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Restriction on Transfers

Before a patient may be transferred to another medical facility, a physician must certify that the transfer is in the patient's best medical interests:

a physician (within the meaning of section 1395x(r)(1) of this title) has signed a certification that, based upon the reasonable risks and benefits to the individual, and based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual and, in the case of labor, to the unborn child from effecting the transfer, or

if a physician is not physically present in the emergency department at the time an individual is transferred, a qualified medical person ... has signed a certification described in clause (ii) after a physician ... in consultation with the person, has made the determination described in such clause, and subsequently countersigns the certification; and -- ... A certification ... shall include a summary of the risks and benefits upon which the certification is based.

This requirement is intended to ensure that a physician evaluates the patient's condition. As discussed in Chapter 9, such an evaluation creates a legal duty for the physician to care for the patient. Triggering this duty was a prime goal of the act. The drafters wanted to discourage the common practice of doing the financial screening before the patient was allowed to see the physician. The courts allow patients to sue for failing to screen, irrespective of whether there was also an inappropriate transfer.[220]

This allows a patient to refuse a transfer if this is a knowing refusal made after being apprised of the risks and benefits of transfer. Since a formal transfer is unnecessary if the patient is stabilized, this implies that a patient refusing transfer still requires medical care either to prevent deterioration of the patient's condition or the delivery of her baby. Such a patient cannot be discharged from the hospital until he or she is stabilized.

[220]Thompson v. St. Ann's Hosp. 716 F Supp 8 (Ill. 1989).

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