Observation Care: Ethical and Legal Considerations for the Emergency Physician

The Medicare observation rules remain controversial despite Centers for Medicare and Medicaid Services revisions and the new 2-midnight rule. The increased financial risks for patients and heightened awareness of the rule have placed emergency physicians (EPs) at the center of the controversy.

This article reviews the primary ethical and legal (particularly with respect to the Emergency Medical Treatment and Active Labor Act) implications of the existing observation rule for EPs and offers practical solutions for EPs faced with counseling patients on the meaning and ramifications of the observation rule.

We conclude that while we believe it does not violate the intent of the Emergency Medical Treatment and Active Labor Act to respond to patient questions about their admission status, the observation rules challenge the ethical principles of transparency related to the physician-patient relationship and justice as fairness. Guidance for physicians is offered to improve transparency and patient fairness.