Turned away: Some Chicago hospitals still routinely divert ambulances from ERs despite dangers

Copyright 2019 Milwaukee Journal Sentinel. Reprinted with permission.

Lenise was her third child, after two boys. Johnson always wanted a girl and knew this would be her last baby. Her battle with chronic lupus, which causes the immune system to attack healthy organs, had intensified.

The baby had been born four weeks earlier. Though premature, she was healthy except for what seemed to be a minor cough but later was determined to have been pneumonia.

Around dinnertime, Johnson peeked into the baby’s bedroom. Lenise was still. The mother tried to wake her. Nothing. Panicked, she called 911. Within minutes, a Chicago Fire Department rescue squad arrived, paramedics rushing to the tiny apartment.

Almost immediately, they determined the infant was in full cardiac arrest. Paramedics started CPR, inserted a tube to help Lenise breathe and called the University of Chicago’s Wyler Children’s Hospital, a highly ranked facility for seriously ill children on the South Side.

Just five blocks away, Johnson knew the hospital well. Lenise had been born there.

“We’re right down the street from you,” a paramedic told the emergency room, according to a transcript of that call. “We’re ready to roll down by you guys.”

But the nurse in charge had bad news: The hospital was turning away all ambulances. Its intensive-care unit was full.

She directed the paramedics to St. Bernard Hospital, over two miles away, down busy streets at rush hour. St. Bernard’s emergency room was open, but the hospital was not capable of the specialty care required for serious cases like Lenise’s.

“Fine, then we’ll go to St. Bernard’s,” the paramedic said, then made what sounded like a final plea: “We’re about five blocks from you.”

The nurse was firm: “Sorry ... I cannot accept your patient.”

It took 10 minutes to get to St. Bernard. Doctors and nurses resuscitated and stabilized Lenise, but it quickly became clear the case was too much for that hospital.

The staff began calling other hospitals, trying to find one that would take the infant. They tried at least eight. None would accept her. All were closed to ambulances.

Finally, after four hours, Lenise was put in another ambulance, headed nine miles away to Cook County Hospital, which, like the University of Chicago hospital, could provide advanced pediatric care.

But it was too late. Lenise died.

Hospital oversight lags

Lenise’s death sparked outrage, political hearings and a federal lawsuit. Lawmakers pushed for stronger oversight. Years later, the Illinois system would be held up as a model for other states.

Rich Hein / Sun-Times

But the state’s system remains deeply flawed, allowing some of Chicago’s top hospitals — including the one that wouldn’t treat Lenise — to close their emergency rooms to ambulances for thousands of hours each year, a Milwaukee Journal Sentinel investigation has found.

That’s in violation of what regulators deem “reasonable.”

Last year, Northwestern Memorial Hospital was closed to most ambulances for nearly an entire day 66 times. In one five-day period, Northwestern Memorial was on bypass for all but two hours.

Advocate Christ Medical Center in Oak Lawn has turned away ambulances nearly one of every five days since 2016.

The University of Chicago Medical Center has routinely been closed to ambulances roughly 20% of every month since at least mid-2007. During one period in February, it was on “ambulance bypass” for almost 30 hours straight.

The most common time for hospitals to go on diversion wasn’t weekends. It was early in the week — when experts say many beds are set aside for lucrative elective surgeries.

The law says state regulators “shall investigate” every time a hospital goes on bypass. But that isn’t happening, and officials admit oversight has been lax.

In the past five years, they have sent warning letters to hospitals just once. They haven’t levied a fine since the law took effect, the Journal Sentinel found.

And possible fines — set by lawmakers — top out at $10,000.

For perspective, Northwestern Memorial Healthcare’s 2018 revenues topped $5 billion.

Ambulance diversion — called bypass in Chicago — is a tactic hospitals nationwide use when emergency rooms get too crowded. The idea is that patients will get care more quickly somewhere else. But emergency rooms on diversion must, under federal law, continue to accept walk-in patients — that’s typically how 75% of patients arrive.

Rick Wood / Milwaukee Journal Sentinel

Studies have shown the problem typically isn’t caused by the ER but stems from issues elsewhere in a hospital — the flow of patients admitted and discharged.

In 2006, a study by the nonprofit Institute of Medicine — which provides advice on health and medical issues to Congress and the government — concluded diversions can result in “catastrophic delays” in care and called for an end to the practice.

Milwaukee and Seattle no longer allow ambulance diversion except in severe cases. Massachusetts banned it 10 years ago — the only state to do so — and researchers found waiting times in ERs did not skyrocket, as many feared.

There are high-volume Chicago hospitals that almost never close their doors to ambulances, the Journal Sentinel found.

“Diversion is horrible for patients,” said retired Dr. Alan Woodward, one of the architects of the Massachusetts ban. “You create all kinds of complexities that make no sense to avoid doing what you should be doing: taking care of patients.”

Yet diversions continue in Chicago.

In August, Mount Sinai Hospital on the West Side closed its ER to ambulances for several hours amid a rash of shootings. The same thing happened in the summer of 2018.

When government oversight lags, victims often turn to the courts. But with ambulance diversions, they almost always find a dead end.

A Journal Sentinel investigation earlier this year revealed that Tiffany Tate, a 37-year-old mother of two, had a stroke next door to the best stroke center in the Milwaukee area but was turned away and, two hospitals later, died. Her family asked several lawyers to take their case. They were told it could never succeed.

What blocked her family’s shot at a lawsuit?

The case of baby Lenise Nelson.

After Lenise’s death, her family sued. A judge ruled against them. They appealed, and a federal appeals court found the University of Chicago Medical Center had broken federal law.

But hospitals and other groups lobbied the court to take the unusual step of reconsidering the case.

Weeks later, the three-judge panel reversed its decision. For decades, that about-face has shielded hospitals that turn away ambulances, even if the delay of care caused injury or death.

Daniel Maglione was three years out of law school when he took the Lenise Nelson case.

“You call an ambulance, and you hope they do the right thing,” Maglione said. “It just sounds outrageous when you think about it: If you can walk to the hospital, you would be accepted. But if you are coming by ambulance, they could, for whatever reason, say, ‘We are on bypass,’ and turn you away.

“You just felt like the system failed them.”

Baby’s death captured city’s attention

On Feb. 10, 1990, seven days after Lenise’s death, details of the case appeared in the Chicago Sun-Times with a picture of Johnson holding a framed photo of Lenise.

“I wanted a little girl, and, when I finally got one, I lost her,” the mother said then. “I just don’t want this to happen to any other parent. If my baby had gotten to a pediatric intensive-care unit immediately, she might have survived.”

Maglione saw the photo in the newspaper and felt bad for the family. Then, he got a call from a former client who knew Lenise’s family and asked if Maglione could help.

Soon, he was sitting in a quiet living room, talking with the parents, both in their 20s. Johnson lived with her grandparents. She couldn’t afford her own place.

She and her fiancé, Michael Nelson, couldn’t grasp how a top hospital like the University of Chicago would turn away their baby — or any sick child.

“She wasn’t, like, ‘I want to get even,’ ” Maglione said. “They were upset because we have so many great hospitals in this city you should be able to go to them, especially when you are in an ambulance.

“You should be able to go to the hospital that can give you or your child the best treatment.”

More news coverage of Lenise’s death followed.

The Rev. Jesse Jackson’s Operation PUSH called for inquiries, questioning whether the decision to turn Lenise away was because of race or her family’s ability to pay, both of which would violate federal law.

Maglione said, “It turned out to be because they were in an ambulance.”

Ambulance diversion emerged in the 1980s as a drastic, stopgap measure. Hospitals increasingly were overcrowded, a situation fueled by fewer beds, more patients and longtime inefficiencies — from admissions practices to room-cleaning to the scheduling of elective surgeries.

By the late 1990s, the practice had become commonplace, studies have found.

No federal agency tracks diversion. So it’s unclear how widespread it is or how often a patient dies. The Journal Sentinel identified 20 deaths nationwide since Lenise’s.

Two-thirds of the nation’s largest 25 cities allow diversion or similar practices, including nine of the top 10, a Journal Sentinel review earlier this year found.

In the wake of Lenise’s death, the Illinois Department of Public Health opened an investigation, and aldermen and state lawmakers demanded answers.

At a City Hall hearing, University of Chicago Dr. Lawrence Gartner revealed that the hospital had been turning away children in ambulances for seven days around the time of Lenise’s call. He defended the hospital’s actions, saying all of its pediatric ICU beds were full that night.

The testimony incensed officials.

“Get that man out of here,” Ald. Sheneather Butler shouted at one point, according to news accounts.

The state investigation determined the hospital was wrong to have turned away Lenise Nelson. It found that the hospital had admitted another child in critical condition three hours before denying care to Lenise.

State lawmakers pushed to beef up the law, giving regulators the framework for oversight and latitude to issue fines. State Rep. William Shaw, D-Chicago, who pushed for changes, said the bypass system made no sense.

“Any person who comes to a hospital must be attended to,” Shaw said at a legislative hearing. “Bypass nothing. … If I [denied care], I’d be in jail.”

Lenise’s father said he had no idea the hospital would have treated his daughter had he taken her there himself.

”I would have been running there,” Michael Nelson said at the hearing. “To say ‘we’re full, and we can’t accept your baby’ is not right. It’s like saying, ‘Let her die.’ ”

It took five years for Illinois to change the law, which was beefed up again after the July 1995 heat wave in Chicago that killed 739 people. During that crisis, 18 hospitals in Cook County were on bypass, forcing paramedics to take patients outside the county, delaying care.

Today, Illinois law says hospitals must report bypasses — they are entered in real time into a computer system — and the state “shall” investigate why hospitals turn away ambulances to ensure the closure was reasonable.

The system also now requires the state to release that data under its open records law. That was a significant change. Few states followed suit. Hospitals typically work hard to keep such information hidden, the Journal Sentinel found in an examination of dozens of states and cities around the country.

In short, the new law in Illinois was the fix everyone was asking for.

But the oversight has failed to deliver.

Persistent closures

When the Illinois Department of Public Health sent warning letters to four hospitals in the Chicago area in March 2018 about how often they were closed to ambulances, it might have looked like a crackdown.

But the Journal Sentinel analysis found there were plenty of times regulators could have acted but did not.

Three of the hospitals that were warned — Northwestern Memorial, Advocate Christ and the University of Chicago — had been closed for periods similar to the ones cited in the letters. Not once or twice but dozens of times in previous years — yet the state did nothing.

The law doesn’t specify how many hours are too many.

The state used three different benchmarks for the three hospitals — ranging from 16% to 58%.

And enforcement was uneven. A fourth hospital, with a better record, got the same kind of warning as the three longtime offending hospitals.

Kevin Crowe / USA Today Network-Wisconsin

Kevin Crowe / USA Today Network-Wisconsin

Kevin Crowe / USA Today Network-Wisconsin

How could hospital diversions go on for so long without drawing fire from regulators? State officials admitted they weren’t even watching. Prior to 2018, ambulance “bypass had not been as closely monitored,” a state spokeswoman said in an email to the Journal Sentinel. Even now, the state reviews hospitals’ bypass hours only four times a year, the spokeswoman said.

Here’s what regulators missed:

• The University of Chicago Medical Center, which treats adults, was cited by the state in early 2018 for turning away ambulances 16% of the time. But the hospital also had reached that level nearly every month in the previous two years.

• Advocate Christ was warned for being on bypass for 20% of the time. Yet in 11 of the previous 24 months, it had diverted ambulances at that same rate — or even higher.

• By the time it got its warning in March 2018, Northwestern’s emergency room already had been closed that year to most ambulances for 431 hours — the equivalent of 18 days. It was also closed to ambulances a similar amount of time during two months the year before. Northwestern was on bypass more than 20% of every month between November 2016 and September 2018.

Leslee Stein-Spencer, acting chief of the state Emergency Medical Services Division, would not answer questions about the Journal Sentinel’s data analysis and the department’s earlier failure to act.

In an earlier interview, in March, before the analysis was done, Stein-Spencer said only that the letters were sent shortly after she took the position in January 2018 and, “We just saw that those hospitals seemed to have more hours on bypass than the rest of the state, and that is what we were looking into.”

In response to the letters, all three hospitals told state officials they work hard to keep their emergency rooms open to ambulances and outlined plans to ease overcrowding that included quickly moving less ill patients out of the ER, calling in extra staff and speeding admissions and discharges.

“It is our last resort, but I will tell you as often as we go on bypass, it is with the utmost thought that it is the quality of the care that we deliver in the [emergency] department and the quality of care that we want the patients bypassing us to get if they go to a different hospital,” Nancy Burke, director of emergency services at Advocate Christ, said in an interview.

Rick Wood / Milwaukee Journal Sentinel

Northwestern told regulators it was in the midst of expanding its ER from 56 to 78 beds, which would not be done until December 2018, and vowed to improve in the meantime.

But things didn’t change much. The state came back at Northwestern in May 2018, saying its bypass level “remains unacceptable.”

From May to October 2018, Northwestern turned away ambulances for 1,699 hours, the Journal Sentinel found — the equivalent of nearly 71 days straight.

In October, the state again warned Northwestern, saying the hospital not only “consistently goes on bypass most frequently [than other hospitals], it does so by a striking margin” — nearly three-to-one. The state opened “an official investigation.”

After that, Northwestern’s bypass hours trailed off. But they have begun to climb again. The hospital was on diversion 13% of the time this July and 10% in August. The state said it again contacted Northwestern regarding high bypass hours last month.

Northwestern said in a written statement it was turning away ambulances more often in response to an increase in the number of patients and that it continues to receive and treat seriously ill patients even in times of diversion.

“Our hospital is continuously exploring ways to improve and expand capacity and decrease time on diversion,” the statement said.

Northwestern said its diversions were “rare” and for “brief periods of time” — though the data analysis shows otherwise. The hospital’s statement touted the fact that patients aren’t turned away if they come to the ER on their own, even if they don’t have the ability to pay. Hospitals are required to do both by federal law.

Milwaukee Journal Sentinel

The University of Chicago and Advocate Christ had similar exchanges with the state over several months, though bypass hours remained high.

In September, the state sent a warning letter to Advocate Christ, saying its hours on ambulance diversion remained high. Officials had visited the hospital in July and noted efforts to improve operations. Despite that, Advocate Christ’s hours went up, not down.

“The department expects to see a progressive improvement in the coming months, which may entail another IDPH visit or further action,” the Sept. 3 letter said.

Advocate officials said they often are overwhelmed by the number of patients drawn to their specialty centers, such as for cardiovascular care. They said their ER sees more than 100,000 patients a year and that diverting ambulances is a “last resort.”

The University of Chicago said in a written statement it has taken steps to cut bypass hours. In September, though, the hospital was on ambulance bypass for 325 hours — nearly half of the entire month.

Among the four hospitals that received warning letters from the state last year, Franciscan Health Olympia Fields was cited for going on bypass more than 20% in January and February 2018. Outside of those two months, Olympia Fields rarely turned away ambulances from 2008 through 2017, the analysis found.

If the other three hospitals had faced the same kind of scrutiny applied to Olympia Fields, the state would have begun its enforcement actions against them a decade earlier.

Between July 2007 and December 2017, there were 88 months during which at least one of the three hospitals was on bypass for 20% of the time.

No bypasses at most hospitals

Most hospitals in Illinois do not turn away ambulances. The Journal Sentinel found that 160 of the roughly 200 hospitals in Illinois haven’t diverted ambulances at all since 2018 or did so less than 1% of the time.

That includes Stroger Hospital, the busiest trauma center in the city and one of the busiest in the nation. It has gone on diversion only four times — for a total of 4.6 hours — in 12 years.

Owned and operated by Cook County, Stroger saw nearly 122,000 ER patients last year. A Stroger spokeswoman declined to discuss specifics regarding how the hospital remains open, saying: “It is simply our mission and our philosophy.”

Stein-Spencer — the state’s top oversight official on the matter, a position she also held when Lenise died in 1990 — doesn’t support ending bypass in Illinois, as Massachusetts did a decade ago.

“I think it is safer for a patient to be transported to a further hospital,” Stein-Spencer said. “If we can give a hospital a couple of hours to catch up and move patients around, I think, in the long run, it is better for the patient.”

But study after study undercuts that view, finding diversion doesn’t solve overcrowding and can jeopardize safety.

A 2017 study found African American patients had an increased chance of dying from heart attacks because hospitals in largely minority neighborhoods were going on diversion more often than others.

A more recent study showed African Americans are more likely than other racial groups to be transported by ambulance, meaning they are more at risk of facing delays in care.

Under Illinois’ system, it is up to hospitals to decide when to close their emergency rooms to ambulances. While the state has guidelines, hospitals can interpret them differently. Regulators get involved only if they later review the data.

When emergency rooms are closed, the cases do not go away. They spill over to other hospitals, which can jam their ERs.

The Chicago Fire Department handles about 350,000 calls a year, transporting patients to 33 hospitals in the city and nearby communities. The hospitals include seven trauma centers and three pediatric trauma centers, along with several cardiac and stroke specialty hospitals.

As she sat in her office one day, Mary Sheridan, assistant deputy fire commissioner, pulled out a cellphone to check which hospitals were on diversion. Three had closed over the course of an hour — nearly 10% of hospitals. In a system where diversion is common, that didn’t raise an alarm.

“We are in pretty good shape,” Sheridan said. “But when they start closing, they start falling like dominoes.”

Depending on the hospital, ambulances carrying trauma, stroke and heart attack victims will still be allowed to come.

Also, under state guidelines, if it will take more than five minutes to get to the same kind of care, paramedics — with the approval of medical authorities on dispatch — can break the hospital’s diversion.

“Our policy is: If the medical benefits outweigh the risk, that is what is critical,” said Stein-Spencer. “If a patient has a life-threatening injury or illness or has a compromised airway, they go to the closest [hospital] whether or not on bypass.”

The department declined to release data that would show whether this is happening.

The fire department said it sometimes has to take immediate action on its own.

“We’ll start screaming, and things come back up,” said Larry Langford, spokesman for the department. “We make a few calls, and magically it happens, and they are able to open back up.”

A Chicago paramedic said that, if enough hospitals go on bypass, ambulance drivers can ignore the order, but they have to be careful. Chicago’s EMS procedures say such overrides should happen only “under unusual circumstances.”

“I could potentially be disciplined by the EMS system,” the paramedic said. “And if the EMS system disciplines me, that may make me take leave from the city because I need that license to work.”

The paramedic spoke on the condition that his name not be used because he wasn’t authorized by the department to speak.

Sheridan, the fire department official, said she believes hospitals close themselves to ambulances due to economics, as administrators try to match limited staffing with the flow of patients.

“I don’t believe that they are doing it deliberately as a way of doing business,” she said. “They are just trying to stay in business.”

But the analysis reveals a predictability to when hospitals close to ambulances. It found the biggest day of the week for bypass is Tuesday — when many elective surgeries are scheduled and those patients take in-patient beds.

Elective surgeries are coveted by hospitals because they mean more money. A 2008 study of 1 million Medicare cases found that hospitals made $700 more on elective admissions than ER patients.

With so much at stake, patients in the back of an ambulance might not know they were turned away from a hospital, said Maglione, the lawyer who represented the family in the death of Lenise.

Michael Sears / Milwaukee Journal Sentinel

“You or a loved one could have gotten better care at another hospital. How do you know that? In the case I represented, it got out,” Maglione said. “But there are people out there who might not even know it and are not getting the level of care they needed or maybe even died because they didn’t go to the right hospital.”

Most sick patients have no idea their ride to the ER could involve bouncing from place to place, said Raquel Gabriel-Bennewitz, owner of Chicago Health Advocates, which helps patients navigate the system.

“Those are not moments to hesitate. That is atrocious,” said Gabriel-Bennewitz, a nurse since 1974. “You really are gambling with someone’s life, right? The punchline is that could be you, that could be me.

“That could happen to any of us.”

Little recourse for families

Months after Lenise Nelson died, her family filed suit in state court, asking for $20 million, claiming negligence under state law and a violation of a then-new federal law that says any patient brought to a hospital must be treated.

The case was moved to federal court, where an emergency medicine doctor enlisted by the family issued a report that found Lenise’s chance of survival was reduced because of the diversion.

On appeal, a three-judge panel found the decision to turn away Lenise violated the 1986 federal law requiring hospitals to treat all patients. The hospital “had a duty” to care for the infant, the court held.

The ruling sent shockwaves through Chicago and beyond.

Hospitals and lobbying groups asked the entire Seventh Circuit — all 14 judges — to take up the case. In a typical year, fewer than five cases of the court’s typical docket of more than 600 get a hearing before the full appellate court.

Eight parties backed the University of Chicago’s request for the court to review the ruling, including Northwestern Memorial, the Illinois Hospital Association and even the state Department of Public Health. The documents filed in favor of reconsideration are no longer available.

Six weeks later, without explanation, the three-judge panel reversed itself, while acknowledging that ambulance diversion could be used to discriminate against poor people: “A hospital could conceivably use a [911] system in a scheme to dump patients [but] a persuasive argument to this effect is not before us in this case.”

With the case sent back to the trial court, the family settled for $125,000. After paying lawyers and other fees, the parents each received $23,000. Denise Johnson’s two sons got $10,000 apiece.

Mother died at 34

For Maglione, the case became a passion during the years the litigation ground on.

Denise Johnson landed in the hospital several times during that period. Stress made her lupus worse. Her relationship with Nelson dissolved.

“It was tearing them apart, as you can imagine,” Maglione said. “Being that young and having all this happen to you and losing a child in that manner.”

Besides his legal work, Maglione was helping Johnson find a place to live, buying the family food and cutting through red tape to get them public assistance. He also was trying to protect the family from “parasites” who thought there was money to be had.

Maglione remembers that last time he saw Johnson. His secretary told him she was there to see him — unusual because traveling across town took a toll. Johnson handed him a $10 bill. Maglione didn’t understand.

“She said, ‘This is for you. Buy yourself lunch. You have helped me so much.’

“I thought, ‘I can’t take this $10 from this poor girl who went through so much.’ But she insisted. So that was her way of thanking me because she felt like she was so needy, and she wanted to say, ‘Let me do something for you.’ I think that shows the kind of person she was.”

Denise Johnson’s health declined in the years after her baby’s death. She was 34 when she died in August 2001, little more than a decade after she lost her child.

Lenise is buried at Washington Memorial Cemetery in Homewood. It’s next to a cemetery where many indigent people are buried.

The babies are in front of the cemetery.

Lenise’s plot is hard to find. There is no headstone.

Rick Wood / Milwaukee Journal Sentinel

Contributing: Injustice Watch, a nonpartisan, not-for-profit journalism organization in Chicago.