A Plaintiffs View of EMTALA

Posted by Aaron J. Freiwald and Glenn A. Ellis on April 12, 2016

Thirty years ago, President Ronald Reagan signed into law expanded protections for those seeking emergency medical treatment with limited means to afford medical treatment. That federal statute, the Emergency Medical Treatment and Labor Act of 1986 (EMTALA), is now gaining acceptance as a means to add a potent federal claim to state law-based medical malpractice claims.

EMTALA is limited to medical treatment in a hospital emergency department but it imposes directly on hospitals two very important obligations: first, to provide a medical screening exam to anyone, regardless of ability to pay, who comes to the ER with an emergent medical condition; and two, to stabilize any patient with an emergent medical condition before discharge or transfer to another facility.

Sometimes referred to as the “anti-dumping” law, EMTALA must be considered by any trial attorney considering a medical negligence case involving treatment in a hospital emergency department.

Origins of EMTALA

Prior to the passage of EMTALA, a patient who needed emergency medical treatment faced being turned away or “dumped” from a hospital. Hospitals might treat a patient with limited means to pay or they might transfer that patient to another hospital. Or that patient might simply be told to leave.

“I would see patients transferred with knives still in their backs or women giving birth at the door of the hospital, simply because they were uninsured,” recalled Ron Anderson, the former president and CEO of Parkland Memorial Health and Hospital System in Dallas.

In the mid-1980s, Parkland Hospital started keeping records of transfers from other hospitals and found that a staggering number of patients arrived in a dangerously destabilized condition. Often Parkland wasn’t even notified about the transfer by the receiving hospital. In 1985, an exposé ran on “60 Minutes,” followed by an anti-dumping law passing in Texas. The passage of EMTALA came the following year.

Clearly, the impetus for EMTALA was to make sure that underinsured and uninsured patients seeking emergency medical care would, at a bare minimum, be screened and stabilized. However, the language of the statute makes no reference to a patient’s ability to pay in defining when EMTALA’s protections apply. In other words, EMTALA’s protections apply to all patients.

What EMTALA Provides

EMTALA imposes its requirements on all hospitals that accept Medicare and that operate an emergency department, which means virtually all hospitals, 42 U.S.C. 1395dd et seq. An emergency department means that the hospital holds itself out to the public as providing emergency or urgent care without the need for an appointment. Note that this may also include hospital-based ambulatory care centers.

At its core, EMTALA imposes twin affirmative duties on hospitals, namely, to provide a medical screening exam and to stabilize patients presenting with emergency medical conditions.

What then is an “emergency medical condition”? What is a “medical screening exam”? And what does it mean to “stabilize” the patient before discharge or transfer?

EMTALA clearly defines an emergency medical condition as follows: a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in:

• placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,

• serious impairment to bodily functions, or

• serious dysfunction of any bodily organ or part; or

• with respect to a pregnant woman who is having contractions

• that there is inadequate time to effect a safe transfer to another hospital before delivery, or

• that transfer may pose a threat to the health or safety of the woman or the unborn child.

Clearly, EMTALA’s threshold condition, that there be an emergency medical condition, would apply to many situations a trial lawyer handling catastrophic injury cases is likely to encounter when considering potential cases involving emergency medical care. Cases involving patients who present to the ER with signs or symptoms of stroke or sepsis, for example, would be examples of cases where EMTALA could apply.

If a patient does present to a hospital ER with an emergency medical condition, then a hospital must perform a medical screening exam. EMTALA is clear that the screening exam must be “appropriate.”

Although the statute does not specifically define what is “appropriate,” it is clear that triage is not sufficient and that the screening exam should be based on the patient’s symptoms and be performed by a qualified and trained physician.

Generally, courts have interpreted the screening requirement provision to mean that “patients are entitled under EMTALA … to be treated as other similarly situated patients are treated within the hospital’s capabilities.” (See Byrne v. Cleveland Clinic, 519 F. App’x 739,742 (3d Cir. 2013) (quoting Summers v. Baptist Medical Center Arkadelphia, 91 F. 3d 1132, 1137 (8th Cir. 1996)).

The hospital itself is usually left to define for itself what is within its capabilities, as in Summers, 91 F. 3d at 1138, “It is up to the hospital itself to determine what its screening procedures will be. Having done so, it must apply them alike to all patients.”

In the U.S. Court of Appeals for the Third Circuit, courts have found that hospitals must provide some evidence of the screening procedures. It is not enough for the hospital to say that policies defining appropriate medical screening procedures exist or that the ER doctor performed his usual and standard examination. The hospital must demonstrate that the policies indeed do exist and they must be produced during discovery.

As Judge Stewart Dalzell of the Eastern District of Pennsylvania pointed out recently in denying summary judgment to a hospital seeking to dismiss an EMTALA claim, the burden of establishing medical screening procedures and policies is on the hospital. As Judge Richard Posner put it so pungently, “judges are not like pigs, hunting for truffles buried in briefs,” as held in Delibertis v. Pottstown Hospital (unpublished memorandum, Jan. 21, 2016) (citing United States v. Dunkel, 927 F. 2d 955, 956 (7th Cir. 1991)).

Once an appropriate medical screening exam has been done and once it has been determined that a patient indeed has an emergency medical condition, then EMTALA requires the hospital to render appropriate treatment to stabilize the patient before discharge.

EMTALA also allows for an appropriate transfer to another medical facility but requires that the transfer must be appropriate; meaning that the patient is stabilized before transfer and that there is effective communication and coordination between the transferring and the receiving hospital.

EMTALA Claims in Medical Negligence Cases

What should the trial lawyer consider in whether to bring an EMTALA claim?

First, it should be determined whether a viable EMTALA claim exists and then, second, it would be determined whether it makes sense to bring that claim.

Clearly, EMTALA does not apply to situations where the patient presents with a minor complaint, one that is not potentially life threatening. Then again, these are cases that are probably not worthwhile for other reasons as well.

If a patient presents to the ER with a potentially life-threatening condition, such as a stroke or cardiac tamponade or some other very serious medical condition, and the patient later suffers harm, then each of EMTALA’s requirements should be considered as independent claims.

In a recent EMTALA case we handled, for example, a young woman was seen multiple times in a hospital ER for severe headache pain. At the last ER visit, she was seen very quickly and, it was alleged, a cursory neurological exam was performed. She was discharged and later suffered multiple strokes and died. In addition to other state-law medical negligence claims, we brought an EMTALA claim against the hospital for failure to perform a medical screening exam and failure to stabilize the patient before discharge.

Courts have made clear that EMTALA is not a federal malpractice action. This is clear from the fact that EMTALA has a limited preemption provision.

Defense counsel may try to dismiss an EMTALA claim, arguing that the plaintiff may not federalize state-law medical negligence claims. But the statute makes clear that EMTALA is intended to supplement, not to supplant state law in this area.

If a hospital has violated any of EMTALA’s requirements, a plaintiff may recover up to $50,000 (or up to $25,000 against a hospital with fewer than 100 beds).

Although the amount of the recovery may be modest compared to the range of civil damages available under state law for medical malpractice, having EMTALA claims may complement state-law medical negligence claims. A claim based on the hospital’s failure to have an appropriate medical screening exam performed, for example, brings the hospital directly in the story of how the patient was worked up and treated in the emergency department without getting into questions of indirect liability for the conduct of the physician or nurse.

Because EMTALA is a federal statute, the trial lawyer should give due consideration to the forum implications of bringing such a claim. There may be times. When the plaintiff prefers to be in federal court and times where the plaintiff prefers not to be; these concerns require weighing the pros and cons.

Conclusion

Although EMTALA has been around for 30 years, it is still fairly little known among both plaintiffs’ and defendants’ trial lawyers. With clear statutory duties that virtually all hospitals must follow, it makes sense to consider EMTALA in any potential medical malpractice case involving emergency medical care.

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Aaron J. Freiwald Glenn A. Ellis

Attorney Comment:

Glenn and Aaron wrote this piece for the Legal Intelligencer to run opposite the Defense perspective of EMTALA.

Reprinted with permission from the “April 4, 2016” edition of the “Legal Intelligencer”© “2016” ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.