The long-simmering battle between physicians and hospitals over EMTALA call coverage went public in an ugly way in December when a West Virginia hospital and a group of cardiac surgeons locked horns in state and federal courts over the issue of compensated trauma call.

The physicians fired the first shot by filing a state court action trying to block hospital attempts to enforce trauma call coverage with possible loss of privileges. Published reports indicate that the surgeons also complained about payment to neuro-surgeons being unfair and that the hospital required the physicians to follow transfer rules regulating locations for surgery.

You hear EMTALA blamed for call problems, but the truth is that call was a problem in 1986 before EMTALA and it is still a problem -- but now there is a penalty for refusing call.

From the reports, it appears that the hospital -- Charleston Area Medical Center -- has three campus locations, and prohibits transfers from the central trauma center to the other two campus facilities, consistent with federal EMTALA criteria for appropriate transfers. The cardiac surgeons counter that the trauma center is not used for cardiac surgery in the system.

PAYMENT MAY VIOLATE FEDERAL LAW

The hospital has also offered the physicians $2,000 per response to the hospital to provide care, which amounts to 10 to 12 times per year, according to hospital representatives, which has been rejected by the physicians. Financial demands from the surgeons, apparently representing all of the available surgeons in the market, are characterized by the hospital as "in excess of the fair market value of the services, which would place the physicians and hospital in an "anti-kickback" and Stark violation situation where criminal charges could result.

In addition to the violation potentials for EMTALA, Stark, and anti-kickback laws, the demand for compensation sets up the hospital for financially devastating costs for call coverage according to Mark Kadzielski, head of the healthlaw division of Fulbright & Jaworski, Los Angeles.

"Paying doctors to be on call--whether or not they come in sets hospitals up for fraud investigations and for the poor house at the same time." Kadzielski said. "It becomes a slippery slope for hospitals who pay one group of specialists to be on call and then have to turn around and pay other speciallists and subspeciallists to take call."

PHYSICIANS CANNOT BAND TOGETHER TO FORCE PAYMENT

The hospital retaliated with a suit of its own -- this time in Federal Court -- alleging that the physicians are engaged in federal anti-trust violations by conspiring to force the hospital to compensate them for on-call services when they do not actually consult or provide service to a patient.

The federal law has frequently seen Federal Trade Commission actions against physicians who try to illegally negotiate as a unit. Threats to withhold services may run afowl of the anti-trust laws as well, and threats to refer patients elsewhere may violate the Medicare fraud and abuse where anyone offers or requests compensation tied to referrals.

The West Virginia case is just the tip of the iceberg as hospitals across the country struggle with the same issues of physicians demanding pay for call coverage. The collective action of physicians in potential violation of the anti-trust laws is also typical of developments in many areas of the country. At the same time, hospitals are faced with the choice between violating the law and meeting physician demands or complying with EMTALA and other laws at the risk of losing their medical staffs. This case will likely be one of many before the courts as physicians and the healthcare system in the country finds a functional solution.

NOT AT ANY PRICE

The nasty truth still lurking below the public awareness is that paying for call is often only the surface issue. Hospitals report that even when they pay physicians for call coverage, response times and availability do not improve unless the physician must remain in-house. Call coverage is becoming more of a life-style issue for many physicians who want a lucrative practice without the
interruptions from emergency calls that cut into revenues and interrupt their home life.

One hospital CEO has advised that the issue has become whether there is any price that is enough to get physicians to take call. He spoke of an incident where there was a gap in a call schedule when a serious case presented. He personally called a specialist after repeated calls from the ED failed to get a response, and offered the physician any price he wanted to come in, and the physician refused the case.

THE PUBLIC WANTS TIMELY CARE

In the mean time, program after program on television networks explore the backlog in emergency departments across the country, which is due in part to delays in getting on-call specialists to come in and see patients in many cases. In a time when physicians are calling for malpractice protection from Congress, the same members of Congress are getting deluged by complaints of citizens waiting for care or dying in emergency departments due to call issues. The same people complaining to Congress are likely to complain to advertising malpractice lawyers as well.

The balance between hospital solvency, proper patient care, and regulatory compliance on the one hand and physician compensation, life-style, and responsibility on the other hand is not going to reached easily or without severe confrontations.

"This is the blockbuster issue of the decade," according to Kadzielski.