Ambulances held hostage: Should we stay or should we go?

By Doug Wolfberg, Esq.; and Steve Wirth, Esq.

Hospital bed delays have wreaked havoc with EMS resources and EMS personnel as ambulance crews find themselves held hostage – sometimes for hours – at emergency departments. Fill out the form on this page to download a guide to mitigating hospital bed delays, with FAQs and quick tips from Wolfberg and Wirth.

In Part 1 of this three-part series on managing hospital bed delays, we explained how federal law clearly imposes on the hospital the legal responsibility for an incoming emergency patient once the ambulance reaches the hospital’s property. While EMS may remain with the patient inside the hospital, it is purely voluntary under the law.

Here, in Part 2, we discuss factors that EMS should consider in making the decision about whether their crews should remain in the ED with the patient, and strategies EMS can employ if it does provide continuing care for hospital patients inside the ED.

First, meet and collaborate – don’t try to solve the problem in the ED

First and foremost, the hospital bed delay problem won’t be solved by nurses and EMS providers exchanging heated words in the ED. Many of the systemic problems that cause these delays in the first place are beyond the capability of front-line ED staff to address.

Instead, the senior leadership of the ambulance service and hospital (specifically the CEO, chief nursing officer and ED management staff) need to sit down in planned meetings – preferably ones that occur with some regularity – to address the myriad issues in the ED delay problem. Perhaps these meetings can also include your local EMS oversight body (i.e., EMS council or county EMS agency). Though these meetings are probably more productive without lawyers, if the hospital insists on bringing one, your EMS agency should strongly consider doing the same. If they are doing their job, the lawyers from both sides can help keep the discussion focused on the issues and reduce the likelihood that emotions will take over the meeting. Make sure your lawyer is specifically knowledgeable about these issues under both state and federal law.

These meetings must start with accepting the notion that federal law clearly makes the hospital responsible for the patient once the ambulance reaches hospital property, and EMS remaining with the patient is voluntary. Once that fact is acknowledged and accepted, productive discussions can occur on a more level playing field.

Educating hospital leadership not just on the law and CMS policy on how wall time could violate EMTALA, but also on potential solutions that can help alleviate patient offload delays is a key aspect of successful collaborative meetings. For instance, the California Hospital Association’s “Toolkit to Reduce Ambulance Patent Offload Delays in the Emergency Department” is an excellent resource document.

We helped to facilitate one such collaboration where the hospital team adopted several of these strategies, including establishing a holding room with four to six hospital beds where patients could be offloaded by EMS and triaged and monitored by ED staff while awaiting a treatment bed in the ED.

These meetings also help encourage empathy and appreciation from both sides for the problems that each encounter. Successful collaboration involves seeing the problem from the perspective of the “other side” – and when that occurs, the likelihood of implementing positive changes increases.

The decision to stay or go

EMS personnel and equipment cannot be held at a hospital indefinitely without affecting the system’s ability to address emergencies and 911 calls in the community. For that reason, and because it is clearly established that EMS remaining with hospital patients is voluntary, EMS can choose to leave the ED even before the hospital staff has “accepted” the handoff of care. The hospital cannot delay its legal responsibility for the patient simply by designating an arbitrary time when it says, “we can now accept the patient.” The responsibility for the patient belongs to the hospital upon arrival on their property.

Make sound clinical judgments

That said, remember always that patient care is the goal. We do not recommend EMS – or any healthcare provider for that matter – leave a patient unattended in cases where the patient actively requires care or monitoring and where lack of it could be harmful to the patient. And we are not advocating leaving a hospital patient just because legally you can. Having the legal right to leave the hospital and it being an ethical or proper decision are two different things. If an unattended patient experiences a bad outcome inside a hospital, and EMS is included as a defendant in a subsequent lawsuit, it is certainly possible that a jury could assign responsibility to the EMS crew if they decided to leave a patient prior to acceptance by ED staff. This should always be a question of sound clinical judgment.

To help make such proper clinical judgments, EMS systems can develop policies to identify hospital patients whose conditions may require EMS to stay with the patient, and which do not require continuing EMS care inside the hospital.

After all, data suggest that a relatively low number of ED patients are sick enough to require hospital admission, and a significant number have non-emergent and/or stable conditions. Since many EMS systems are already developing increasingly safe, specific and data-driven protocols on identifying patients who may not benefit from transport, or whose conditions can be safely managed on scene or with transport to alternative destinations (such as the Medicare ET3 program or treatment-in-place protocols), the development of clinical policies to identify which patients can safely be left in the ED without continuing EMS care would be similarly defensible both clinically and legally.

The ‘equal or higher provider’ myth

There is a longstanding EMS myth that handoffs of patient care must always be to a practitioner with an “equal or higher” level of certification or licensure than the EMS crew. This is simply not true. There are plenty of situations where the standard of care clearly contemplates otherwise. For instance, an ALS provider may hand off care to a BLS crew after performing an assessment and determining that no ALS interventions are required. It is also a myth that a patient must be physically attended to by a healthcare practitioner at all times. If this were true, there would be no waiting rooms in emergency departments!

So, in those situations where it is safe and clinically appropriate to leave the ED prior to physical assumption of care by hospital staff, EMS providers are not limited to handing off the patient to someone of “equal or higher” certification or licensure than the EMS crew. If the patient is stable and not currently requiring active care or monitoring, it is clearly within the standard of care to leave a patient without a specific practitioner who takes “physical custody” of the patient. After all, ED waiting rooms are full of sick or injured people not currently being attended to by a healthcare provider.

What about patient abandonment?

We’ve also been asked whether an EMS crew leaving a hospital patient in an ED could constitute negligence or even patient abandonment if the patient were to deteriorate after EMS leaves the ED. We are not aware of any courts having ever ruled that this practice constitutes patient abandonment.

The legal definition of patient abandonment requires abrupt termination of a provider-patient relationship without affording the patient an opportunity to obtain replacement care. It is hard to conceive how – as a matter of law – EMS providers could be found to have abandoned a patient whom they have brought to a healthcare facility that clearly has a legal duty of care upon arrival of the patient on their property. That is not “withdrawing care without affording the patient an opportunity to obtain replacement care.” It is just the opposite. EMS has brought the patient to a higher level of care. We certainly see no precedent for a claim of patient abandonment on these facts.

Of course, often in a lawsuit alleging negligence, multiple defendants are usually named, and EMS may need to defend its decision if it decides to leave the ED prior to physical assumption of care by hospital staff. That is why these decisions should always be made from a position of sound clinical judgment, guided by written clinical policies. Decisions made in the interest of patient care almost always have the added benefit of being the most legally defensible decisions.

While we do not believe there is a strong legal basis for a finding of patient abandonment in a tort case when an EMS crew makes a clinically sound decision to leave an ED prior to physical assumption of care by hospital staff, we note that some individual EMS agencies or ambulance services may have policies that prohibit their employees from leaving a patient in a hospital until physical handoff of care takes place. Of course, whether an EMS provider’s actions constitute legal abandonment are different than whether an employer may discipline or terminate an employee for violation of a work rule. So, individual EMS providers must know their specific employer’s policies (if any) that may relate to this issue.

Can EMS be held hostage by handoff signatures?

We have received reports that, in some cases, hospital staff have purposefully refused to provide EMS staff with the handoff signature that many EMS systems request when they deliver a patient to the ED. Presumably, hospital staff who do this think that EMS cannot legally leave the hospital without the handoff signature.

Handoff signatures are more of a custom or practice in most EMS systems. While it may be good practice to obtain handoff signatures, it is not a legal requirement (i.e., it is not based on statutes or regulations) in most EMS systems. And even if there is a legal requirement, if hospital staff refuses to sign, EMS can and should simply document that fact on their PCR or signature form, along with documenting the patient’s condition at the time they delivered the patient to the ED. In short, the hospital handoff signature is almost never a legal prerequisite to the EMS crew leaving the ED, and it should not be used as a tool to try to force EMS crews to provide continuing care to hospital patients. While efforts should ordinarily be made to obtain a handoff signature, it would not normally be a factor in the “stay or go” analysis.

Measure offload times

When deciding whether to stay or go, it is always best to use facts and data. EMS agencies should track and quantify the amount of time their personnel spend after arrival in the ED caring for the hospital’s patients. Also calculate your unit-hour costs of providing these services to ED patients. Once you know your unit hour costs and time spent caring for hospital patients, it is easy to determine the dollar value of your services which benefit the hospital.

A particularly helpful resource on this issue have been produced by the California EMS Authority.

If you stay: Ask for financial compensation

It is fair and reasonable for ambulance services to ask for payment of appropriate compensation from hospitals which benefit from EMS provision of care for their patients. As patients are the legal responsibility of the hospital once on hospital property, the hospital must have the staff to meet these responsibilities. If the ED is inadequately staffed, and the hospital’s solution for meeting its legal responsibilities is to rely upon EMS staff to stay with and continue care for hospital patients, EMS can certainly ask the hospital to pay fair market value for the services that EMS provides and that clearly benefit the hospital.

There is a concern under the Federal Anti-Kickback Statute (AKS) that conferring financial benefits on a referral source is a felony under the law. If the hospital and ambulance service stand in a cross-referral relationship (e.g., the hospital refers interfacility transports or discharge transports to the ambulance service), the provision of free services to the hospital by the ambulance service can be suspect under the AKS. Even if this is not the case, providing “free” services to the hospital raises a host of other issues. So, EMS asking for fair compensation for the time its personnel spend caring for hospital patients is appropriate from both a financial and a compliance perspective.

If the hospital and ambulance service reach an agreement on the payment of fair compensation for the EMS staff and resources provided while caring for the hospital’s ED patients, a written agreement or memorandum of understanding should be prepared with assistance of your agency’s legal counsel.

If you stay: Mind your scope of practice

There have been reports of EMS staff being asked to provide to hospital ED patients care that may exceed the scope of practice, knowledge or skills of an EMS practitioner. For instance, if hospital staff ask a paramedic to administer a drug that is outside the approved EMS formulary, or to use a non-EMS device, it is a sure ticket to liability for EMS to agree to provide such out of scope care. Hospital staff cannot unilaterally expand the scope of practice of EMS practitioners just because they’ve asked them to perform a certain skill or furnish a specific treatment inside the ED. As an EMS provider, in almost all states you are still governed inside the hospital by your applicable EMS scope of practice and standards of care.

In cases where the hospital’s solution to its own understaffing is to ask EMS to provide continuing care in the ED, CMS guidelines under EMTALA also require the hospital to “assess whether the EMS provider can appropriately monitor the individual’s condition.” If a hospital asks an EMS practitioner to provide treatment that is beyond their scope of practice or level of experience, the hospital may well be violating EMTALA merely by making such an improper request. Any EMS provider on the receiving end of such an improper request should immediately refuse to engage in any unauthorized practice, and document it accordingly.

If you stay: Let the hospital know your limits

Unfortunately, many hospitals simply won’t guarantee or promise a maximum amount of time in which they will “hold” an EMS crew to provide care to a hospital patient in the ED. This creates an untenable situation for the ambulance service. Unless there is some agreement with the hospital on maximum times that an ambulance crew will stay in the ED with a patient, the ambulance service may on its own need to develop a policy that sets those limits. The policy should clearly describe the conditions and time limits within which the ambulance service may remain with hospital ED patients as a courtesy. Again, as we discussed above, these should be clinically appropriate policies developed in conjunction with the ambulance service’s medical director. The ambulance service should inform the hospital of its policy – preferably communicating it in writing – before implementing it.

For instance, if the ambulance service adopts a policy that its maximum time for crews to remain with an otherwise stable ED patient is 20 minutes, it can inform the hospital of that fact, and by providing a copy of its written policy put the hospital on clear notice of its time limits for this voluntary use of the EMS staff. Finally, any EMS policy on this subject should state that EMS staff remaining with the patient is subject to change (in times of high EMS demand, etc.) and that EMS always has the right to decline to provide in-hospital care as operational needs dictate.

Hospital collaboration, policy

Since the decision by EMS to remain with hospital patients brought to the ED by ambulance is voluntary under the law, EMS agencies and hospitals should meet and collaborate to determine under which circumstances, and for how long, that will occur. EMS agencies should have policies to help make clinically appropriate decisions on whether to remain with a patient when hospital staff are unavailable, being mindful of the fact that data show a significant portion of ED patients are likely to be stable and have non-emergent conditions.

In our next segment, we will examine strategies EMS agencies can deploy – unilaterally if necessary – once they’ve made the clinically appropriate decision to leave the ED prior to physical assumption of care by hospital staff.

About the authors

Doug Wolfberg and Steve Wirth are EMS attorneys and founders of Page, Wolfberg & Wirth, the nation’s preeminent EMS law firm. Both served as longtime EMS practitioners and EMS system administrators prior to attending law school. Both are among the nation’s most respected EMS leaders, and each have over 40 years of EMS industry experience.