r/emergencymedicine • u/Dangerous-Prune-7280 • 22h ago
Discussion We need a legal definition of medical screening exam
I've been reviewing a few malpractice cases recently and it seems like lawyers commonly add on EMTALA violations to their claims. Specifically, they claim the provider failed to provide an adequate MSE If there was later a bad outcome.
Obviously EMTALA requires us to provide a MSE to anyone that comes through the ER but what does that actually mean? Vitals, doorway exam, EKG? Labs?
It seems like MSE is always situational and defined retrospectively after a bad outcome.
I wish we as ER docs and/or ACEP could advocate for a defined MSE that would satisfy EMTALA.
I see a ton of non acute complaints, like everyone else daily. I wish I could just do a defined MSE and discharge them rapidly.
For example. 26 yo female with chronic abdominal pain. Nothing new today but she "just wants you to find an answer because no one else can". Vitals normal, exam without guarding or rebound tenderness. Next step dc home without any labs or imaging. Follow up with PCP, this is non emergent.
Anyone else agree?
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u/TriceraDoctor 21h ago
You won’t get a definition outside of re-writing or through case law. When you deal with everything from fractures to nose bleeds to deliveries to cardiac arrests, creating a one-sized-fits all definition is impossible. I do expert witness for defendants and we often will get asked about EMTALA. It’s often that they didn’t follow standard of care, eg getting a dimer or CT on a tachy CP patient, so if they get discharged it’s implied they didn’t get a ‘screening exam’ because they missed a diagnosis. I find it BS.
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u/Dangerous-Prune-7280 20h ago
Going on with that theme. What is standard of care? I realize that sounds dumb but like MSE standard of care is only defined after a bad outcome. It's a shitty retrospective definition.
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u/Moist-Barber 20h ago
I believe “standard of care” is simply a legal term to encapsulate what “most other reasonable physicians would do”
So far as I understand it anyways
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u/Cautious-Extreme2839 Anaesthetics/ICU 4h ago
Not even what they would do. It's more like the lowest common denominator of what the consensus is on the minimum acceptable care you have to provide.
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u/MrPBH ED Attending 7h ago
The best explanation I've heard of standard of care is that it is a "C-average, not an A+." Standard of care doesn't mean doing everything perfectly. It just means providing a level of care that any other competent physician with your training and resources would provide. It is supposed to be a low bar, not an aspirational goal.
We need to keep in mind that standard of care varies for different facilities and communities. If you practice in a rural ED, it would be standard of care to stabilize and ship a polytrauma patient, whereas if you practice at a level one trauma center, the standard of care would be to consult surgery or IR for the patient's injuries. In some communities, patients with TIAs are discharged to be worked up outpatient, whereas in others they are admitted to hospital.
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u/burnoutjones ED Attending 21h ago
The medical screening exam is enough workup to reasonably determine whether an emergency is present in the given situation, what constitutes one is necessarily situational. How could it not be?
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u/DadBods96 20h ago
I commented above but there are situations where simply history and exam isn’t enough, such as chest pain, where an EKG would be the bare minimum, and “patient didn’t look like shit therefore they weren’t having a STEMI” isn’t defensible as proper screening.
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u/biomannnn007 Med Student 20h ago
Especially if the malpractice suit is because they actually were having a STEMI
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u/DadBods96 20h ago
Yes. But the EMTALA allegation would be separate;
The patient isn’t getting anything from including it, it’s purely punitive against the physician (+/- the hospital) because the fine is out-of-pocket, any EMTALA violation complaint deemed potentially credible triggers a state investigation that the physician gets deposed for separately, and it buffs the malpractice suit by making it look like the physician was so negligent that they booted a patient to the street to die.
Having an EMTALA violation against your medical license is much more damaging than a successful malpractice case.
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u/biomannnn007 Med Student 20h ago
Oh yeah I get that part. I was just referencing it in the context of the EMTALA violation allegations getting triggered by the malpractice suit. My understanding is that an EMTALA violation would exist in that scenario regardless of whether or not they had a STEMI, but it’s even worse to try to defend what you did in an EMTALA case while you’re actively getting sued for a condition that was missed due to an EMTALA violations.
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u/Dangerous-Prune-7280 9h ago
See the other comments. Malpractice lawyers tack on EMTALA violation claims to try to reduce your credibility as a physician. They want to settle for a large amount and quickly because trial is unpredictable. Attorneys are regularly exploiting this, it needs to be changed.
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u/CertainKaleidoscope8 RN 12h ago
If there's no ST elevation on EKG it is by definition not a STEMI
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u/biomannnn007 Med Student 4h ago
And if you never got an EKG then you don’t know whether or not the ST elevations were there
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u/Dangerous-Prune-7280 20h ago edited 20h ago
This is why the lawyers have the edge. The "definition" of a MSE is so subjective.
For example, you discharge a 45 yo with chest pain after 2 negative trops, negative EKG. 24 hours later they have a massive heart attack. Lawyer can claim you failed to perform a proper MSE, you don't rule out an emergent issue that they died from 24 hours later. We all know that's bullshit but it's not us or our peers on the jury.
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u/DadBods96 20h ago edited 20h ago
This wouldn’t meet criteria for an EMTALA violation. Whether it would even succeed as a malpractice case is up in the air as well and is gonna be case-dependent, ie. If the patient managed to fall into Heart Score >4, Was the option of hospitalization vs. outpatient follow-up offered? If so, standard of care was met. If not, there’s potentially a case. As to whether we should be held liable for “Risk of future morbidity” as Emergency Physicians is a whole different conversation that I have very strong opinions on.
You ruled out the emergent medical condition. And even if an investigation were triggered by a complaint from the plaintiffs, which would occur outside the malpractice case, (these are state investigations), it would be non-credible.
If a lawyer is including a claim that an EMTALA violation occurred simply to add a little extra meat to the malpractice case, this would be incredibly easy to refute, and make them look bad by prying into the EMTALA allegation on the stand; “Did you report this to the state? Why not? Are you aware EMTALA violations are civil matters investigated by state medical bodies?”
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u/Hot-Praline7204 ED Attending 22h ago
I agree with your underlying point, but I’m curious how EMTALA even makes it into the discussion except in cases where the patient was transferred?
If they were admitted or discharged, clearly an MSE was done. If they eloped or AMA’d, it’s moot.
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u/microcorpsman Med Student 22h ago
Sounds like the argument the lawyers are making in OPs case review is that people were discharged without appropriate work up.
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u/stabbingrabbit 21h ago
You mean without appropriate work up documentation.
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u/Dangerous-Prune-7280 21h ago
No. It's a malpractice legal tactic to include EMTALA violation if you "miss" a diagnosis. EMTALA requires us to see and eval anyone for an emergent condition. If you see a patient, do a work up but they still have a bad outcome the malpractice lawyers sometimes make the argument that you didn't properly evaluate or treat their emergent condition hence the EMTALA violation.
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u/DadBods96 21h ago edited 20h ago
If you’re looking at malpractice cases the initial claims aren’t relevant, what happens to those claims is what’s relevant. It’s just like how everyone whose name is in the chart gets listed in the initial suit, and then it gets narrowed down to those who are actually relevant to the outcome. But also this sounds weird because EMTALA is separate from malpractice.
Now, there are situations in which EMTALA can come into play where you’re violating it either without realizing it, or intentionally because the patient is going to do nothing but get worse every minute they stay with you;
Unintentional: Guy comes in with his chronic chest pain. He’s been seen 6 times in the last 72 hours. Cardiac workups have always been negative. You talk to him and have “the talk” about how his workups have shown he’s not having a heart attack, he needs to see his family doctor for the next steps, etc. You skip the EKG. He goes home and it’s gotten worse and worse, and ultimately v-fib arrests, because he was having The Big One when he saw you. Sued. You arguably committed an EMTALA violation because you didn’t do an adequate screening on them (and in this case it happens to overlap with malpractice). You talked with them and determined no immediate life threat was happening from history, exam, and bias. There are certain complaints where EMTALA includes actual testing, at minimum EKG/ POC glucose. On others, specific detailed exams (strength and sensation testing on back pain patients). These kinds of examples are edge cases, and I’m talking about them in a specific context where usual screenings and thorough exams can get lax, such as an overworked charge nurse who is tight on beds asking you to see the chest pain q12 hour bounceback in triage so EVS doesn’t have to clean a room twice.
Intentional: Car accident is getting scans, then becomes unstable. You FAST them and now they’ve got free fluid in their belly. Your surgeon isn’t a trauma surgeon and ways “fuck no I’m not doing an ex-lap”. You’re giving blood but their vitals are staying marginal. Fortunately trauma transferring is a 5 minute process and the ambulance is ready to go. You send with blood running. Technically, EMTALA violation. Because the patient is unstable. But fortunately there’s a carveout; The little box you check in the EMR that says “Patient is stabilized to the best of the abilities of this facility, benefits of transfer outweigh risks of staying for further stabilization”. Or pregnant patient scheduled for their 3rd C-Section in 2 weeks all of a sudden goes into labor. Don’t ask me why they came to me instead of their OB’s hospital with clear directions to do exactly that if this happened, if I knew why and how to prevent this shit I’d be out of a job. You think I’m keeping a late-term VBAC at my ER with no OB even if they’re an hour away from baby popping out? Fuck no.
Edit: I was gonna write more initially but got pulled away.
EMTALA does come down to more than just your routine “Stabilize and transfer to facility with the specialist the patient needs” or “Do this screening exam to satisfy EMTALA requirements for the hungry homeless person who accidentally got checked in at registration so we can close out the chart”.
It includes anyone within a certain radius of the hospital who asks to be seen, Ie. Someone can stop an ambulance as it’s leaving your parking lot. The ambulance for whatever reason doesn’t tell them “Walk into the ER, it’s right there” they take them to a different hospital where they’re already on their way to pick up a patient being transferred. This is an EMTALA violation.
It can include specific exams beyond a doorway exam, or tests like I hinted at above; EKGs for chest pain, neuro exam for stroke/ back pain (Neuro exam -> street ‘em when normal obviously doesn’t meet standard of care from a malpractice perspective for patients who had a TIA, but you did the bare minimum to satisfy EMTALA requirements by doing enough to say “This patient is not having a stroke”), suicide screening for any mental health complaints, just off the top of my head.
What I’d imagine most EMTALA violation claims that are getting wrapped up in malpractice cases consist of would be judgement calls where the sending physician deemed the patient “Not stabilized but we can’t do anything further here, they need surgery”, something bad happened during transport, and that judgement call is coming into question.
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u/Demetre4757 21h ago
(I read the line about labor as -
The woman has had 3 c-sections within the last two weeks. Bahaha. I was so intrigued!)
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u/DadBods96 21h ago
You know, i was gonna fix that typo after you pointed it out but I’m just gonna leave it, I think it emphasizes the weird shit people tell us in the ED
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u/Kindly_Honeydew3432 19h ago edited 19h ago
In my opinion, it would be very difficult for a plaintiffs attorney to succeed in winning an EMTALA claim in a standard medical malpractice suit. It comes down to the spirit of the law. Basically, if you violated EMTALA, you treated this patient differently than you standardly treat other patients with the same signs and symptoms. If you discharge a 45 year old with chest pain and they die of ACS 3 days later, it may or may not violate the standard of care, depending on the facts of the case. But, under the spirit of the law, it would only violate EMTALA if it can be clearly demonstrated that you didn’t do something for this 45 year old that you standardly do for virtually all patients with the same signs and symptoms. If you discharge lots of 45 year old patients with chest pain based on the nuances of each patients specific history, findings, and risk profile…then EMTALA doesn’t apply. The spirit of EMTALA is basically that you failed to stabilize a clearly unstable patient, or you decided not to do a work up on a patient that clearly should have been worked up because the patient had no insurance and couldn’t afford it. Or because you simply couldn’t be bothered to do so. The spirit of EMTALA is essentially that you can’t turn away patients because they can’t pay. It was never intended to ensure perfect care or to be an extension of the concept of standard of care. The government took it upon itself to ensure that patients were not treated disparately based on their ability to pay. They left standard of care a civil matter.
This does not mean that a plaintiff’s attorney will not use EMTALA as extra leverage to try to drive a settlement upward. What do they have to lose in doing so?
Just my opinion. I’ve served as an expert witness a couple of times, but I’m no more of an authority than anyone here. But I would hope my defense attorney would ask the court to consider the spirit of the law.
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u/Dangerous-Prune-7280 9h ago
Absolutely, it's a common tactic I'm seeing when reviewing malpractice cases. I'm trying to make you guys aware, this shit needs to be changed.
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u/Kindly_Honeydew3432 6h ago
I agree.
But then, I feel the entire medical malpractice system needs to be changed. Jury of my peers my ass. In what other field can you show up for work, bust your ass to keep people alive, do everything conscientiously and with the best of intentions, make a decision many other qualified and competent professionals would make under the same circumstances and that there is no clearly defined correct answer to, and then be at risk for losing millions, over and above your policy limits, possibly even including your home (depending on your state) if your patient has a tragic outcome at the hand of the fates?
I realize that violating the “standard of care” is supposed to be involved. But you rely on a jury of people with no medical training to listen to experts on both sides with very impressive resumes, one side saying you did nothing wrong and the other side calling you a heartless incompetent buffoon, and they have to decide which equally qualified expert saying polar opposite things is right? What a shitty system.
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u/Unfair-Training-743 EM/IM/Pulm/CCM 21h ago
There is a legal definition of an MSE. It just sucks.
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u/broke4evah 15h ago
I’ve heard of instances as well whereby the plaintiff’s attorney wields the specter of an EMTALA complaint and investigation as a cudgel to intimidate the defendant into a settlement.
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u/kungfuenglish ED Attending 12h ago
You’re conflating the MSE with the “stabilization of the emergent medical condition”
If the lawyer is saying a “medical screening exam” wasn’t don’t - that’s obviously bs. The exam was done. The patient was seen and screened. We don’t need any extra legal definitions of that. We have it. It exists. And anyone can do it (it doesn’t have to be a physician or even an APP).
However emtala also encompasses “stabilizing any emergent medical condition”. That’s more nebulous and there’s no hard and fast legal definition of this since the EMC can be for myriad organ systems and disease states.
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u/PlatypusHour212 21h ago
Yeah.. honestly yeah I would like more definition. As a mid level my role is fast track in the front. And then to MSE and “start” orders. Then people wait in the lobby until they get seen inside or if I pick em up. I put in a standard note that I assessed them and they’ll wait for an available room etc .. Like what happens to someone I MSE that leaves but has a bad outcome ? Is that on me..
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u/EmergencyMonster 20h ago
Just because we start an MSE exam on a patient doesn't mean it is complete.
We see a patient for a toothache, we can complete the MSE and DC the patient.
We see an 80 yo chest pain and place orders but they leave prior to WU completion. The MSE was started but not completed. Patient chose to end the WU.
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u/Cautious-Extreme2839 Anaesthetics/ICU 4h ago
We see an 80 yo chest pain and place orders but they leave prior to WU completion. The MSE was started but not completed. Patient chose to end the WU
I would disagree with that. The SCREENING exam was completed before you placed orders. You screened them, triaged them, and initiated a plan for further workup. That is no longer an unknown patient, it is one with a differential and pending investigations/treatments.
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u/EmergencyMonster 2h ago
An MSE is definitely not complete because you placed orders. EMTALA requires you to have reasonable clinical confidence that an EMC does not exist. There is no way to have confidence without the results. In fact, an attorney would argue the fact you placed orders means you need those results to rule out an EMC.
Again, for some patients a simple physical exam is enough, like my toothache example, but others like chest pain a physical exam is not enough.
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u/Cautious-Extreme2839 Anaesthetics/ICU 2h ago
If you've placed orders then you have significant clinical suspicion that an EMC may exist.
You're no longer screening. Your screening exam is over. You are now investigating.
A troponin or a ddimer is not a screening test. Anyone with a brain can tell you that. Once you have enough information to want a test like this you are way past screening.
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u/Forward-Razzmatazz33 21h ago
Like what happens to someone I MSE that leaves but has a bad outcome ? Is that on me..
It shouldn't be. They eloped. A lawyer could certainly claim and argue that it's your fault. Whether a jury would rule in that way is certainly unlikely.
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u/Cautious-Extreme2839 Anaesthetics/ICU 4h ago
And exam is an exam.
Imaging and labs are investations, not exams. Acquiring the samples for labs is a procedure, which is also not an exam.
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u/Dangerous-Prune-7280 2h ago
So a proper exam could be looking at you from the doorway without touching you?
Example:
Normal skin color, no extremity deformities, normal respirations, no obvious facial droop, no dysarthria, normal ambulation, non distended abdomen.
My point is that there is no actual definition for this stuff. It's all up to interpretation.
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u/Cautious-Extreme2839 Anaesthetics/ICU 2h ago
That is definitely an exam.
I think it's fair to say it would be fairly poor screening exam for a great many triage presentations though.
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u/ubetchalife 22h ago
I have always been told by my attendings, one of which was the medical review panel guru, that extent of the MSE is determined by the treating provider and it varies by presentation. As a young nurse then a young NP, I felt that all the BS should be kicked out.
My facility used the MSE term almost exclusively to indicate that a non urgent level 5 can be asked by registration to pay a fee if they would like to proceed.
After thanking God that for whatever reason I ordered a test or scan that I had no clinical reason for ordering but it ended up surprising me and showing something serious…I don’t feel the provider should shoulder the liability to appease the hospital. The BS helps with the throughput numbers and honestly, if they stopped coming we wouldn’t need as much staff and certainly not the APP’s.
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u/coastalhiker ED Attending 22h ago
The reason they cite EMTALA is that it’s even more punitive to the doctor. No malpractice coverage that I have ever seen covers EMTALA violations.
It’s lawyers doing what lawyers do, exploit the system to everyone else’s detriment, just because they can. Fuck any ethical boundaries.
Also, your example of the chronic abdominal pain is exactly why one of my attendings wouldn’t do any work up for these patients with a non-surgical exam. Nothing to see here is no work up complete for a chronic issue.