There exists a common misconception that both the Centers for Medicare and Medicaid Services (CMS) and the Joint Commission consider “severe pain” to be an emergency medical condition under the Emergency Medical Treatment and Labor Act (EMTALA), and that the law mandates the emergency physician to prescribe medication to treat a patient’s pain. The short answer to the title question is, “No.” Severe pain is NOT in and of itself an emergency medical condition under EMTALA. The long answer is, as your clinical instinct would suggest, “It depends.”

First, any individual presenting to the emergency department of a Medicare participating hospital with pain of any kind or degree, including “severe pain,” must be provided an appropriate medical screening examination (MSE) to determine if there is an emergency medical condition (EMC).¹

Many physicians, hospital administrators, and even hospital attorneys erroneously believe that if a person does not have an emergency condition,

EMTALA’s requirements are never triggered. That is not legally accurate. The medical screening requirement is triggered anytime an individual requests “examination or treatment for a medical condition.” The statute doesn’t say, “for an emergency medical condition.”^1-2 Pain is certainly a medical condition. Therefore, anyone, including known chronic pain patients, presenting to the emergency department with any pain must be medically screened to determine if that pain is or is not a manifestation of an emergency medical condition.¹

That’s the whole purpose of EMTALA’s mandated MSE – to determine if the patient’s presenting complaint is an emergency medical condition.³

Second, and always crucial when interpreting EMTALA, one must examine the definitions contained in the federal statute and CMS’s implementing regulations to determine what constitutes an EMC under the law. The government defines the term “emergency medical condition” to mean a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in:

1. placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,
2. serious impairment to bodily functions, or
3. serious dysfunction of any organ or part.⁴

“Severe pain” alone is not sufficient to establish the presence of an emergency medical condition; it must be “severe pain such that the absence of immediate medical attention” could reasonably be expected to result in very bad things happening to the patient.⁵ For example, the chronic back pain patient with “severe pain” that’s a “12” out of a possible 10 does not have an emergency condition if he does not need immediate medical attention for an aortic aneurysm that’s ruptured, an epidural abscess, a herniated disc that’s producing serious neurological loss, or some other true emergency condition. Thus, the patient with just “severe back pain” that is not a manifestation of serious disease does not have an emergency medical condition as defined by EMTALA.

The courts have interpreted the “bad things happening to a patient” phrasing in EMTALA to mean “imminent danger of death or serious disability” or “imminent danger of death or a worsening condition that could be life threatening.”⁶

Further, once you determine that no EMC exists, EMTALA ends. Your only obligation thereafter is to treat the patient according to standard of care or any applicable state laws. Frequent false comments related to pain and EMTALA found in the medical and legal literature or in statements from CMS, state surveyors, or EMTALA pundits are included in the box. In considering the questions, be cautious to differentiate what is required by law

(EMTALA) from what is considered “standard of care” and/or compassionate or “ethical” care.

Questions related to the evaluation and management of pain in the ED under EMTALA:

Q: Is failure to treat severe pain an EMTALA violation?

A: No. An emergency physician has no legal or regulatory duty to provide any pain relief or medication (including acetaminophen, ibuprofen) to a patient who reports pain, even “severe pain.” In addition, the emergency physician has no legal obligation to provide complete pain relief or administer opioids under any scenario. Under EMTALA, your duty as an emergency physician is to medically screen each patient presenting to the emergency department to determine if their pain is due to an emergency medical condition. If no EMC is identified, EMTALA ends, irrespective of the pain severity, and you have no obligation whatsoever under law even to treat the pain.⁷ CMS requires hospitals to have policies to assess a patient’s pain and document the assessment, but there are no regulations that mandate that pain treatment or providing any particular medicines, including opioids.

Q: Does EMTALA require emergency physicians to provide examination and treatment to known chronic pain patients or possible drug seekers in the emergency department?

A: Yes and no. Patients with chronic pain syndromes, such as herniated disks, fibromyalgia, trigeminal neuralgia, or migraine headaches who experience acute exacerbations frequently present to the emergency department requesting pain medications. All such patients must be examined – provided an MSE – to determine if their pain is indicative of an emergency medical condition.

The MSE must be provided regardless of how well the “frequent flyer” patient is known to the emergency department, and even if the patient had just left the emergency department a few hours ago. Furthermore, recognize that the term “medical screening” is misleading; the scope of the examination required under EMTALA is whatever it takes to determine if an EMC exists. Certainly, the physician can take into account what is known about the patient, history, past CT scans, recent visits to the emergency department or pain clinic, etc.

The physician would then decide if any additional workup is needed to determine if an emergency condition exists. But every time known chronic pain patients or potential drug seekers present to the emergency department, they must be put through the usual process and physician examination to determine if an EMC is present.¹ Avoid the error of not providing these patients with your usual competent and thorough medical/neurological examination each and every time they present.

Once the MSE reveals the pain is not indicative of a serious medical condition needing immediate medical attention, the care from that point forward is not controlled by EMTALA. Therefore, the emergency physician has no risk under EMTALA for discharging paatients without prescribing requested narcotics or any other medication.

Dealing with chronic pain patients or drug seeking patients is always difficult. To address the issue, a number of states convened emergency provider workgroups to establish opioid management protocols for the emergency department. For one example, see the Washington State ACEP Chapter/Washington State Department of Health opioid prescribing guidelines available at www.washingtonacep.org/painmedication.html. ACEP released opioid prescribing guidelines last year, available online at: www.acep.org/Clinicalpolicies

Q: Is there any obligation under EMTALA to refill pain medication prescriptions?

A: No. “I lost my pain medicine prescription” is a frequent complaint in the emergency department. There is no legal obligation to refill anyone’s pain prescriptions. However, the patient with the “Rx Refill” complaint, whether it is for pain meds or any other medicine, must still undergo a medical screening examination to determine if an EMC exists.³ If there is no EMC, EMTALA ends, and the physician can use his or her medical judgment to decide whether or not to provide the prescription.

Q: During triage, can the triage nurse or a hospital case manager inform patients that they have X number of emergency department visits this year and they are being monitored by a statewide ED visit management system? Or, can a chronic pain patient be told in advance of the MSE by the emergency physician that his regular doctor has left instructions with the emergency department not to use opioids?

A: No! Only after the MSE has been completed and reveals no EMC can this type of information be given to the patient. CMS will not allow hospitals to do anything that may “unduly discourage” the patient from staying in the emergency department to receive a medical screening exam.⁸ There is no question that the hospital’s intent in providing this information, at least in part if not in total, is to discourage the patient from being seen. Furthermore, from a medical or patient safety perspective, how can you be sure that the patient doesn’t have a real EMC at this moment without conducting a proper medical examination? Even those who cry wolf will eventually experience a life-threatening event.

Q: Do Joint Commission regulations require the patient’s pain to be reduced or treated with opioids?

A: No. The Joint Commission holds that all patients have a right to pain control. It specifically requires the hospital to conduct a comprehensive pain assessment and then either treat the patient’s pain or refer the patient for treatment. Thus, there is no obligation to treat the patient’s pain in the emergency department.⁹ The emergency physician may judge after the MSE that the patient’s pain, whether acute or chronic, is best managed by bed rest, heat/cold, physical therapy, or simple referral back to the patient’s private physician or a pain management specialist. There is no Joint Commission standard requiring the hospital or physician to provide pain medicines to the patient in the emergency department or via a prescription.

Q: At the time of discharge the patient’s pain scale number is the same as or higher than initially at triage; does this pain score mean the patient is being discharged in an unstable condition?

A: No. Discharging patients from the ED without relieving their pain is not a violation of EMTALA. Unrelieved pain is not an EMC and doesn’t mean the patient is unstable under the law. Throughout recorded history and for the foreseeable future, plenty of patients have left and will leave the ED without the physician relieving their pain to their satisfaction. As long as the emergency physician has performed an appropriate medical screening exam and determined that an EMC was not present, the EMTALA obligation was met. Thereafter, the treatment, discharge, transfer, or referral of the patient for pain management is not controlled by EMTALA in any way.

Summary

Severe pain by itself is not an EMC; it is only severe pain such that the lack of immediate medical attention would reasonably be anticipated to lead to life- or limb-threatening consequences. Emergency physicians have no EMTALA obligation to make any patient pain-free or even to improve the patient’s pain. Moreover, emergency physicians should never feel compelled to prescribe opioids for emergency department patients complaining of pain, either because of perceived EMTALA requirements or because the Joint Commission mandates pain control. The choice of type, modality, and amount of pain relief, if any is entirely up to the treating physician. We all must determine our own clinical approach to this difficult issue, but neither EMTALA nor Joint Commission standards are relevant to our medical decision-making.

Dr. Bitterman is president and CEO, Bitterman Health Law Consulting Group, Inc., in Harbor Springs, Mich. He is a member of the ACEP Medical Legal Committee.

About LegalEase

ACEP’s Medical Legal Committee sponsors these articles addressing topics of interest to ACEP members. If you have legal questions you would like discussed in print, please submit them to Dr. Louise B. Andrew at acep@mdmentor.com. Please don’t disclose any details of a pending legal case.

If you need advice regarding litigation stress, please contact Marilyn Bromley, ACEP Director of Emergency Medicine Practice, at 800-798-1822, ext. 3231, or by email at mbromley@acep.org.

References

1. 42 USC 1395dd(a).
2. 42 USC 1395dd(b) and (c). It is true that EMTALA’s stabilization and transfer requirements are not triggered unless the hospital determines, after the MCE, that the individual has an emergency medical condition.
3. Bitterman RA. Providing Emergency Care Under Federal Law: EMTALA. Published by the American College of Emergency Physicians, January 2001; Supplement 2004. Second printing.
4. 42 USC 1395dd(e); 42 CFR §489.24(b). Emphasis added.
5. 42 USC 1395dd(e)(1). Emphasis added.
6. E.g., Thornton v SW Detroit Hospital, 895 F2d 1131 (6th Cir 1990); Phipps v Bristol Regional Medical Center, No 96-5786, 1997 US App LEXIS 17919 (6th Cir 1997); and Camp v Harris Methodist Fort Worth Hospital, 983 SW2d 876 (Tex App. 1998).]
7. 42 USC 1395dd; 42 CFR 489.24 et seq; CMS State Operations Manual (SOM), Appendix V – Interpretive Guidelines – Responsibilities of Medicare Participating Hospitals in Emergency Cases – EMTALA, Effective May 29, 2009, with revision 60, effective July 16, 2010. At: www.cms.gov/manuals/Downloads/som107ap_v_emerg.pdf.
8. 42 CFR §489.24(d)(4)(iv); CMS Interpretive Guidelines §489.24(d)(4)(iv).
9. Joint Commission Standard PC.01.02.07: The hospital assesses and manages the patient’s pain.