CORRESPONDENCE
c o n t r a c t i o n s . , . " ] , t h a t the w o m a n has delivered (including the placenta). 1 Second, let me reiterate that conforming one's behavior to the various rules and laws governing interhospital transfers in any particular jurisdiction requires consultation with legal counsel. I note that Dr Kalifon is an attorney admitted to the bar in California. He also serves as General Counsel for the California Chapter of ACEP and chairs the National ACEP Medicolegal Subcommittee. Admittance to any state bar permits practicing law before almost any agency of the federal g o v e r n m e n t . Third, anyone who uses my article alone as guidance to c o m p l e t e c o m p l i a n c e with 42 USC § 1395dd or any other statute is foolish. My article attempted to translate what I believe to be a wholly incom= prehensible statutory term into medical terminology. In so doing, I decided to craft a conservative medical definition of when a patient might be "stable for transferl, That translation is provided at the close of the article: I believe that perhaps 80% to 90% of emergency physicians might agree that satisfaction of that definition would also satisfy the statutory criteria. Under this translation, a patient has reached a stage where "no material deterioration of the condition is likely, w i t h i n reasonable medical probability, to result from or occur during the transfer" when no inter= vention, diagnostic or therapeutic, is anticipated before the patient is under definitive medical care at the receiving hospital. When one includes the taking of vital signs as a diagnostic intervention, this stage is only reached by those patients who would otherwise be sent to a routine hospital floor for further e v a l u a t i o n and t r e a t m e n t some time later. My definition would therefore exclude any p a t i e n t for w h o m c o n t i n u o u s m o n i t o r i n g or hourly vital signs are indicated. I do not believe that m y translation includes all patients who are "stabilized" under the statute. However, I do believe that the converse is generally true - that patients who fit the 166/1168
definition will be conceded by most physicians, if the proper diagnosis was made, to have been "stabilized" - hence, a conservative policy. Finally, I would caution physicians anew that the purpose of the statute is to change standard operating behavior. As such, recourse to "we've always done it this way," or "everyone does it," will not justify noncompliance. Dr Kalifon also states that, under his reading of the statute, only unstabilized p a t i e n t s need to be transferred appropriately, as defined under § 1395dd(e) (2), for which he cites § 1395dd(c) (1). I agree with his comment that these sections of the statute have yet to be subjected to judicial review. I also agree that, in the event he is correct, physicians would be well-advised to comply with the requirements for appropriate transfer in any event. F u r t h e r m o r e , in m y a r t i c l e , I p o i n t e d out t h a t t h e r e are m a n y other standards on interhospital transfers that may have legal significance. For instance, ACEP has published guidelines for i n t e r h o s p i t a l transfer that closely correspond to the requirements enumerated in the statute. 2 In addition, the Joint Commission on Accreditation of Healthcare Organizations requires that a patient not be "transferred until the receiving organization has consented to accept the patient and the patient is considered sufficiently stabilized for t r a n s p o r t " and "all p e r t i n e n t medical information accompanies the patient. ''3 There m a y be state statutes as well. Finally, i note that a court might find that subsection (c) (2) is distinct from {c) (1), in which case all transfers must be "appropriate." In conclusion, ! would like to point out that the !990 statutory a m e n d : ments were not discussed in m y article. They have changed the standard of culpability. In most situations, the s t a t u t e n o w requires only "negligence" rather than a "knowing" violation. The changes were enacted to make it easier for the Department of Health and H u m a n Services to obtain civil m o n e t a r y p e n a l t i e s . In short, carelessness in compliance is Annals of Emergency Medicine
all the Inspector General need prove. I believe, however, that an inadvertent result of this change may have been to create insurance coverage for any resultant liability. This is a topic that requires state-by-state analysis of evolving insurance coverage law, a highly specialized area of law. However, at least in the area of environm e n t a l liability, some state courts have found that civil monetary penalties imposed by the government for negligent activities are covered under liability insurance contracts. 4 Malpractice insurance is a such contract for coverage of damages arising from negligent professional behavior. Therefore, once again, consultation with appropriate legal counsel is recommended.
Jut Strobos, MD, JD, FACEP US Court of Appeals Federal Circuit Washington, DC
1. 42 USC § 1395ddle) [4) (Supp 1991). 2. American College of Emergency Physicians: Principles of appropriate patient transfer. Ann Emerg Med 1990;19:337-338. 3. The Joint Commission on Accreditation of Healthcare Organizations: Accreditation Manual for Hospitals. Chicago, JCAHO, 1990, ER 1.6.2. 4. See AIU Insurance Co v Superior Court. 51 Cal 3d
807, 257 Cal Rptr 820, 799 P 2d 1253 (Cal 1990].
The Road to .Academic Respectability To the Editor: Dr White's editorial, "Annals and Academic Respectability" [November 1990;19:1338-1339], raises a number of interesting issues for ACEP and its Board of Directors, as well as for academic emergency physicians, clinical practitioners, a n d the readers of Annals. While no one would argue with Dr White's lofty goals of prod u c i n g an a c a d e m i c a l l y w e l l - r e spected journal, q u a l i t y research in emergency medicine, and funding for those producing such quality work, one might argue with both his proposed m e t h o d s for achieving this goal as well as the realism of his time frame to do so. 20:10 October 1991
CORRESPONDENCE
Just as "Rome wasn't built in a day," emergency medicine will not gain its rightful place in the house of medicine in the eyes of federal funding agencies and academic medicine overnight. It may not obtain these to the extent that we would like to see during our generation of emergency medicine practice. The road to academic respectability is long, and academic respect must be earned. Dr White appropriately raises the issue that publishing in Annals may not have the same respect to National Institutes of Health panel reviewers as publishing in other more well-respected and long-lived journals. As he states, this is a reality. However, there is nothing inherently w r o n g in p u b l i s h i n g in the nonemergency medicine literature. Alt h o u g h it would be nice to have emergency medicine journals with the maturity and respected track record of Journal of the American Medical Association or The New England Journal of Medicine, these simply don't exist. Rather than focus on the deficiencies of the current journals, I think it is important to look to the brief time during which Annals has been in publication and to look at the great changes that have occurred during this time. It is also important to remember that Annals serves as the flagship journal for the specialty of emergency medicine, which includes and, in fact, is based on, the clinical practice of emergency medicine. It seems unreasonable then to expect that Annals would become the basic science journal of emergency medicine. From the point of view of publishing in other journals, there seems in the long run nothing wrong with this. It will help, in fact, to enhance the stature of emergency medicine to see e m e r g e n c y p h y s i c i a n s p u b l i s h in other specialties' journals as well. At the same time, a long-term solution to lack of respectability for Annals lies in the sacrifice of current emergency medicine researchers to publish their work in their own journal, even though there might be some penalty for this in the short term. Without such sacrifices, the journal will never improve. Dr White's specific recommendations for improvement of the academic respectability of emergency medicine deserve comment. First, he states that ACEP has not had as a top 20:10 October 1991
priority the advancement of academic emergency medicine. It is important to recognize the contributions to academic emergency medicine that the College has in fact made: the College has funded more emergency medicine research and research fellowship programs than any other single organization, more than $1 million in the last six years. The College has maintained the Academic Affairs Committee, which has worked hard to inform academic emergency physicians of issues facing them. The College has worked to promulgate and strengthen rules for emergency medicine training through its input to the Residency Review Committee. The College has sponsored the annual Scientific Forum at the Scientific Assembly for the presentation of original research. The College has taken a lead in the revision of the Core C o n t e n t in Emergency Medicine, the very essence of academic and clinical emergency medicine. No other organization in emergency medicine can lay claim to nearly as many accomplishments in the name of the advancement of academic emergency medicine. Dr White would have us rearrange the Annals Editorial Board. This is clearly a responsibility under the aegis of the journal's editor. The direction of specific expertise from basic scientists seems appropriate and should be balanced to reflect the overall literature mix of the journal. The inclusion of single case reports or, for that matter, a basic science track, is again the decision of the editor and must be related to the overall goal of c o m m u n i c a t i n g emergency medicine, both clinical practice and basic science, to its readership. Dr White would oppose the publication of m a n y current clinical studies due to methodological flaws or inadequate numbers of patients from his point of view. Although it would be preferable to have large, t i g h t l y controlled, m u l t i - i n s t i t u tional, m i n i m i z e d double-blinded clinical trials as the only type of clinical publication in Annals, this is clearly not possible given the current level of research sophistication in emergency medicine. Many of the "less good" clinical studies that have appeared and will continue to appear in Annals will pave the way for future larger, more definitive research Annals of Emergency Medicine
studies. The Board of Directors includes m a n y from a c a d e m i c e m e r g e n c y medicine. The current mechanism for electing members to the Board is well described, runs smoothly, and is open to all members. The editor of the journal is free to appoint any academician to the Annals Editorial Board. The College, along with the Society for Academic Emergency Medicine, has cooperated on many ventures in the long-range interest of emergency medicine. The idea of a National Institutes of Health study section in emergency medicine is an admirable and laudable goal that both organizations should work toward in the future. Few would argue with Dr White's assumption that the training of researchers in emergency medicine is a long-term solution to the problem. The Emergency Medicine Foundation has used much of its money over the last six years in order to foster the growth of researchers in the specialty. Recently, there has been much more emphasis on two-year postgraduate fellowships in emergency medicine to answer the very need that Dr White describes. The ideal of centers of excellence along with appropriate funding has been and continues to be discussed as a future goal and project for the Foundation. Dr White's points should be read carefully and digested by both clinicians and academicians alike. Emergency medicine does still lack the academic respectability that will make us appear like all others in the house of medicine. As we all would like to have such respectability now, the reality of the situation is that this will be earned over a long period of time. The College has and continues to be quite interested in the topic of academic emergency medicine and will continue to do all that it can along with its other priorities to encourage the growth of the specialty. We all look forward to the days of full academic approval, respectability, and improved funding available for the future growth of the specialty of emergency medicine.
John B McCabe, MD, FACEP Program in Emergency Medicine State University of New York Health Science Center Syracuse 1169/167
c o n t r a c t i o n s . , . " ] , t h a t the w o m a n has delivered (including the placenta). 1 Second, let me reiterate that conforming one's behavior to the various rules and laws governing interhospital transfers in any particular jurisdiction requires consultation with legal counsel. I note that Dr Kalifon is an attorney admitted to the bar in California. He also serves as General Counsel for the California Chapter of ACEP and chairs the National ACEP Medicolegal Subcommittee. Admittance to any state bar permits practicing law before almost any agency of the federal g o v e r n m e n t . Third, anyone who uses my article alone as guidance to c o m p l e t e c o m p l i a n c e with 42 USC § 1395dd or any other statute is foolish. My article attempted to translate what I believe to be a wholly incom= prehensible statutory term into medical terminology. In so doing, I decided to craft a conservative medical definition of when a patient might be "stable for transferl, That translation is provided at the close of the article: I believe that perhaps 80% to 90% of emergency physicians might agree that satisfaction of that definition would also satisfy the statutory criteria. Under this translation, a patient has reached a stage where "no material deterioration of the condition is likely, w i t h i n reasonable medical probability, to result from or occur during the transfer" when no inter= vention, diagnostic or therapeutic, is anticipated before the patient is under definitive medical care at the receiving hospital. When one includes the taking of vital signs as a diagnostic intervention, this stage is only reached by those patients who would otherwise be sent to a routine hospital floor for further e v a l u a t i o n and t r e a t m e n t some time later. My definition would therefore exclude any p a t i e n t for w h o m c o n t i n u o u s m o n i t o r i n g or hourly vital signs are indicated. I do not believe that m y translation includes all patients who are "stabilized" under the statute. However, I do believe that the converse is generally true - that patients who fit the 166/1168
definition will be conceded by most physicians, if the proper diagnosis was made, to have been "stabilized" - hence, a conservative policy. Finally, I would caution physicians anew that the purpose of the statute is to change standard operating behavior. As such, recourse to "we've always done it this way," or "everyone does it," will not justify noncompliance. Dr Kalifon also states that, under his reading of the statute, only unstabilized p a t i e n t s need to be transferred appropriately, as defined under § 1395dd(e) (2), for which he cites § 1395dd(c) (1). I agree with his comment that these sections of the statute have yet to be subjected to judicial review. I also agree that, in the event he is correct, physicians would be well-advised to comply with the requirements for appropriate transfer in any event. F u r t h e r m o r e , in m y a r t i c l e , I p o i n t e d out t h a t t h e r e are m a n y other standards on interhospital transfers that may have legal significance. For instance, ACEP has published guidelines for i n t e r h o s p i t a l transfer that closely correspond to the requirements enumerated in the statute. 2 In addition, the Joint Commission on Accreditation of Healthcare Organizations requires that a patient not be "transferred until the receiving organization has consented to accept the patient and the patient is considered sufficiently stabilized for t r a n s p o r t " and "all p e r t i n e n t medical information accompanies the patient. ''3 There m a y be state statutes as well. Finally, i note that a court might find that subsection (c) (2) is distinct from {c) (1), in which case all transfers must be "appropriate." In conclusion, ! would like to point out that the !990 statutory a m e n d : ments were not discussed in m y article. They have changed the standard of culpability. In most situations, the s t a t u t e n o w requires only "negligence" rather than a "knowing" violation. The changes were enacted to make it easier for the Department of Health and H u m a n Services to obtain civil m o n e t a r y p e n a l t i e s . In short, carelessness in compliance is Annals of Emergency Medicine
all the Inspector General need prove. I believe, however, that an inadvertent result of this change may have been to create insurance coverage for any resultant liability. This is a topic that requires state-by-state analysis of evolving insurance coverage law, a highly specialized area of law. However, at least in the area of environm e n t a l liability, some state courts have found that civil monetary penalties imposed by the government for negligent activities are covered under liability insurance contracts. 4 Malpractice insurance is a such contract for coverage of damages arising from negligent professional behavior. Therefore, once again, consultation with appropriate legal counsel is recommended.
Jut Strobos, MD, JD, FACEP US Court of Appeals Federal Circuit Washington, DC
1. 42 USC § 1395ddle) [4) (Supp 1991). 2. American College of Emergency Physicians: Principles of appropriate patient transfer. Ann Emerg Med 1990;19:337-338. 3. The Joint Commission on Accreditation of Healthcare Organizations: Accreditation Manual for Hospitals. Chicago, JCAHO, 1990, ER 1.6.2. 4. See AIU Insurance Co v Superior Court. 51 Cal 3d
807, 257 Cal Rptr 820, 799 P 2d 1253 (Cal 1990].
The Road to .Academic Respectability To the Editor: Dr White's editorial, "Annals and Academic Respectability" [November 1990;19:1338-1339], raises a number of interesting issues for ACEP and its Board of Directors, as well as for academic emergency physicians, clinical practitioners, a n d the readers of Annals. While no one would argue with Dr White's lofty goals of prod u c i n g an a c a d e m i c a l l y w e l l - r e spected journal, q u a l i t y research in emergency medicine, and funding for those producing such quality work, one might argue with both his proposed m e t h o d s for achieving this goal as well as the realism of his time frame to do so. 20:10 October 1991
CORRESPONDENCE
Just as "Rome wasn't built in a day," emergency medicine will not gain its rightful place in the house of medicine in the eyes of federal funding agencies and academic medicine overnight. It may not obtain these to the extent that we would like to see during our generation of emergency medicine practice. The road to academic respectability is long, and academic respect must be earned. Dr White appropriately raises the issue that publishing in Annals may not have the same respect to National Institutes of Health panel reviewers as publishing in other more well-respected and long-lived journals. As he states, this is a reality. However, there is nothing inherently w r o n g in p u b l i s h i n g in the nonemergency medicine literature. Alt h o u g h it would be nice to have emergency medicine journals with the maturity and respected track record of Journal of the American Medical Association or The New England Journal of Medicine, these simply don't exist. Rather than focus on the deficiencies of the current journals, I think it is important to look to the brief time during which Annals has been in publication and to look at the great changes that have occurred during this time. It is also important to remember that Annals serves as the flagship journal for the specialty of emergency medicine, which includes and, in fact, is based on, the clinical practice of emergency medicine. It seems unreasonable then to expect that Annals would become the basic science journal of emergency medicine. From the point of view of publishing in other journals, there seems in the long run nothing wrong with this. It will help, in fact, to enhance the stature of emergency medicine to see e m e r g e n c y p h y s i c i a n s p u b l i s h in other specialties' journals as well. At the same time, a long-term solution to lack of respectability for Annals lies in the sacrifice of current emergency medicine researchers to publish their work in their own journal, even though there might be some penalty for this in the short term. Without such sacrifices, the journal will never improve. Dr White's specific recommendations for improvement of the academic respectability of emergency medicine deserve comment. First, he states that ACEP has not had as a top 20:10 October 1991
priority the advancement of academic emergency medicine. It is important to recognize the contributions to academic emergency medicine that the College has in fact made: the College has funded more emergency medicine research and research fellowship programs than any other single organization, more than $1 million in the last six years. The College has maintained the Academic Affairs Committee, which has worked hard to inform academic emergency physicians of issues facing them. The College has worked to promulgate and strengthen rules for emergency medicine training through its input to the Residency Review Committee. The College has sponsored the annual Scientific Forum at the Scientific Assembly for the presentation of original research. The College has taken a lead in the revision of the Core C o n t e n t in Emergency Medicine, the very essence of academic and clinical emergency medicine. No other organization in emergency medicine can lay claim to nearly as many accomplishments in the name of the advancement of academic emergency medicine. Dr White would have us rearrange the Annals Editorial Board. This is clearly a responsibility under the aegis of the journal's editor. The direction of specific expertise from basic scientists seems appropriate and should be balanced to reflect the overall literature mix of the journal. The inclusion of single case reports or, for that matter, a basic science track, is again the decision of the editor and must be related to the overall goal of c o m m u n i c a t i n g emergency medicine, both clinical practice and basic science, to its readership. Dr White would oppose the publication of m a n y current clinical studies due to methodological flaws or inadequate numbers of patients from his point of view. Although it would be preferable to have large, t i g h t l y controlled, m u l t i - i n s t i t u tional, m i n i m i z e d double-blinded clinical trials as the only type of clinical publication in Annals, this is clearly not possible given the current level of research sophistication in emergency medicine. Many of the "less good" clinical studies that have appeared and will continue to appear in Annals will pave the way for future larger, more definitive research Annals of Emergency Medicine
studies. The Board of Directors includes m a n y from a c a d e m i c e m e r g e n c y medicine. The current mechanism for electing members to the Board is well described, runs smoothly, and is open to all members. The editor of the journal is free to appoint any academician to the Annals Editorial Board. The College, along with the Society for Academic Emergency Medicine, has cooperated on many ventures in the long-range interest of emergency medicine. The idea of a National Institutes of Health study section in emergency medicine is an admirable and laudable goal that both organizations should work toward in the future. Few would argue with Dr White's assumption that the training of researchers in emergency medicine is a long-term solution to the problem. The Emergency Medicine Foundation has used much of its money over the last six years in order to foster the growth of researchers in the specialty. Recently, there has been much more emphasis on two-year postgraduate fellowships in emergency medicine to answer the very need that Dr White describes. The ideal of centers of excellence along with appropriate funding has been and continues to be discussed as a future goal and project for the Foundation. Dr White's points should be read carefully and digested by both clinicians and academicians alike. Emergency medicine does still lack the academic respectability that will make us appear like all others in the house of medicine. As we all would like to have such respectability now, the reality of the situation is that this will be earned over a long period of time. The College has and continues to be quite interested in the topic of academic emergency medicine and will continue to do all that it can along with its other priorities to encourage the growth of the specialty. We all look forward to the days of full academic approval, respectability, and improved funding available for the future growth of the specialty of emergency medicine.
John B McCabe, MD, FACEP Program in Emergency Medicine State University of New York Health Science Center Syracuse 1169/167
