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EMTALA Distilled

It took Congress months, perhaps years, to draft and pass EMTALA, but it only takes an instant for the statute to be violated and land a hospital in the middle of a contentious Federal lawsuit.  As if practicing medicine and caring for the sick and injured weren’t hard enough, now physicians and healthcare organizations have to be legal beagles as well. 

EMERGENCY MEDICAL TREATMENT AND ACTIVE LABOR ACT

I.       THE STATUTE:  EMTALA, 42 U.S.C. 1395dd

Congress passed EMTALA as part of the Consolidated Omnibus Reconciliation Act (COBRA) of 1985 to address the problem of “patient dumping.”  The term “patient dumping” refers to the practice of hospitals failing to screen, treat, or appropriately transfer patients to another provider.

Generally, Medicare-participating hospitals must examine and screen any individual who comes to that participating hospital’s emergency room and requests examination or treatment.  Remote sites may also come under the terms of EMTALA if certain conditions are met.  If  an emergency medical condition does exist, the hospital must try to stabilize the patient or arrange an appropriate transfer.  The hospital must provide these services regardless of the patient’s ability to pay.

“To establish an EMTALA violation, a plaintiff must show that (1) the hospital is a participating hospital, covered by EMTALA, that operates an emergency department (or an equivalent treatment facility); (2) the patient arrived at the facility seeking treatment; and (3) the hospital either (a) did not afford the patient an appropriate screening in order to determine if she had an emergency medical condition, or (b) bade farewell to the patient (whether by turning her away, discharging her, or improvidently transferring her) without first stabilizing the emergency medical condition.”  Correa v. Hospital San Francisco, 69 F.3d 1184, 1190 (1^st Cir. 1995).

II.               THE “APPROPRIATE MEDICAL SCREENING EXAMINATION” UNDER EMTALA 

An “appropriate screening examination” is not determined by reference to any standard of care.  “EMTALA is not a federal malpractice statute and it does not set a national emergency health care standard; claims of misdiagnosis or inadequate treatment are left to the state malpractice arena.”  Summers v. Baptist Medial Center Arkadelphia, 91 F.3d 1132, 1137 (8^th Cir. 1996), citing Summers v. Baptist Medial Center Arkadelphia, 69 F.3d 902, 904 (8^th Cir. 1995).  

“EMTALA’s purpose was not to guarantee that all patients are properly diagnosed, or even to assure that they receive adequate care”.  Brodersen v. Sioux Valley Memorial Hospital, 902 F. Supp. 931, 941 (1995).   An appropriate screening is properly determined not by reference to particular outcomes, but by reference to the patient’s presenting condition and the hospital’s standard screening procedures.  Id. at 941.  

A hospital fulfills its statutory duty to screen patients in its emergency room if it provides for a screening examination reasonably calculated to identify critical medical conditions that may be afflicting symptomatic patients and provides that level of screening uniformly to all those who present substantially similar complaints.

Correa v. Hospital San Francisco, 69 F.3d 1184, 1192 (1^st Cir. 1995).

Sometimes a cursory examination is sufficient under the statute to satisfy the “appropriate medical screening examination” requirement.  Sunburns, scratches and bee stings need not trigger an all out diagnostic assault.  However, where a patient’s condition is sufficiently serious and the diagnosis sufficiently murky, further testing may be mandated.

HCFA notes that “(w)hat constitutes an appropriate medical screening examination will vary according to the condition and past history of the individual and the capabilities of the hospital’s emergency department. . .”  (59 Fed. Reg. at 32,099)

Although the exact scope of the rights guaranteed to patients by EMTALA is still not fully defined, it is clear that at a minimum Congress manifested an intent that all patients be treated fairly when they arrive in the emergency department of a participating hospital and that all patients who need some treatment will get a first response at minimum and will not simply be turned away.

Reynolds v. MaineGeneral Health, 218 F.3d 78, 83 (1^st Cir. 2000), citing Baber v. Hospital Corp. of America, 977 F.2d 872, 880 (4^th Cir. 1992)

EMTALA, however, “does not impose any duty on a hospital requiring that the screening result in a correct diagnosis.”  Vickers v. Nash General Hospital, 78 F.3d 139, 143 (4^th Cir. 1996), citing Brooks v. Maryland General Hospital, Inc., 996 F.2d 708, 711 (4^th Cir. 1993).  Instead, “questions related to . . . diagnosis remain the exclusive province of local negligence and malpractice law.”  Vickers v. Nash General Hospital, at 143, citing Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1039 (D.C. Cir. 1991).  Reynolds v. MaineGeneral Healthcare, 218 F.3d at 83 (“[t]he fact that the plaintiff was in the hospital receiving treatment is a prima facie showing that the purpose of subsection (a), requiring that the hospital provide an appropriate medical screening exam, was satisfied; any failures of diagnosis or treatment were then remedial under state medial malpractice law”).

Furthermore, “in enacting EMTALA, Congress was driven by a concern that hospitals were refusing to admit and treat uninsured patients.”  López-Soto v. Hawayek, 175 F.3d 170, 176 (1^st Cir. 1999).  The case of Vickers v. Nash General Hosp. Inc., 78 F.3d 139, 143 (4^th Cir. 1996), is illustrative.  In Vickers, a patient arrived a the emergency room of the Nash General Hospital after an altercation during which he fell and hit his head, suffering a laceration.  An emergency room physician examined the patient and ordered X-rays of the cervical spine, which were read as negative.  A diagnosis of lacerations and contusions was reached, and the patient was discharged after the lacerations were sutured.  The patient died four days later as the result of an undiagnosed cerebral herniation and epidural hematoma caused by a skull fracture.

In affirming the defendant Hospital’s motion to dismiss, the Fourth Circuit Court of Appeals (Ervin, J. dissenting) distinguished between the initial screening examination, which is the focus of EMTALA, and the correctness of the treatment that follows from that screening.  EMTALA only requires an initial screening examination “to determine whether or not an emergency medical condition . . . exists.”  42 U.S.C. 1395dd(a).

Whether the diagnosis was in fact accurate, or whether the patient was, in hindsight, misdiagnosed, does not implicate the requirements of EMTALA.  Allegations of faulty screening, as opposed to disparate screening, as well as allegations of misdiagnosis, are properly left to the state malpractice laws.

Collins v. DePaul Hospital, 963 F.2d 303 (10^th Cir. 1992), is also illustrative.  In Collins, the plaintiff was thrown from an all-terrain vehicle and suffered life-threatening injuries. He was brought to the hospital unconscious.  The patient was diagnosed with, among other things, a severe brain injury, for which he was admitted to the ICU.  As his condition gradually improved, the patient complained of hip pain. An X-ray was ordered and a hip fracture was diagnosed.  Plaintiff alleged that an inadequate screening, violative of EMTALA, led to the misdiagnosis.

In affirming the dismissal of the plaintiff’s EMTALA claim, the Tenth Circuit held that the defendant hospital complied with its EMTALA requirements by admitting the patient to the hospital after screening the patient and diagnosing an emergency condition.  See also Gatewood v. Washington Healthcare Corp., 933 F.2d 1037 (D.C. Cir. 1991)(no EMTALA violation where patient dies of a heart attack the day after being discharged from the emergency room); Cleland v. Brosnon Health Care Group Inc., 917 F. 2d 266 (6^th Cir. 1990)(EMTALA was not intended to ensure a correct diagnosis, but rather to ensure that each patient is accorded the same level of treatment regularly provided to other patients in similar circumstances).

III.          SUBSECTION (b) OF EMTALA; THE STABILIZATION PROVISION

The stabilization provision of EMTALA provides that if a patient comes to a hospital and is determined to have an emergency medical condition, the hospital must provide for such further medical examination and such treatment as may be required to stabilize the medical condition.[1]  42 U.S.C. 1395dd(b)(1)(A).

The stabilization provision of EMTALA on its face takes actual diagnosis as given and only obliges hospitals to stabilize conditions that they actually detect.  A stabilization claim exists when the patient had an emergency condition and the hospital knew of that condition.  EMTALA does not hold hospitals accountable for failing to stabilize conditions of which they were not aware, or even for conditions that they should have been aware of, as EMTALA would otherwise become coextensive with malpractice claims for negligent treatment.  Vickers v. Nash General Hosp. Inc., 78 F.3d 139, 145 (4^th cir. 1996)(citation omitted).   Hospitals cannot be found in violation of EMTALA’s stabilization provision for failing to stabilize an emergency situation without first knowing that an emergency exists.   Urban v. King, 43 F.3d. 523, 525 (10^th Cir. 1994).

Actual knowledge of the individual’s unstabilized emergency medical condition must be proved to succeed with a claim under EMTALA’s “treat or transfer” provisions.  Urban v. King, 43 F.3d. at 526.

In Urban, the patient, a pregnant woman, sued the hospital for violating EMTALA’s stabilization and transfer provisions.  During her twin pregnancy the patient had gone to the hospital for a stress test which was read as non-reactive, meaning that while there were fetal heart tones and the mother’s vital signs were normal, there was no fetal movement detected.  The patient was instructed to return to the hospital the next day for repeat testing.  Upon repeat testing, it was realized that something was seriously wrong with the unborn fetuses, and an emergency C-section was carried out.  One child was stillborn and the other was born with brain damage.

The Urban court held that the hospital’s decision to send the patient home after the non-reactive stress test did not violate EMTALA as the hospital was unaware of any emergency medical condition to treat.  The patient could not recover from the hospital for its failure to treat her emergency medical condition absent showing that the hospital had actual knowledge of that emergency medical condition.  “The Act does not hold hospitals accountable for failing to stabilize conditions of which they are not aware, or even conditions of which they should have been aware.” Reynolds, 218 F.3d at 85 (1^st Cir. 2000)(citations omitted).

While claims of misdiagnosis or of failure to diagnose emergency medical conditions raise questions of medical malpractice, they do not raise a federal question under EMTALA.

In Bryan v. Rectors and Visitors of The University of Virginia, 95 F.3d 349 (4^th Cir. 1996), the issue that the Court of Appeals had to decide was how long the stabilization requirements of EMTALA continue and at what point EMTALA gives way to state malpractice law.  The court ruled that the stabilization requirement “was intended to regulate the hospital’s care of the patient only in the immediate aftermath of the act of admitting (the patient) for emergency treatment and while (the hospital) considered whether it would undertake longer-term full treatment or instead transfer the patient to a hospital that could and would undertake that treatment.”  Id. at 352.

The Bryan court further added that a hospital has two choices when presented with a patient who has an emergency medical condition. The first is to stabilize the condition and transfer (or discharge) the patient.  The second is to admit the patient.  Once the hospital has elected one or the other, the requirements of EMTALA have been met.

Once EMTALA has met that purpose of ensuring that a hospital undertakes stabilizing treatment for a patient who arrives with an emergency condition, the patient's care becomes the legal responsibility of the hospital and the treating physicians. And, the legal adequacy of that care is then governed not by EMTALA but by the state malpractice law that everyone agrees EMTALA was not intended to preempt. Id. at 351.

IV.  OTHER ISSUES

1.          The Medical Malpractice Tribunal; Mass.G.L.c. 231, §60B:
Because EMTALA purports not to raise claims of medical malpractice, plaintiff counsel are likely to resist attempts to have these claims screened by the Medical Malpractice Tribunal, arguing that standard of care issues are not implicated.  However, tribunals are not limited to making findings on negligence issues alone.  The role of the tribunal is to screen all cases of “error, malpractice or mistake” against those health care providers delineated in the statute.  This broad, inclusive language allows the tribunal wide jurisdiction.

For instance, the tribunal may appropriately screen cases alleging violations of the Consumer Protection Act, M.G.L.c. 93A[2], and breach of contract.[3]  So long as the principle issue for the tribunal is in the nature of a medical question, the tribunal should appropriately exercise its jurisdiction.  The claim of an inappropriate “medical screening examination” would certainly raise the issue of a medical question appropriate for screening by the tribunal.

2.          Charitable immunity; Mass.G.L.c. 231, §85K:
No Massachusetts’ appellate court has ruled on the issue of whether the liability cap on damages provided to charitable institutions under G.L.c. 231, §85K, applies to claims brought under EMTALA.  However, this issue was addressed by the Superior Court in the case of Derry v. Saint Vincent Hospital, Docket No. WOCV1997-01720.[4]  In this case, in which plaintiff alleged a failure to properly screen, treat, and stabilize the patient prior to transfer to another facility, the court allowed the defendant hospital’s motion for partial summary judgment, ruling that charitable immunity would apply to limit any recovery under EMTALA.

In reaching its decision, the court looked to the express language of the two statutes in question.  42 U.S.C.A. §1395dd(d)(2)(A) states that the EMTALA plaintiff “may obtain those damages available for personal injury under the law of the State in which the hospital is located, and such equitable relief as is appropriate.”  Section 85K of Chapter 231 states that a charity’s liability for “any cause of action based on tort” shall not exceed twenty thousand dollars.  The issue is whether an EMTALA claim is in the nature of a tort such that Section 85K might apply.

In deciding that an EMTALA claim is in the nature of a tort, the court reasoned that both claims shared the essential elements of duty, breach of duty, and damages.  Therefore, the claims were of the same substantive quality such that the state’s charitable immunity cap on liability would apply.

3.           Peer Review:
For cases filed originally in Federal Court or removed to Federal Court, the issue applying peer review privilege based on state law will arise.  M.G.L.c. 111, §204(a) provides that “the proceedings, reports and records of a medical peer review committee shall be confidential and shall not be subject to subpoena or discovery, or introduced into evidence, in any judicial or administrative proceeding,” except proceedings before the various medical boards.  How should this State law privilege be applied in Federal Court?

Federal Rule of Evidence 501 provides that in cases combining federal and state claims federal privilege law applies.  However, case law has recognized that state law privileges may be recognized by federal courts even in non-diversity cases.

In Bredice v. Doctor’s Hospital, Inc., 50 F.R.D. 249 (N.D. Cal. 1970), plaintiff sought discovery of the minutes and reports of any staff meetings of the defendant hospital concerning the care rendered to her husband who had died.  This discovery was denied to the plaintiff in so far as she sought peer review materials because, as the district court noted, “(c)onstructive professional criticism cannot occur in the atmosphere of apprehension that one doctor’s suggestion will be used as a denunciation of a colleague’s conduct in a malpractice suit.”  Id. at 250-251.

The reasoning of Bredice was followed in a subsequent case,  Mewborn v. Heckler, 101 F.R.D. 691 (D.D.C. 1984), in which the plaintiff in a Federal Tort Claims Act case sought discovery of the reports generated from a medical peer review committee meeting.  The court denied this discovery, stating that,

Where the plaintiff is furnished with the raw factual data in a civil case, no prejudice can result to the plaintiff who can have his or her own experts assess that factual information.  On the other hand, to disclose medical opinions, evaluations or findings could be inimical to the medical interest of improving the care and treatment afforded patients in hospitals generally.

Id. at 693.

Given the importance of the peer review process to the improvement of medical care, federal courts presiding over EMTALA claims should recognize this state law privilege “in light of reason and experience.”  (See, Rule 501, Fed.R.Evid.)  Simply because a claim of medical malpractice arose in the setting of an emergency department should not be used to trump or circumvent deeply entrenched and legislatively mandated self-evaluative processes that have, as their central function, the improvement of medical care and treatment afforded to all patients in hospitals generally.

RICHARD M. HALEY, ESQ.
BLOOM & BUELL
1340 Soldiers Field Road
Boston, Massachusetts 02135
(617)254-4400
rmh@bloombuell.com

[1] An emergency medical condition is defined under the Act as 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 “(i) placing the health of the individual…in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part . . . .” 42 U.S.C. §1395dd(e)(1)(A).
[2] Little v. Rosenthal, 376 Mass. 573, 576-577, 382 N.E.2d 1037 (1978).
[3] Salem Orthopedic Surgeons, Inc. v. Quinn, 377 Mass. 514, 516-521, 386 N.E.2d 1268 (1979).
[4] The decision can be found at 2001 Mass. Super. LEXIS 18 (decided and filed January 17, 2001)

For more information regarding this alert, contact Bloom & Buell via e-mail or call (617)254-4400 or write 1340 Soldiers Field Road, Boston, MA 02135.


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