Hospitals with emergency facilities must provide medical screening and needed treatment to all persons who request emergency medical care, including delivering the infant of a woman in labor. The important consideration for physicians is that the law is structured to trigger the physician–patient relationship: whenever a patient presents with a request for emergency care, the patient must receive a medical screening examination from either a physician or someone under the supervision of a physician. Once the patient receives this examination, the physician will have exercised independent medical judgment on behalf of the patient, the patient will have relied on that judgment, and the physician will be required to provide all necessary care until the patient can either be discharged from the hospital or transferred to another physician.

This duty is not limited to the physicians on duty in the emergency room. Most hospital bylaws require medical staff members to assist in the delivery of emergency care if needed or to participate in a specialty call system. This contractually obligates the physician to treat persons in the emergency room when called on by the hospital. If a physician refuses to treat a patient when requested under this agreement, the hospital has the contractual right to cancel the physician’s medical staff privileges. Such a refusal also violates the physician’s duty under EMTALA and will subject the physician to sanctions under the Act. Even if the hospital wants to avoid this by not calling the physicians for indigent patients, EMTALA requires that the hospital provide on- call physicians for specialty care.

Physicians can violate EMTALA in three ways: they can refuse to do screening examination; they can refuse to provide needed care; and they can improperly transfer the patient to another facility. A proper transfer can only be done when the patient is stable, when there is a medical justification for the transfer, when the receiving hospital agrees to accept the transfer, and when all of this has been properly documented according to the standards of EMTALA. If the physician violates EMTALA, the government can impose a fine of up to $50,000 and ban the physician from participating in federal reimbursement programs. Other federal rules prevent the physician from working with any medical care institution that participates in federal reimbursement programs, making it impossible to work in most medical care jobs.

EMTALA does not create a cause of action against the physician, although it does create one against the hospital. The only basis for a patient lawsuit against the physician is medical malpractice. Unfortunately, since the physician has a physician–patient relationship with the patient, actions that violate EMTALA will probably also be medical malpractice. In addition, the hospital can sue the physician for indemnification for any losses it sustains because of the physician’s failure to comply with EMTALA. This means that the physician could end up paying for a patient’s lawsuit against the hospital for the EMTALA violation. Most troubling for physicians, a recent U.S. Supreme Court case found that EMTALA applied to the transfer of a patient to a nursing facility several months after the patient’s initial admission to the hospital. [Roberts v. Galen of Va., Inc., 119 S. Ct. 685 (1999).] This was based on the fact that she had never been stabilized after a very severe automobile accident and did suffer injuries secondary to her transfer. It raises the issue of whether EMTALA applies to every discharge or transfer of a patient, not just those that occur in the emergency department.