problem with this theory. Never mind the question of whether UCMC could survive without medicare patients, who they would be barred from seeing. (The answer to that question is also “no.”) UCMC is a university hospital, staffed by residents whose salaries are paid by CMS. In most academic centers, the majority of the day-to-day patient care work is performed by the residents. Worse, the ~$40,000 per resident per year is only the direct funding paid to the medical center. Each resident is also worth an additional ~$120,000 annually in indirect funding, meant to offset faculty and other associated academic costs.

    Get barred (or decline to participate) in medicare, and UCMC can no longer sponsor residencies or have residents perform work in the hospital. Not only does UCMC lose the bulk of its staff but also a huge amount of ancillary funds dry up. They lose their training program and the cachet that goes with it to boot, and probably the academic faulty who liked to teach/research and liked having residents to their work for them. And at the same time, they lose about a third of their customers – paying ones, I might add, though Medicare’s not the greatest payer.

    So yeah, a threat to CMS certification is pretty much a death sentence to any hospital, but an especially potent threat to an academic hopsital.

  2. paul says:

    please. cms has no intention of dropping u of c’s medicare money. they are doing exactly what i’d expect of them- appearing to sternly wag their finger at u of c without actually doing anything.

    you do raise an interesting point though- we all take it as gospel truth that no hospital can remain financially viable without medicare funds. i’d love to see a hospital i don’t work at test the validity of that belief.

  3. Max Kennerly says:

    Boo-hoo for U of C. Even as they get blasted by ACEP for poor care and fire hundreds of workers, they still post operating profits of >$80M and charge forward with a new 800-bed facility.

    Medicare and the preferential treatment U of C gets with it — nonprofit status, residencies, government grants — is well worth the money, and they’re supposed to ditch that because it’s so, so, SO hard to do basic triage?

    How about they just to their job? Do they not have enough ER doctors? There’s a solution to that: hire more ER doctors. Not enough nurses? Same deal.

    http://www.uchospitals.edu/about/financials/index.html
    http://www.uchospitals.edu/pdf/uch_001140.pdf
    http://www.chicagobusiness.com/cgi-bin/news.pl?id=32945
    http://www.acep.org/pressroom.aspx?id=44294

  4. scalpel says:

    Many surgical hospitals already opt out of Medicare. Why couldn’t a general hospital in the right market climate find a way to be successful doing the same?

    Maybe my healthcare plan will be realized after all: hospitals with academic programs will provide the majority of indigent, chronic, and dependent care, and private hospitals will provide a separate tier of care for the self-sufficient working population.

  5. cynic says:

    So apropos, you are brilliant.

    I should have gone into law, these guys seem to have all the answers.

  6. shadowfax says:

    Max,

    Thanks for the helpful links. I put a more considered analysis over at Movin’Meat.

  7. V says:

    But if they lose federal funding, doesn’t that mean that (1) they have to shutter their teaching programs and (2) they can no longer participate in UNOS? Being able to thumb your nose at EMTALA may be fun and profitable, but those aren’t trivial losses, and I imagine that it wouldn’t exactly increase their prestige as a university.

  8. Nurse K says:

    It sounds here that the patient was just forgotten somehow. I’m guessing the ambulance people just dumped him off there and didn’t give report nor assist the patient to sign in. Assuming no one intentionally ignored the patient, if the patient was “forgotten”, is that a true EMTALA violation? Do we have to go around to everyone waiting in the waiting room now and make sure they didn’t intend to sign in?

  9. Mark says:

    “Would a successful large for-profit-only hospital system be the first step to creating a “two level system” where the best doctors go to entirely privately funded hospitals because they receive more compensation, but those doctors aren’t available to patients without a means to pay?”

    Everyone says this like it’s a self-evidently bad thing. Why? There are homeless shelters for people who can’t afford housing, and food stamps for people who can’t afford food. No one suggests that these have to be of equal quality as housing and food people pay for themselves. Why can’t there be ‘medical shelters’ for people who don’t want to/can’t pay for their own care? Yeah, the quality and hassle will suck, but at least there would be a basic level of healthcare for all. Want more? Pay up.

    • WhiteCoat says:

      I don’t think it’s a bad thing at all. In fact, I strongly believe that is the way medical care in this country is headed.
      Even if people claim a “right” to healthcare, no one has (or should have) a “right” to the best medical care in the world.

  10. GruntDoc says:

    I don’t think America’s hospital administrations, no matter what we may think of them, are dumb. I’d be willing to bet a months’ salary they’ve run the numbers on doing without the Medicare dole, and have discovered it’s the only game in town. (This applies to general hospitals: money-skimming surgical hospitals are an obvious market distortion).

    However, let’s say for sake of argument a general hospital made a run without uncle’s money and was a success they’d be legislated into a corner and put out of business.

    It’s quite a fine mess, really.

    • WhiteCoat says:

      This comment just illustrates the point I’m trying to make – the bully has everyone too scared to fight back.
      There is no way to predict how market forces will change if a hospital eschews public funding. Perhaps a hospital will have to restructure and most likely the hospital will have to consolidate temporarily because there will be a decrease in the number of patients who seek care once it is not “free.” But …
      With the consolidation, there will no longer be all the micromanagement from the government agencies. Staff will be able to focus more time on patients. Patients will get better care because the staff doesn’t spend half the day charting. Patients will be happier and will tell other patients. Staff will be happier and less stressed leading to greater staff retention. Happy staff lead to happy patients. Happy patients lead to more happy patients.
      On the flip side, patients who do not want to pay or who cannot afford to pay will gravitate toward other hospitals that still accept public funding. When those other hospitals become overwhelmed with lower-paying patients, what will happen to the staff? Unhappy. Some leave. More attrition means more overwhelmed remaining staff because of less staff taking care of more patients.
      Hey! I heard that everyone over at Private Pay General loves their job. Lets go apply there.
      What will happen to the patients who have the ability to pay? Unhappy.
      “Hey! I heard that the docs over at new Private Pay General are great and that there is no wait for care.”
      If one hospital makes a successful go at privatization, news agencies will pick up on it in a heartbeat. Other hospitals will jump ship like lemmings off a cliff.
      Is it possible that hospitals might be legislated into corners if they successfully wean themselves from Uncle Sam’s udders? Of course.
      It’s also possible that a bully who picks on you can kick the crap out of you.
      But you’ll never know until you punch him in the nose and tell him to leave you alone.

      • shadowfax says:

        Ever see penguins on the ice deciding whether it’s safe to go in the water? They don’t know if there’s an orca lurking, waiting to eat them. So they edge closer and closer to the edge of the ice until the jostling pushes one penguin off the ledge and into the water. Then they all watch to see if he gets eaten. If not, they all dive in. If yes, they move away from the edge and pretend nothing happened.

        The moral, if there is one: don’t be the first penguin in the water.

    • Matt says:

      It’s also entirely possible that hospitals, like many businesses, feel that Medicare provides consistent, if not terribly profitable, operating revenue which keeps the bills paid while they look for more profitable income elsewhere.

      “(This applies to general hospitals: money-skimming surgical hospitals are an obvious market distortion).”

      When you refer to them as “money skimming” you seem to be denigrating those who have left the very program you yourself complain about.

  11. V says:

    The problem with a two-tiered system is that the upper tier is what we now call standard of care, and the lower tier is what a lot of people would call malpractice. This is how health care is delivered in third world countries. I’m not sure we should be looking to them as models of practice.

    • WhiteCoat says:

      Disagree.
      Because a rural hospital doesn’t give cancer treatment that patients could get at M.D. Anderson or Johns Hopkins, does that mean that all rural hospitals in the US are routinely engaging in malpractice?
      Malpractice is “reasonable” care, NOT “the best care someone else can pay for (until they run out of money).”

      • V says:

        Yeah, but in the U.S., you can still get treated for cancer somewhere. It may not be cutting edge, you may not have the best outcome, but it would still be considered standard of care. But in a lot of third world countries, if you’re dying on the street, even if the paramedics are standing right over you, if you can’t pay, I’m not sure they’ll even bother stabilizing you. I’m not sure this is where we want to go.

  12. k says:

    Way back at the beginning of this fiasco, WBBM 780′s Steve Miller reported
    the elderly patient was known to the staff and had apparently been ill for some time
    . This particular statement has bothered me since I first heard it.

    Not to judge anyone involved in this matter, but the phraseology sounds like a polite way to allege “staff considered the now-deceased patient an uninsured/underinsured frequent flyer that could ‘safely’ be ignored for an unknown period of time”.

    • WhiteCoat says:

      One might also say that the phraseology sounds like a polite way of saying “the patient was a frequent flyer (regardless of insurance status) who cried wolf about vague complaints so often and who had been worked up for his complaints so often that the medical staff believed his chronic complaints were not as serious as other patients in the emergency department at the time.”
      I don’t know anything about the patient, his complaints, or what he died from.
      I just don’t think the general public knows enough about the case to draw a reliable conclusion about what happened.

  13. they must pay their er docs very well..I live in St. Louis and just heard of an er doc that commutes to this facility to work in their er…7 on 7 off. It’s not exactly like I live in a city without hospitals. Just thought you might find this interesting.

  14. [...] has a reasonable rundown on the events surrounding last month’s death in the waiting room at University of Chicago Medical Center — as well as a satisfying but spurious idea of how UCMC should respond.   The news is that [...]

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