Health Care / Medicine, In-House Counsel

If You Have To Play Your Legal Card, Play It Gently

A good lesson learned, but at what price?

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At the beginning of summer, I was in a meeting where a midlevel executive was briefing on a recent pitch he received from a vendor.

For those of you who do not work in-house, as a general rule, anytime a vendor comes in for a pitch, there is at least a 50/50 chance a component of their new product/software/idea has some sort of legal defect. Your job is generally two-fold: spot the legal defect with their pitch, while keeping your non-legal colleagues from prematurely signing up for the product before it is fully vetted.

Back to the sales pitch.

A particular pain point all hospitals share is the way patients are registered. At a patient’s most vulnerable, frontline employees are tasked with capturing as much information possible as allowed under a federal law known as the Emergency Medical Treatment and Labor Act (EMTALA). At a high level, this law mandates all emergent patients be treated without regard to their ability to pay for the service. Violations of the law can be severe, not to mention generate potential for bad publicity.

While that may sound like a straightforward edict, it is often difficult in practice. Does this mean I can accept insurance information from a willing patient? What if the patient clearly has a non-life threatening injury; can I speak with them about finances then?

Given the many nuances one can imagine, most hospitals play it safe and only permit their frontline team members to collect a very limited amount of demographic information from patients prior to their being seen by a clinician. And while this is the safe approach, it often results in missed patient demographic and financial information that can be difficult to obtain once the patient has been treated and discharged from the hospital.

This particular vendor had developed a program designed for a tablet that would allow the patient to input their own information from the comfort of a seat in the waiting room. As an added bonus, it also had the internet, games, and select television channels loaded to the tablet, to keep the patient entertained after they entered their information and while they waited for a doctor.

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On its face, not a bad idea or product. In theory, it had the potential to capture more patient information while keeping them happier while they waited. As any health law attorney will tell you, however, such a product would need significant testing, tweaks, and training, to ensure it passed muster under EMTALA.

Since EMTALA is universally known in the hospital world, even to non-legal team members, I thought my first mention of it would be enough for the executive to acknowledge such a product needed several more rounds of meetings and testing before we could sign up. Yet, he quickly dismissed the concern, saying the vendor said it was “EMTALA compliant” and pushing all those in the room to act with haste.

I again suggested we take a slower approach to fully vet the product, only to receive the same rebuke: the vendor said it was okay.

Unfortunately, I took the second rebuke a bit personally, and immediately retorted that it would have to wait, that I had zero doubts our Chief Risk Officer would agree with my assessment, and that I know our CEO will not act unless it is blessed by our risk officer.

My point had been made and my legal card played. The meeting was over, and everyone understood we would not be signing up for the software in the immediate future.

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The slighted executive quickly left the room after the meeting and pretty well attempted to avoid me for the days after the meeting. All of my emails were responded to with as few words as possible, until I realized our new work dynamic was unsustainable and could only harm the company if it continued.

Hat in hand, I popped by his office to offer a days to offer a late apology, which he graciously accepted. Our work dynamic has improved since then, but I wonder whether it will fully recover.

Looking back, I know I could have easily played my legal card after the meeting, in a less public setting, and still had the project slow-walked without damaging my colleague’s ego.

A good lesson learned, but at an admittedly too high of price.

Stephen R. Williams is in-house counsel with a multi-facility hospital network in the Midwest. His column focuses on a little talked about area of the in-house life, management. You can reach Stephen at stephenwilliamsjd@gmail.com.

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