Double Jeopardy in OB Triage - EMTALA Part 2

Jimmy Conover                   unsplsh images

Requirements of EMTALA in OB Triage

In American criminal law, Double Jeopardy protects a defendant from being punished twice for the same offense.1 In civil law, which governs malpractice in healthccare, defendant midwives can be punished twice for the same offense. Although the criminal version of Double Jeopardy does not apply in civil cases, the term is defined as “a risk or disadvantage incurred from two sources”.2 Obstetrical triage units are frequently staffed by Certified Nurse-Midwives and RNs who may encounter Double Jeopardy from an unlikely pair; Federal Law and Evidence-Based Practice.

Outside of the Emergency Department, OB triage is an area of hospital specialty care requiring compliance with EMTALA. The requirements of EMTALA apply directly to hospital triage midwives and, as the Statute’s title suggests, the requirement to determine and/or rule-out the presence of active labor.3 Connected to the specific active labor features of EMTALA, is the necessity for triage midwives to perform evidence-based evaluations and disposition planning for pregnant individuals that present to triage. Labor progression modeling, and its associated research, play a significant role in assisting triage CNMs (and RNs where necessary)to comply with EMTALA and establish legal, evidence-based plans for triage care.4,5

Alexander Grey                           unsplash images

Freidman and Zhang Research Review

Research data presented by the historic work of Dr. Emanuel Friedman and the contemporary work of Dr. Jun Zhang et al, are based on differing cohort demographics, methodological analyses and dilatation starting points for the onset of active phase labor. Differences in labor progression evidence can complicate the triage assessment process, creating opportunities misinterpretation of the existing science. Triage midwives, their colleagues, and collaborators, must be clear and in agreement with plans for care, while thoroughly understanding the existing scientific evidence.

Historical vs. Recent Practice

The statutory demands of EMTALA, combined with conlicts between historical, accepted practice and newer data may have legal ramifications for the practice of triage midwives. A nurse-midwife can espouse the basic talking points of labor progression models while lacking deeper insight into their relative strengths, weaknesses, and application to triage care. A thorough understanding of historical dilatation modeling, along with the newer model, is important for the most responsible triage care and can elevate the professional standing of nurse-mideifery practice in triage settings. 6,7,8.

For nearly six decades, midwives and obstetricians had utilized the reasearch and labor progression data of Friedman. An assumption formed from the Friedman graph was that 4cm dilatation introduced the onset of active labor. In 2002, a novel labor progression model emerged, challenging the Friedman curve, and suggesting new criteria and expectations regarding progress of labor (5 - p. 284) Based on their research, Jun Zhang et al postulated that onset of active labor had changed since Friedman’s original research and that a new model suggested onset of active labor may be slower than in Friedman’s model, not occuring until approximately 5-6 cm dilatation. (5-p.826)

Sterling Lanier                              unsplash images

Friedman Response to Zhang

In April of 2015, Friedman and Cohen published a review in the American Journal of Obstetrics and Gynecology (Green Journal), responding to new recommendations and endorsements from ACOG/SMFM regarding the Zhang et al data. In the review, Friedman stated that he had never suggested that active phase labor began at 3 cm or 4 cm and that he had always discouraged a specific degree of dilatation to identify the onset of active phase labor. He insisted that correct determination of active phase labor can only be correctly identified by evaluation of individual, serial clinical examinations as each woman’s labor progresses.9 In addition, Friedman opined that Zhang’s analyses were based on faulty and unverified analytic methods and that the ACOG/SMFM recommendations were “likely to impose undue risk on mother and fetus” 10,11

Zhang Response To Friedman

In June of 2015, Zhang replied to the commentary of Friedman and Cohen, noting differences in their respective research philosophies and approaches to constructing a labor curve. Zhang also noted that exclusion of certain research data may have contributed to the slowing of the labor curve in his model, concluding that labor progression graphics are illustrative and may not be instructive in managing labor due to pattern variation and subjective measurement errors. 12 Friedman and Cohen replied back in June 2015. In this communication, Friedman disagreed with Zhang’s interpretation of normal labor progress, noting that existing data showed the application of the ACOG/SMFM recommendations may have slightly decreased the cesarean rate, but at the expense of a greater than 2-fold increase in the rate of very low Apgar scores. 13

Alexander Grey                    unsplash images

Since this exchange of commentary, other authors have posed the question of how clinicians should practice and with what labor management thresholds? Dr. Aaron Caughey’s review of the literature led him to observe that all labor labor progression studies are observational and suggestions regarding how labor management should occur and affect outcomes are conjecture. He noted, also, that both Friedman and Zhang had recently been circumspect about whether and how their data should be used to dictate labor management. Caughey did express support for clinicians who exhibit more patience managing labor, as long as providers do not ignore signs of fetal or maternal compromise.14 Other authors have contributed to the discussion, calling for further research and utilization of prospective data-collection. 14 p.5, 15,16,17 (TBC). . .

1. U.S. Const., 5th Amendment, Rights of Persons: Double Jeopardy.

2. Oxford English Dictionary, 2d ed. (Oxford University Press, 2004) “double jeopardy”.

3. Emergency Medical Treatment and Active Labor Act, 42 USC 1395dd (1986).

4. Friedman EA. Primigravid labor: a graphicostatistical analysis. Obstet Gynecol. 1955; (6):567-589.

5. Zhang J. Troendle JF, Yancy MK. Reassessing the labor curve in nulliparous women: TRANSACTIONS OF THE TWENTYSECOND ANNUAL MEETING OF THE SOCIETY FOR MATERNAL-FETAL MEDICINE. Am J Gynecol. 2002; 187(4):824-828.

6. Killion, M. The Maternal Fetal Triage Index: A Standardized Approach to OB Triage. HOT TOPICS IN MATERNITY NURSING. 2016; 4(6): 372.

7. Ruhl, C, Scheich B, Onokpise B. Interrator Reliability Testing of the Maternal Fetal Triage Index. J Obstet Neonatal Nursing. 2015; 44(6): 710-712

8. Moudi A, Iravani M, Mirghafourvand M, Exploring the concept and structure of obstetric triage: a qualitative content analysis. BMJ Emergency Medicine 20, 74 (2020).

9. Rosenbaum S, Cartwright-Smith L, Hirsch J. Case Studies at Denver Health: patient dumping in the emergency department despite EMTALA; the law that banned it. Health Affairs. 2012;31(8): 1-7.

10. Emergency Medical Treatment and Active Labor Act, 42 CFR 489.24(b), definition of Transfer. 42 USC 1395dd(e)(1)(8); 42 CFR 49.24(b) definition of emergency medical condition.

11. Emergency Medical Treatment and Active Labor Act, 42 CFR 489.24: Special responsibilities of Medicare hospitals in emergency cases; (2)(ii). 42 CFR 489.24(a)(i), (c).

12. Emergency Medical Treatment and Active Labor Act. 42 USC 1395dd(d); 42 CFR 1003, 103(e); 45 CFR 102.3.

13. Zibulewski J. The Emergency Medical Treatment and Active Labor Act (EMTALA): what it is and what it means for physicians. Baylor University Medical Center Proceedingd. 2001; 14(4) : 339-346.

14. Cohen WR, Friedman EA. Am J Obstet Gynecol. Perils of the new labor management guidelines. Am J Obstet Gynecol. April 2015: 420-427.

15. Cohen WR, Friedman EA. Misguided guidelines for managing labor. Am J Obstet Gynecol. June 2015: 753-754.

16. Hoffman M, Goos J. Maternal and fetal impact of SMFM guidelines to prevent the first cesarean delivery. Am J Obstet Gynecol.. 2015;212(Suppl)S112-3.

17. Zhang J, Troendle J, Grantz KL, et.al. Statistical aspects of modeling the labor curve. Am J Obstet Gynecol. June 2015; 750-752, 750 e 1.

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