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Addressing ER Staffing Issues

Christopher L Nuland, Esq.
General Counsel

It is no secret that physicians, especially obstetricians, hate emergency room calls. The disruption to personal lives, high-risk cases with little or no opportunity to decline care, and the increasing likelihood of little or no compensation have all led physicians to eschew call coverage whenever possible.

Years ago, physicians understood and accepted that ER call was an inconvenient necessity to practice, as the hospital was an essential part of the obstetrician's practice, there being no other place to birth babies or perform surgeries. However, with the advent of birthing centers, ambulatory surgery centers, and even accredited office surgery, many physicians today realize that life without the hospital often is possible, and an increasing number of Ob/Gyns have opted to forego hospital delivery privileges for the lower risk of a pure gynecological, often completely outpatient practice.

Unfortunately, this combination of factors has placed a tremendous strain on hospitals that offer emergency services (required by EMTALA to maintain obstetric care), as well as those obstetricians that retain obstetrical privileges. Quite simply, the factors mentioned above leave too few obstetricians available to provide around-the-clock coverage, leading to overly burdensome call schedules, which in turn further encourage physicians to escape the obligations of call coverage.

The obvious answer to the growing dilemma is to provide incentives for physicians to return to the emergency room. Call stipends, guaranteed payments, and civil liability protection are some of the methods being used to lure physicians back into the Emergency Department. The decision to provide economic incentives is one that can be made only by the hospital, and although medical staffs may lobby for such incentives, their bargaining is severely limited by state and federal laws that forbid true collective bargaining. For instance, current antitrust law prohibits physicians who are not "economically integrated" from collectively negotiating fees, which drastically reduces the ability of the medical staff to work together for a common solution. Moreover, under state law (Florida Statute 458.3295), physicians may not participate in a "concerted effort to refuse emergency room treatment to patients," eliminating the ability to strike or refuse to provide services. Finally, CMS interprets EMTALA as forbidding physicians from taking calls selectively by limiting their services to patients with pre-established relationships.

Some recent developments may lessen the squeeze. CMS recently ruled that hospitals are not necessarily required to provide on-call coverage for all specialties 24 hours per day, seven days per week, acknowledging that the supply of appropriately trained specialists in some regions is woefully inadequate. CMS also believes that there is a limit to how many call shifts a physician must take, although it declined to establish a national maximum. For its part, the Florida Legislature encouraged physicians to provide emergency services by lowering the cap on non-economic damages for emergency services to $150,000.

None of these actions, however, can appease the physician who needs access to hospital services and is therefore at the mercy of hospital bylaws that demand a substantial call commitment. Yet, despite the referenced legal hurdles that forbid physician collusion, physicians in scarce specialties such as obstetrics should realize that, even as individuals, they have market power. Hospitals need to be able to provide obstetric services to be viable, thereby requiring such facilities to have on-call physicians, which in turn requires the provision of sufficient incentives to encourage physicians to stay on staff and provide coverage. In future installments of this column, we will explore those market forces that can help physicians, as well as the type of incentives that hospitals may legally provide to encourage physicians to accept call responsibilities.

Information in this article does not establish a standard of care, nor is it a substitute for legal advice. The information and suggestions contained here are generalized and may not apply to all practice situations. Obtain legal advice from a qualified attorney for a more specific application to your practice. This information should be used as a reference guide only.