CNM/CM Legal Exposure in Triage - EMTALA Part 3

Peter Iduwo                         unsplash image

Friedman and Zhang

In the midst of enthusiasm and medical society endorsements for the data of Jun Zhang et al, the Friedman data do remain scientifically viable and legal for triage evaluation purposes. Admitting a patient at 4 cm is very unlikely to expose a triage midwife to an EMTALA violation, or even a civil claim for negligence, as long as a proper screening or labor evaluation is performed and documented.

To date, there have been no judicial determinations or publications which establish that the Friedman data represent a danger to patients or is an inferior model of care. In the midst of ACOG/SMFM endorsements, many institutions may officially adopt the more contemporary Zhang model. However, as a triage practitioner, it is important to consider all information, including the Friedman data, and how it may or may not critically differ from Zhang et al. It may be helpful for clinicians to remember that graphs and other forms of data are, at best, recommended guidelines for practice and do not represent standard of practice.

Can Midwives Practice With Two Labor Progression Models?

The reality is that triage midwives must still, essentially, practice amid two different labor progression models. Triage CNMs/CMs are encouraged to explore and internalize not just the differences, but also the similarities of the two models. Keep in mind that Friedman has published the fact that he never intended for 4 cm (or any other dilatation marker) to represent the start of active labor. While Dr. Friedman's labor progression modeling remains viable, midwives should consider his data in the context of the contemporary research of Jun Zhang et al. Being cognizant of the historical, as well as the contemporary research regarding labor progression models, can only serve to validate your triage management plan.

What is legally at stake, in obstetrical triage care, involves the following: a premature discharge home of actively laboring individuals, failure to recognize or diagnose conditions requiring extended monitoring, or failures to properly transfer patients with emergent presentations.1 These failures can result in serious harm, violation of EMTALA, and exposure to legal claims for medical malpractice and wrongful death. 2

Martha Dominguez de Gouvia                           unsplash image

Whether pregnant patients at term are discharged home from triage before 6 cm dilatation or admitted to labor and delivery prior to attaining 6 cm, each of these decisions affects the safety and well-being of laboring women and their unborn babies. From a medical-legal standpoint, only one triage decision is more likely to violate EMTALA and provoke a lawsuit for midwifery malpractice.

Alicia Petresc       unsplash image

Over-reliance On Isolated Numerical Indicators of Dilatation?

Triage evaluations must not involve over-reliance on a static number associated with dilatation of the cervix e.g. 4 cm or 6 cm. A triage midwife who discharges a contracting individual at term, dilated less than 6 cm, may rely on the Zhang data for support, but only in low-risk circumstances. As long as the triage evaluation is reassuring, and meeting the stability and transfer requirements of EMTALA, risks for legal liability may remain relatively low.

Any risk assessment drastically changes, however, if the same individual and unborn baby are determined to have known risk factors, recent trauma, abnormal prenatal course, non-reassuring physical findings, or other concerning signs. If pre-6 cm discharge is accomplished in the midst of any these findings, the triage midwife may have: 1.) violated EMTALA (either by inadequate MSE or inappropriate transfer). 2.) created clear and convincing evidence of negligence and midwifery malpractice.3

By comparison, choosing to admit a contracting woman at 4 cm, mistakenly assessed to be in active labor, would not be a violation of EMTALA. EMTALA is violated in situations of inappropriate discharge, not premature admission.4 Regardless of the fact that a faulty assessment may have increased the risk for arrest of labor, induction of labor, cesarean section for failute to progress etc., EMTALA is not violated unless there is evidence of discriminatory medical screening.5 Furthermore, a civil lawsuit based on this fact pattern will, likely, lack the necessary legal elements to establish negligence.6

Francesco Ungaro                           unsplash image

Triage Dilemmas; When to Admit and Discharge?

The absence of obvious legal consequences for early L&D admissions from triage is not presented to suggest that admitting a patient prior to 6 cm is more advantageous for pregnanct patients than observing labors with patience, awareness, and careful surveillance. Triage decision-making requires knowledge of the applicable scholarly evidence, expertise, and the experience of attentive midwives. Institutional policies or protocols that attempt to remove decision-making from clinicians is inappropriate.

Strict hospital policies and protocols that delay admissions from triage until 6 cm dilatation should always contain addenda or contingency clauses. Circumstances prior to 6 cm dilatation, which encourage admission to labor and delivery, should be considered regardless of an arbitrary measurement of cervical dilatation. Finally, it is wise, in every medical evaluation, to resist just treating a number. Clearly, a broader assessment of the patient is required.

1. Emergency Medical Treatment and Active Labor Act. 42 CFR 489.24 (a)(1)(i). Interpretive Guidelines for (a)(1)(j).

2. Angelini DJ, Mahlmeister LR. Liability in Triage: Management of EMTALA Regulations and Common Obstetric Risks. J Midwifery & Women's Health. 2005;50(6):472-478.3

3. Terp S, Wang B, Burner E et.al. Penalties for Emergency Medical Treatment and Active Labor Act Violations Involving Obstetric Emergencies. West J Emerg Med. 2020: 21(2):235-243.

4. Stanger, KC EMTALA:GUIDE FOR EXAMS, TREATMENTS AND TRANSFERS. Holland & Hart LLP. 2018: 1-19.

5. Summers v. Baptist Medical Center Arkadelphia, 91 F. 3d 1132 (8th Cir. 1996).

6. Power v. Arlington Hospital Association, 42 F. 3d 851 (4th Cir. 1996).

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