EMTALA: What Every Healthcare Negligence Lawyer Should Know

Editor/Publisher Legal Eagle Eye Newsletter for the Nursing Profession www.nursinglaw.com

Hospital emergency rooms, for better or for worse, now mete out a significant portion of our country’s basic healthcare. Healthcare negligence lawyers should familiarize themselves with the Emergency Medical Treatment and Active Labor Act. The basic language of the EMTALA has been around almost twenty years. Still, to this day Federal and state courts are finding new avenues of interpretation for novel as well as familiar fact patterns. Some major questions of interpretation were resolved by Federal regulations in 2003; a legal researcher unfamiliar with how the law has evolved risks being misled by earlier case law which is now obsolete.

The EMTALA[1] was enacted in 1986 in response to public outcries over “patient dumping” by private, for-profit hospitals, that is, the practice of hospitals shepherding indigent and/or uninsured emergency and ob/gyn patients to public receiving hospitals by refusing outright to see them in their emergency departments or by seeing them and then sending them off in medically unstable condition.

Oddly, since the US Supreme Court’s 1999 ruling in Roberts v. Galen of Virginia[2] the weight of authority around the country is that the EMTALA no longer concerns itself with the original problem of “patient dumping.” Even earlier, each of the Federal Circuits[3] which had ruled on the issue, except the Sixth Circuit[4] whose ruling was reviewed by the Supreme Court in 1999, had already said that every hospital emergency-room patient, regardless of insurance coverage, ability to pay privately, Medicare or Medicaid eligibility, etc., was entitled to all the protections of the EMTALA, assuming the hospital in question had an emergency department and had elected to participate in Medicare.

Strictly speaking, now only in the Sixth Circuit must a hospital patient still prove a discriminatory financial motive by hospital personnel, and only to sue for violation of the EMTALA’s medical screening requirement. Every emergency-room patient, even in the Sixth Circuit, can sue for violation of the EMTALA’s other requirements, if the facts so warrant, without proof of a discriminatory financial motivation.[5]

If any individual comes to the emergency department and a request is made on the individual’s behalf for examination or treatment, the hospital must provide for an appropriate medical screening examination within the capability of the hospital’s emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition exists.[6]

To decide whether a medical screening examination is appropriate, the courts pay heed to another familiar mantra, that the EMTALA is not a Federal medical malpractice statute for hospital emergency rooms. The test for appropriateness of a medical screening examination focuses not on the prevailing national or local standard of care, but instead on how the particular patient’s screening examination compared to the hospital’s own internal protocols and/or practices for patients with the same presenting signs and symptoms.[7] The courts’ thinking on this point is a conspicuous vestige of the EMTALA’s original aim of attacking the problem of disparate, as opposed to substandard emergency-room care.

If the hospital determines that the individual has an emergency medical condition, the hospital must provide either, within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition, or for transfer of the individual to another medical facility.[8]

An appropriate transfer to another facility happens, according to the complicated language of the Act, basically only when a physician certifies in writing that the individual requires care the hospital cannot offer and will get that care at another facility that is able to meet the patient’s medical needs.[9]

The EMTALA permits a civil lawsuit against a hospital and a physician if a violation causes harm to a patient, in Federal or state court, with no pre-emption of state common law or statutory remedies for malpractice. The statute of limitations is two years.[10]

The political battle currently raging over who defines the standard of care for medical treatment, the medical profession versus the legal system, is reflected in microcosm in new EMTALA cases involving first-line care for heart attack sufferers and premature infants.

A patient with chest pains has always been a common occurrence in hospital emergency rooms. Notwithstanding expert medical opinions on the standard of care, EMTALA case law is moving toward dictating that each and every emergency room patient with chest pains is entitled to a full course of hospital services.[11] That course starts with immediate emergency nursing triage, history and vital signs, and goes through the steps of prompt EKG administration and interpretation by a trained nurse or emergency physician, prompt medical attention from the emergency room physician and then if necessary prompt attention from a cardiac specialist, prompt use of thrombolytic clot-busting medications, and, if necessary, same-day cardiac catheterization.[12]

A recent EMTALA case from the Supreme Court of Wisconsin [13] could expand liability considerations in the already highly liability-stressed field of labor and delivery medicine. Although the plaintiff parents’ allegations of medical negligence and lack of informed consent were dismissed as unproven, the parents, in the Wisconsin court’s judgment, still had the right to sue the hospital for violation of the EMTALA.

The pregnant mother was admitted to the hospital’s birthing center at twenty-three weeks because she had been losing amniotic fluid. Ten hours later she gave birth to a son who weighed only 700 grams. Aside from assigning a nominal Apgar score[14] of 1, the hospital’s medical and nursing personnel made no effort to evaluate the newborn or to prolong the newborn’s life, and he expired two and one half hours after birth.

Under the Wisconsin court’s interpretation of the EMTALA, a baby’s birth with emergent medical needs in a hospital’s birthing center activates the EMTALA. The newborn baby is a fresh emergency case entitled to an appropriate medical screening examination as defined by the EMTALA and necessary stabilizing medical treatment within the hospital’s existing capabilities. The mother does not necessarily have to come to the emergency department in active labor, nor does the baby have to be brought in from home or taken from the birthing center to the emergency room, for the EMTALA to apply, at least according to the Supreme Court of Wisconsin.

When reading EMTALA case law perhaps only a few years old, lawyers need to be mindful that regulators at the US Department of Health and Human Services (DHHS) have been carefully watching the case law unfold[15] and have been diligently rewriting the regulations accordingly. That is, some major legal questions about the EMTALA which were still arguable not that long ago are now moot and the corresponding case law is obsolete, having been subsumed under current definitive regulatory pronouncements.

EMTALA regulations[16] promulgated by the DHHS in September, 2003, state that the EMTALA does not apply to persons after they admitted to the hospital in good faith as inpatients for further treatment after appropriate medical screening in the emergency department. That was DHHS’s response to a line of cases saying that EMTALA rights attached to emergency room patients and stayed with them for their entire course of inpatient treatment after admission to the hospital. For example, the complaint filed in the Western District of Kentucky in the Roberts v. Galen of Virginia[17] case, supra, alleged that the hospital prematurely transferred the patient to a sub-acute skilled nursing facility following a lengthy hospital stay, the patient having entered the hospital in the first place as a motor-vehicle accident case from the emergency department. In that case[18] the US Supreme Court, as stated earlier, ruled proof of the hospital’s financial motive was immaterial to the patient’s right to sue over the hospital’s duty to provide necessary stabilizing treatment – necessary stabilizing treatment post-admission to the hospital as an inpatient – a archaic EMTALA right which, paradoxically, now no longer exists under current DHHS regulations.

The Wisconsin court in the Preston v. Meriter Hospital[19] case, supra, begged off from holding the DHHS regulations, which cut off EMTALA rights to hospital inpatients after admission, void as contrary to the EMTALA statute. The court said the regulations are ambiguous as to a newborn’s legal status. The court would not permit the DHHS regulations to trump the court’s very patient-centered view that upon being born with an emergency medical condition a newborn is a fresh hospital emergency case with fresh legal rights under the EMTALA.

Closer to the mainstream is language in a very recent Northern District of California case[20] saying that inpatient status is not interrupted, and the patient does not become a fresh emergency case with fresh EMTALA rights, when a confused patient elopes against medical advice, is found in a ditch behind the hospital and is returned to the hospital by hospital staff who found her there, for treatment for the injuries from falling in the ditch as well as further inpatient treatment for the medical issues with which she had presented in the emergency room. The Northern District of California did point to older Ninth Circuit case law[21], rather than the EMTALA regulations, for the view that inpatient admission to the hospital cuts off EMTALA applicability for the patient’s post-admission care.

The 2003 DHHS regulations also moot earlier case law that was going off in all directions about what happens when a person requesting care comes in to the hospital’s admitting office or walks up to the front-lobby information desk or goes right up to a hospital ward, instead of going to the designated emergency-room entrance.[22] The EMTALA now applies to anyone who arrives and requests care anywhere on the property of a hospital’s main campus, including the parking lot, sidewalks, etc., but the EMTALA does not apply to someone who appears in a physician’s office at the hospital or the hospital cafeteria or the hospital’s sub-acute skilled nursing floor.[23]

The 2003 regulations also deal with questions about satellite outpatient clinics associated with a medical center corporation which clearly has a denominated emergency department at a downtown hospital campus. If, and only if the satellite clinics hold themselves out though signage or advertising as offering emergency services, or actually see one-third of their cases as urgent-care cases for which no appointment is necessary, the satellites are hospital emergency departments, not outpatient physician’s offices, and their patients are covered by the EMTALA.[24] Keep in mind, nevertheless, the basic EMTALA language circumscribing the provider’s duties to staff and facilities available on site.[25]

A lawyer evaluating a case has to nail the facts down meticulously, and then read the DHHS regulations carefully, before deciding the client or opposing party does or does not have an EMTALA case. Common-law malpractice is an entirely separate question which may still carry the day for the plaintiff if the EMTALA will not.

The EMTALA keeps growing as Congress, regulators in Washington and state and federal courts face new challenges. It will continue to be a major factor in how healthcare is meted out in our hospitals and justice is meted out in our courts.

[1] 42 USC § 1395dd

[2] Roberts v. Galen of Virginia, Inc., 525 U.S. 249, 119 S. Ct. 685, 141 L. Ed. 2d 156 (U.S., 1999).

[3] See Summers v. Baptist Med. Center Arkadelphia, 91 F. 3d 1132 (8^th Cir., 1996); Correa v. Hospital San Francisco, 69 F. 3d 1184 (1^st Cir., 1995); Power v. Abingdon Hospital Assn., 42 F. 3d 851 (4^th Cir., 1994); Gatewood v. Washington Healthcare Corp., 933 F. 2d 1037 (D.C. Cir., 1991).

[4] Roberts v. Galen of Virginia, Inc., 111 F.3d 405 (6^th Cir., 1997).

[5] Broughton v. St. John Health System, 246 F.Supp.2d 764 (E.D.Mich., 2003). See also Stringfellow v. Oakwood Hosp. and Medical Center, 2005 WL 3434802 (E.D. Mich., 2005).

[6] 42 USC § 1395dd (a)

[7] See, e.g., Correa v. Hospital San Francisco, 69 F. 3d 1184 (1^st Cir., 1995), footnote 3 supra,; Repp v. Andarko Munic. Hospital, 45 F. 3d 519 (10^th Cir., 1994).

[8] 42 USC § 1395dd (b)

[9] 42 USC § 1395dd (c)

[10] 42 USC § 1395dd (d)(2)(C)

[11] See, e.g., Marrero v. Hospital Hermanos Melendez, Inc., 253 F.Supp.2d 179 (D.Puerto Rico, 2003)

[12] Hillcrest Baptist Medical Center v. Wade, __ S.W. 3d __, 2005 WL 1837004 (Tex. App., 2005).

[13] Preston v. Meriter Hosp., Inc., 700 N.W.2d 158 (Wis.,2005).

[14] “System of scoring infant’s physical condition one minute after birth. The heart rate, respiration, muscle tone, response to stimuli and color are each rated 0, 1 or 2. The maximum total score is 10.” Taber’s Cyclopedic Medical Dictionary, 16^th Ed. (Philadelphia: F.A. Davis Company, 1989).

[15] HCFA Office of Inspector General Special Advisory Bulletin, Federal Register, November 10, 1999; HCFA Office of Inspector General Special Advisory Bulletin, Federal Register, December 7, 1998.

[16] Federal Register, Vol. 68, No. 164, Pages 53222 – 53264 (September 9, 2003); 42 CFR § 489.24 (a)(ii)

[17] Roberts v. Galen of Virginia, Inc., 112 F.Supp.2d 638 (W.D.Ky., 2000).

[18] 525 U.S. 249, supra.

[19] 700 N.W.2d 158, supra.

[20] Cavender v. Sutter Lakeside Hosp., 2005 WL 2171714 (N.D. Cal., 2005).

[21] Bryant v. Adventist Health System/West, 289 F. 3d 1162 (9^th Cir., 2002).

[22] See, e.g., Rios vs. Baptist Memorial Hospital System, 935 S.W. 2d 799 (Tex. App., 1996).

[23] 42 CFR § 489.24 (b)

[24] 42 CFR § 489.24 (b)

[25] 42 USC § 1395dd (a), (b)