The Anatomy of the Emergency Medical Treatment and Labor Act
Millions of uninsured people in the United States have the right to receive emergency medical care thanks to the Emergency Medical Treatment and Labor Act (EMTALA). Signed into law by President Reagan in 1986 and still in force today, EMTALA provided the first limited federal right to health care regardless of ability to pay. In this survey of EMTALA, we dissect the “golden rule of the emergency room” and introduce the major statutory and regulatory mandates, as well as case law interpretations thereof. In that vein, we also cover hot-button issues and present some of the top compliance challenges for hospitals.
Jason Potter: Welcome to the anatomy of the Emergency Medical Treatment and Labor Act by Quimbee. My name is Jason Potter. I'm a staff presenter at Quimbee. This presentation includes a number of course materials, including today's slides, complete with detailed presenter notes. You can follow along with those slides or just simply sit back and enjoy this introduction to EMTALA. Suture self.
In the hit television comedy Scrubs, the main protagonist JD, an emergency room physician, describes his process for treating an uninsured patient, Maggie. He says, "When a patient doesn't have insurance, you have to work around the system. You can't let any higher ups find out that the patient is uninsured." If this scene actually reflected reality, JD would have no need to find a backdoor channel for treating his patient, or to hide Maggie's insurance status. Maggie would be guaranteed an emergency room screening, and if she had an emergency medical condition, she would be guaranteed basic treatment under EMTALA.
What the health is EMTALA? EMTALA stands for the Emergency Medical Treatment And Labor Act. Signed into law in 1986 by President Reagan and still enforced today, EMTALA provided the first limited right to healthcare, regardless of ability to pay. It is hard to overstate the law's significance. In this introduction to the golden rule of the emergency room, we'll place EMTALA in cultural and historical context. In this introduction to the golden rule of the emergency room, we'll place EMTALA in cultural and historical context. And we'll also walk you through EMTALA's mandates. During this presentation, we'll cover a lot of ground. We'll touch on the statute, regulations, agency guidance, and case law. All right, let's get on it, stat.
This is Maria. Maria lives in Los Angeles, California. She is between jobs currently, and doesn't have insurance. Recently, Maria got really sick with a runny nose, a sore throat, a cough, and a high fever. She was afraid to visit the emergency room at the local hospital because she didn't know how she could pay for the bill. Maria believed that her lack of insurance and inability to pay would affect the quality of her care there. However, if Maria walked into the ER in most US hospitals, she would have the right under EMTALA to receive the same basic level of care given to all other patients, regardless of her ability to pay.
EMTALA was codified in 1986 to, in part, address the widespread practice of withholding care from indigent people in hospital ERs. The act was contained the consolidated Omnibus Budget Reconciliation Act. Basically, the act forbids hospitals to avoid screening an indigent individual, or to transfer them to avoid tending to their medical condition because of the patient's inability to pay. EMTALA is referred to as the anti dumping statute.
Dumping is the hospital practice of diverting patients who lack insurance, or cannot pay for their claims through refusing treatment or referring them to other hospitals. In one seminal 1987 study on the subject, dumping was defined as the denial of or limitation in the provision of medical services to a patient for economic reasons, and the referral of that patient elsewhere. As we will explain more fully in this presentation, EMTALA doesn't apply to all hospitals. Only certain ones that take Medicare funds and offer emergency services. But that's about 98% of US hospitals. Emergency rooms of these hospitals must provide a medical screening when a person comes to the ER and makes a request for examination. If the ER staff finds an emergency medical condition, we call it an EMC, they must stabilize the patient to the extent that it's capable of doing so. If a hospital is unable to stabilize a patient within its capability, or if the patient requests, staff must set up an appropriate transfer. Also, if a hospital has specialized capability or facilities like burn units, they must accept patient transfers who need those services if they're able to do so. EMTALA is a hot topic in the healthcare industry for a number of reasons.
First, the rate of uninsured in the US is still high. According to the most recent US census data available, 8.5% of people in the United States, or 27.5 million, did not have health in insurance in 2018. Second, violations of EMTALA are still commonplace. Between 2018 and 2019, there were 16 violations that the centers for Medicare and Medicaid services, or CMS, detected, and that led to civil monetary penalties. According to one 2018 study, nearly 1700 hospitals, that's one third of US hospitals, had documented violations of EMTALA from 2008 to 2018.
New regulations in 2019 show that the federal government seems to be stepping up enforcement, and the consequences for hospitals have gotten more severe. In 2019, CMS entered into a $180,000 settlement agreement with a Georgia hospital over an allegation of patient dumping.
Third, due to recent public health emergencies, there is a great deal of discussion about costs and benefits of EMTALA. In 2020 hospital emergency rooms have been overwhelmed by flu patients, and of important equipment such as surgical masks have run critically low at some hospitals, hospitals continue to prepare for widespread outbreaks of novel diseases. The issue of lack of preparedness resulting from the existing flu outbreak raises the question of whether individuals with novel infections who lack insurance could be legally turned away. This is because the duties of a hospital under EMTALA to screen and stabilize all patients with emergency medical conditions depend on the hospitals capability of providing care.
ER utilization has increased for those suffering from opioid dependency. One 2019 article in the Annals of Emergency Medicine, reviewing utilizations for four Indiana emergency rooms by individuals suffering from repeat opioid related emergencies jumped to 34.1% in 2017, from 8.8% in 2012. Nearly a quadruple increase.
On January 8th, 2020, in response to the public health emergency resulting from earthquakes in Puerto Rico, the secretary of health and human services waived liability for sanctions that could result from a hospital's violation of their screening, stabilization, and transfer duties under EMTALA if their non-compliance resulted from the consequences of earthquakes.
So EMTALA remains controversial today. As a result of EMTALA, emergency departments have become the nation's healthcare safety net. Questions continue to swirl in the healthcare industry and beyond. These questions include, but are not limited to, who bears or should bear the cost of the care guaranteed by EMTALA, who or what is EMTALA helping and/or hurting, why do EMTALA violations keep occurring, and what if anything can be done? Do EMTALA violations result from racial and/or ethnic discrimination, or are they resulting from actual or perceived inability to pay, or both? Although these are important questions, they have been ruled out for today's presentation. Though it simply bears noting that fierce debates about these issues and others are currently being waged.
So let's dissect what we'll be covering today. First we'll discuss the legal background of access to healthcare in the United States, including early state and federal efforts to guarantee access prior to EMTALA. And we'll ease you into some foundational concepts. Second, we'll examine the anatomy of EMTALA's mandates through a hypothetical case. Third, we'll survey some of the more nuance compliance issues that hospitals face, as well as some hot topics.
Prior to EMTALA's passage in 1986, the general rule was that medical providers may provide care as the provider sees fit, and that the provider can refuse treatment to a patient in emergency situations. However, beginning in the 1970s and 1980s, state legislatures made a requirement that licensed hospitals guarantee access to emergency care to all people who present for care. Texas, California, Maryland, and New York adopted very broad laws. New York created criminal liability. State courts upheld these laws, though not all states had these laws. However, these statutes proved ineffective. California and New York statutes are examples of ineffective statutes. Both statutes required that hospitals offer emergency services to individuals unable to pay. Neither statute defined medical emergency, however. This made the statutes difficult to interpret in state courts.
A few state laws provided legal remedies, but they were typically in the form of fines. Although largely ineffective, state legislative efforts were a first attempt, and so a foundation to mandate access to care for individuals in need. State courts tried to impose a duty of care upon hospitals to treat those who came to the hospital seeking emergency treatment. For example, in Thompson versus Sun City Community Hospital, which we've included in your course materials, the Supreme Court of Arizona found, as a matter of public policy, that licensed hospitals were required to accept and render emergency care to all patients who presented themselves in need. And that the patient was not to be transferred until all medically indicated emergency care was completed.
This standard of care required private hospitals to provide emergency care that was medically indicated without consideration of the economic circumstances. In that case, the court found that the patient was for financial reasons while emergency care was medically indicated. As a matter of law, this was a breach of the hospital's duty. The court further held that a transfer based on the forbidden criterion of economic considerations may be for the convenience of the hospital, but it is hardly medically indicated.
Some states also look to their good Samaritan laws to address the issue of patient dumping. These laws provide doctors with immunity from liability for negligence, resulting from giving care in emergencies. The passage and expansion of these laws didn't have an appreciable effect on the issue. At the federal level, prior to EMTALA there were some protections for indigent patients. The Hospital Survey and Construction Act of 1946, commonly called the Hill-Burton Act, established federal guidelines for emergency medical care at certain hospitals. That act and its regulations mandated that hospitals that had ever had a community service assurance, in exchange for Hill-Burton funds must make a percentage of those services available to those residing in this service area who could not pay. Also, regulations implementing the act state that care must be provided without discrimination on the ground of race, color, national origin, creed, or any other ground unrelated to the individual's need for the service, or the availability of the needed service in the facility.
The act did not define emergency, and contained no carrot for participating hospitals. Also, as with state access laws, the federal judiciary had difficulty interpreting the law due to its vagueness. The act also did not capture high hospitals that didn't receive Hill-Burton funds. A number of legal scholars addressing the effectiveness of the Hill-Burton act have concluded that its impact on access to care for those in need is minimal, due to the act's weak enforcement framework and weak enforcement by the US Department of Health and Human Services. Legal advocates attempted to use judicial review of the Hill-Burton act to establish a right to basic healthcare access. These efforts culminated in the 1978 case of Newsom versus Vanderbilt University, which is a Tennessee federal district court case. In that case, the federal district court held that the indigent individuals had a constitutional right to necessary and cost free care under Hill-Burton. The decision was reversed three years later.
In addition to federal and state efforts to ensure access to emergency care for indigent individuals, professional medical and healthcare associations demonstrated support for mandated access. The joint commission on accreditation of hospitals issued guidelines declaring that individuals shall be accorded impartial access to treatment or accommodations that are available or medically indicated, regardless of race, creed, sex, nationality, or source of payment for care. However, these guarantees lacked the force of law. The failure of federal, state, and private initiatives to adequately address the issue of patient dumping began to build capacity in Congress to pass a new law.
This political momentum was supported by major academic research. A pair of academic articles in 1986 and 1987 by physicians from Cook County Hospital in Chicago, Illinois documented patient dumping that occurred at that hospital. Most patients that were victims of dumping were minorities, and unemployed. In 87% of these cases, the proffered reason for the action was the patient's lack of insurance. And only 6% of these patients had given informed consent to the transfer. About 24% of patients were believed to have been unstable when transferred. In these articles, authors concluded that dumping was done mostly due to inability to pay, and led to delays in care and negative health outcomes.
Enter EMTALA, code blue. Legislative history of EMTALA indicates that legislators were focused on ensuring that hospitals desire for increased efficiency and cost savings did not overwhelm the provision of emergency care. In one house committee report, the committee stated that it is most concerned that medically unstable patients are not being treated appropriately. "The committee wants to provide a strong assurance that pressures for greater hospital efficiency are not to be construed as license to ignore traditional community responsibilities and loosen in historic standards." The act breezed through both chambers of Congress, and was signed by President Reagan on April 7th, 1986.EMTALA appears in section 1867 of the Social Security Act, and is codified at title 42 United States code, section 1395dd, and 1395cc.
All right, let's take a brief introductory look at the statute. EMTALA requires participating hospitals, including psychiatric hospitals, to provide an appropriate medical screening examination within the capability of the emergency department, and to stabilize any patient presenting to the emergency department with an emergency medical condition. Now, as a preliminary matter, let's break down some of this basic terminology.
First, the act only applies to participating hospitals. EMTALA defines a participating hospital as a hospital that has entered into a provider agreement under section 1395cc of this title. That's a convoluted way of saying that a participating hospital is one that participates in Medicare. Second, participating hospitals must provide a medical screening examination to people who present to the ER and seek medical care. What's a medical screening examination? It's undefined. However, the agency charged with enforcing EMTALA, CMS, does provide guidance in its state operations manual, which was recently updated in June of 2019.
In essence, CMS defines medical screening examination as the process of reaching reasonable clinical confidence so assessing the presence of an emergency medical condition is possible. Third, EMTALA defines emergency medical condition, or EMC, 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 resolve in placing the patient's health in serious jeopardy. Serious impairment to their bodily functions, or serious dysfunction of any bodily organ or part. In essence, an EMC is a pretty gnarly medical problem.
EMTALA permits any individual directly harm from the hospital's actions to bring a private cause of action. Courts have interpreted this cause of action as one that's federal in nature. Each federal circuit court of appeal has distinct interpretations of the EMTALA text. And there's only one Supreme Court case interpreting EMTALA, which we will introduce a bit later.
The right to bring an EMTALA action terminates after two years from the date the violation occurred. Courts have found that EMTALA does not create a federal cause of action for medical mal practice. There are important differences between an EMTALA claim and a state medical malpractice claim. First, EMTALA claims require actual knowledge by the hospital of the presence of an emergency medical condition. If an emergency medical condition goes undetected, the claim is a medical malpractice claim, not an EMTALA claim. If a hospital fails to detect the emergency medical condition in the screening, then the duty to stabilize never kicks in, even if the hospital could have detected it.
Second, hospital motive is not relevant for an EMTALA claim. EMTALA is decisively a strict liability statute.
Third, it doesn't matter if the provider misdiagnosed an emergency medical condition for an EMTALA claim. Misdiagnosis is a medical malpractice issue and not EMTALA claim.
Finally, EMTALA duties end after admission. If an issue occurred afterwards, it's not an EMTALA claim.
For medical malpractice, if the emergency medical condition goes undetected, that could be a medical malpractice claim.
For medical malpractice, the hospital's motive is relevant, and misdiagnosis would be material in a medical malpractice claim.
The issue may occur after admission and still be a medical malpractice claim, unlike an EMTALA claim.
The body of law regarding EMTALA encompasses statutes, regulations, agency guidance, and federal case law interpretations. The ramifications of the statute have broadened significantly over the years, as a result of these rules. We've included the regulations implementing EMTALA in your course materials.
With this background, we'll now explore the anatomy of EMTALA by returning to our friend, Maria. Maria's situation will help us explore EMTALA's basic duties in the context of EMTALA's civil cause of action. We'll analyze whether the hospital owed Maria any duties under EMTALA, and then we'll look at whether the hospital breached any of those duties, thus violating the statute. Of course, Maria's case would take place in the federal courts within the ninth circuit, but to make sure our screening is adequate, we'll touch on the law of other circuits as well.
As you know, Maria recently fell ill, but here's the rest of her story. Motivated by seeing a news report about an outbreak of swine flu in Los Angeles, Maria went to the ER at Los Angeles Central Hospital, or LACH, a hospital that receives Medicare funds. On intake, Maria described her symptoms. Running nose, sore throat, cough, fatigue, high fever, and thirst. She also mentioned the intake nurse that she wondered if she had diabetes. The nurse wrote all this down.
After a short time, Maria was seen by a physician. The physician used differential diagnosis with Maria, the hospital's normal screening procedure for suspected cases of H1N1 during the local outbreak. In his notes, the doctor wrote H1N1, common cold, and sinusitis. Ruling out the others, the doctor diagnosed Maria with H1N1. Maria, given a dose of Tamiflu and was released from the ER after the physician determined that she was a mild case. On the bus ride home, Maria suffered a stroke. Upon admission to LACH, doctors confirmed that Maria had H1N1 through testing, but found that her infection had been exacerbated by undiagnosed diabetes.
Maria wants to sue LACH for the harm caused by the ER physician's failure to properly care for her during her original visit. Maria has asked you to represent her. You set out to determine Maria's likelihood of success on an EMTALA claim against LACH.
In determining Maria's likelihood of success on an EMTALA claim against LACH, you'll first need to assess whether LACH owed Maria any of the duties under EMTALA. If you determine that LACH did owe her any duties, you'll then need to assess whether LACH breached any of those duties. So the first question for you as Maria's attorney is whether LACH owed Maria any duties under EMTALA when she presented to the LACH emergency room.
Let's take a closer look at these duties in the statute. Under EMTALA, there are two limited duties that emergency rooms of participating hospitals owe patients. A duty to screen, and a duty to stabilize before release or transfer. But these duties don't apply to all hospitals, and hospitals don't owe them to everyone.
First, a hospital has a duty to appropriately screen an individual for an emergency medical condition, EMC, if the individual presents to an emergency department of a participating hospital, and makes a request for treatment.
Second, the hospital has a duty to stabilize an individual before release or transfer or admission if the screening indicated that the person had an EMC. So according to this section of the statute, if hospital staff didn't identify an emergency medical condition in the screening, then the duty to stabilize arises. A hospital that breaches either duty is liable to any individual, which is undefined in the act, so long as that individual is directly harmed by the hospital's actions.
Now, let's apply these basic concepts to Maria's case and see if the hospital owed her any duties. First, Maria presented to the ER of LACH, which participates in Medicare. So LACH is a participating hospital under EMTALA. Also, Maria requested medical treatment for her condition. So, LACH likely owed Maria a limited duty under EMTALA to screen her for the presence of an emergency medical condition. Second, because LACH's screening determined Maria has an EMC, it's H1N1, LACH likely owed Maria a limited duty to stabilize that condition.
Further, Maria is an individual and was directly harmed as a direct result of the hospital's actions. And so, the hospital would likely be liable to Maria for monetary damages if the hospital breached either or both of these limited duties, however, both of these duties are limited in two important ways.
First, both duties are limited by the capabilities of the hospital. At the time the patient presents for care. If the hospital doesn't have the capability to either screen or stabilize, then it's less likely that a court would find that the hospital violated EMTALA. Second, both the duty to screen and stabilize are limited because as we discussed earlier, EMTALA is distinct from medical malpractice. The act does not prescribe a national standard of care, so neither duty would be breached because a hospital misdiagnosed, failed to diagnose, or the hospital failed to meet its own standard of care.
So the question in Maria's case becomes, did LACH breach either the duty to screen or the duty to stabilize Maria? To determine this, we'll dive further into the screening and stabilization.
First, did LACH breach the duty to screen? EMTALA requires a physician or other qualified medical personnel member determined by the hospital bylaws and regulations to perform a medical screening examination within the capability of the participating hospital's emergency department, including any ancillary services routinely available to the emergency department to assess if a person has an emergency medical condition. Examinations don't need to be conducted by physicians. They just need to be qualified members of the staff by hospital bylaws or rules and regulations, and who meet the requirements of 42 CFR section 482.55. Courts have affirmed that hospitals may tailor the screenings to patient symptoms and don't need to provide screenings beyond the hospital's capabilities.
As we mentioned before, EMTALA never defines by statute or regulation the term medical screening examination. But the interpretive guidelines give a lot of guidance about medical screening examinations. We've included a link to this manual in the course materials. That guidance helps flesh out the meaning of the term. First, the guidance specifies that triage is equivalent to a medical screening examination. Triage merely determines the order in which individuals will be seen, not the presence or absence of an emergency medical condition.
Next, the guidance specifies that a medical screening exam is the process required to reach with reasonable clinical confidence. The point at which it can be determined whether a medical emergency does or doesn't exist. If a hospital applies in a non-discriminatory manner, a screening process that is reason calculated to determine whether an emergency medical condition exists, it has met its obligations under EMTALA.
Last, the guidance specifies that if the medical screening exam is appropriate and does not reveal an emergency medical condition, the hospital has no further obligations. In addition to regulatory guidance, case law also provides significant help in determining whether a medical screening exam was sufficient. Cases indicate that there are two ways to prove that a hospital breached screening duty. First, by showing there was no screening, and second, by showing that the screening procedure was desperately applied.
First, if a hospital fails to screen a patient all together, courts have found that this violates the screening duty. In this vein, a hospital's duty to screen is also breached if the screening is so cursory that it is not designed to identify acute and severe symptoms that alert the physician of the need for immediate medical attention to prevent serious bodily injury.
Second, a hospital's duty to screen is breached if it does not provide a medical screening comparable to the ones offered to other patients presenting similar symptoms. Even handedness is the hallmark of a legally sufficient medical screening exam for the purpose of EMTALA. We're going to look at each of these a little closer. First, the no screening duty, the first way to prove a screening violation is to show show that there was effectively no screening at all. When a screening is so egregious and lacking in justification that the screening amounted to an effective denial of a screening exam all together, the hospital's actions would violate EMTALA's screening duty.
In the case of Correa versus Hospital San Francisco, the first circuit found that the hospital failed to provide appropriate screening to the patient and merely assigned her a number after the patient notified staff of her chest pain. The court stated that, "When a hospital completely ignores manifest emergency symptoms, despite placing the patient in the hospital's chain of care, the screening is cursory and tantamount to no screening." On the other hand, when the hospital conducts a screening that is designed to do detect emergency conditions, it is not cursory screening even if the hospital could have ordered certain testing.
In Hoffman versus Tonnemacher, the patient came to the ER and the doctor diagnosed him with bronchitis and pneumonia, and discharged him. The patient returned 17 hours later in septic shock because the bacteria infection he had went undiagnosed. In this case, the cursory screening argument didn't survive summary judgment. The court found that hospital staff's ordering of x-rays and urinalysis screenings were designed to identify symptoms that would indicate the need for immediate medical treatment. The court further found that a failure to order additional tests does not amount to a cursory screening.
These are to two cases that show that if there's no screening at all, or the screening is so outrageously lacking that it's tantamount to no screening, that courts may find screening violations. This of course depends on your circuit's case law, so be sure to check before you make such an argument.
Next, the disparate screening theory. In addition to a no screening theory, a plaintiff may also be able to make a disparate screening argument, depending on cases in your jurisdiction. To succeed on a disparate screening argument, the plaintiff bears the burden to show that he or she was treated differently than other individuals with the patient's symptoms. Evidence that the hospital knew of the patient's lack of insurance and that the patient appeared unable to pay might support this.
For example, in Bohannon versus Durham County Hospital, the plaintiff informed the physician's assistant that he was uninsured. The plaintiff's chart contained the notation that he was toothless and disheveled. The federal district court found that this sufficiently raised a claim under EMTALA, that it was not uniform procedure for the hospital to review x-rays after a patient had been discharged. Also, the court found that the patient had received the disparate treatment because he was uninsured. The appearance of indigence and knowledge of lack of insurance proved disparate treatment in this case. Let's look at how the no screening and disparate screening arguments might fare in Maria's case.
To review, upon intake at LACH, Maria described flu-like symptoms as well as thirst. She mentioned diabetes to the intake nurse, which the nurse noted. When Maria was examined, the physician used differential diagnosis to diagnose her with H1N1. Maria was actually suffering from two conditions, H1N1 and diabetes.
First, regarding diabetes. The hospital totally failed to screen Maria for diabetes, and it appears that the hospital was put on notice about the potential that she was suffering from undiagnosed diabetes. Second, regarding H1N1, it appears that the hospital followed its own procedure in screening Maria for H1N1 using differential diagnosis. Now whether that is a sufficient medical screening exam may be an issue for further investigation. Even assuming that the H1N1 exam was a sufficient exam, there is no evidence that the hospital treated Maria any differently than similarly situated patients with suspected H1N1 infections. Maria wouldn't succeed in arguing that the doctor was negligent in using the H1N1 screening protocol of differential diagnosis when a laboratory test for H1N1 was available. That's medical malpractice.
In sum, Maria may have an EMTALA claim for the hospital's failure to screen for diabetes, but she probably cannot successfully argue that the hospital's screening for H1N1 violated its screening duty.
So, we've been taking a look at violations of the screening duty. Now, we'll move to violations of the stabilization duty. Did LACH breach the duty to stabilize. Under EMTALA, the term stabilize means to provide such medical treatment of the condition as may be necessary to assure with reasonable medical probability that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility, the statute, CMS interpretive guidance, and case law, fill out how this duty applies to certain special populations. In the case of women and labor, the patient is only stabilized when the patient has delivered the child and the placenta. The only way to discharge a woman in labor before delivery, as distinguished from appropriately transferring her, is to have physician certify that the woman is in false labor.
For those patients in critical condition, a patient can be critical and still be considered stabilized under EMTALA if no material deterioration of the condition is likely within reasonable probability to result from the transfer. Psychiatric patients are considered stabilized when they are protected and prevented from injuring or harming themselves or others.
The duty to stabilize doesn't always kick in. A hospital has a duty to stabilize own those emergency medical conditions that its staff detects. In other words, the duty to stabilize arises only when the hospital has knowledge of the patient's emergency condition. On the other hand, a general awareness of the patient's abnormal symptoms does not necessarily constitute specific knowledge of an emergency condition. One court found that a patient's passing comment about feeling impending doom was not enough to alert the physician to an emergency medical condition.
Furthermore, there is some support in case law for the argument that constructive knowledge of an emergency medical condition is enough to prove a violation of EMTALA's stabilization duty. Two cases are particularly instructive on the stabilization issue.
In Jackson, the plaintiff was misdiagnosed with a psychiatric condition despite presenting physical symptoms of drug toxicity, including irregular vital signs. The court rejected the plaintiff's claim of inadequate stabilization because the hospital was unaware of his emergency condition. The mere presence of abnormal symptoms did not in of itself establish actual knowledge. Conversely, in Gutierrez, the plaintiff was discharged from the emergency department despite several diagnostic laboratory tests indicating the presence of a life threatening condition. The court held that the plaintiff's allegations, if true, would prove the hospital's failure to stabilize. The strangeness of her diagnostic test results would have demonstrated the hospital's knowledge of her emergency condition at the time of discharge. In order to prove a violation of the duty to stabilize, a finding of improper motive on the hospital's part is not required.
In the only US Supreme Court Case interpreting EMTALA, Roberts versus Galen of Virginia, the court found that there is no motive requirement in EMTALA's stabilization provision. We've included this case in your course materials. In that case, the patient was severely injured when she was struck by a truck while crossing the street. She was brought to the defendant's hospital, and stayed there for several weeks. The defendant hospital made the decision to transfer the petitioner to a permanent care facility, and during the transfer, the petitioner's condition deteriorated considerably. A guardian brought suit on the petitioner's behalf, claiming that the defendant was negligent in failing to stabilize the petitioner before moving her. Summary judgment was granted to the defendant, and the appellate court affirmed that the plaintiff was statutorily required to demonstrate that the defendant acted with improper motive in failing to stabilize the petitioner.
In a per curiam decision, the court reversed the grant of summary judgment in the defendant's favor, and remanded it for further proceedings. The court reasoned that unlike the screening requirement, there is no measure of appropriateness when evaluating the duty to stabilize, and it therefore does not require the plaintiff to show improper motive. In addition to underscoring the irrelevance of motive. This opinion is also useful in as much as the court articulated a distinction between the screening and stabilization duties. The measure of appropriateness, whether the screening was appropriate per the is inherently subjective. Whereas the stabilization duty, which lacks a measure of appropriateness, is more objective.
Let's take a look at how some of these rules might play out in Maria's case. As a reminder, after the examination, Maria is diagnosed with H1N1 and given Tamiflu. She was later released when staff determined she had a mild case, but she also mentioned she might have diabetes to the nurse during triage. So it's not likely that the hospital breached its duty to stabilize Maria's H1N1. The physician determined that she had an emergency medical condition, which triggered the duty to stabilize. In turn, the physician treated Maria with medication and thereafter determined that her case was a mild one. Once she was released, LACH's duty to stabilize Maria ended. The accuracy of the physician's diagnosis cannot be the basis for a stabilization claim, because EMTALA does not establish a national standard of care. However, Maria may have a claim that LACH violated their duty to stabilize her diabetes. If Maria could make a successful showing that the hospital knew of her diabetes, the evidence may support a stabilization claim.
As Maria specifically mentioned diabetes to the intake nurse, who wrote it down, it seems likely that she would be able to prove that the hospital knew of her condition. The intake nurse was more than aware of her diabetes symptoms, which she also mentioned. Maria specifically flagged the proper diagnosis, and that proper diagnosis was duly noted. So Maria may very well have a claim under EMTALA, though you'd want to check the law in your circuit. This concludes our examination of EMTALA's screening and stabilization duties, but we've got more, so stick with us. Doctor's orders.
There are a number of other important aspects to EMTALA. These include the rules around transfer, whistleblowers, and enforcement. What about patient transfers? This is the dumping issue that precipitated EMTALA, right? Right you are. EMTALA requires that a participating hospital that has specialized capabilities or facilities, like burn units, shock trauma units, neonatal intensive care units, or with respect to rural areas, regional referral centers, as identified by the secretary in the regulations, shall not refuse to accept an appropriate transfer of an individual who requires specialized capabilities or hospitals if the hospital has the capacity to treat the individual.
In short, a hospital with specialized capabilities or facilities has a duty to accept transfers for patients who need those services if it's within the hospital's capacity to take them. Also, if a hospital can't stabilize a patient within its capability, or if the patient requests, hospitals must set up an appropriate transfer. Transfer is permitted when the medical benefits of the transfer outweigh its medical risks and other requirements in the regulations are met, and the unstable individual makes an informed written request for transfer after being informed of the hospital's EMTALA obligations and the risk of transfer.
Per the federal regulations, tasks for physicians heading up a transfer include, but aren't limited to, informing an individual of the risks and the hospital's obligations after a patient requests a transfer, determining that the benefits of the patient transfer to another facility outweigh the risks signing a certification attest to this, obtaining a second signature providing treatment to minimize the risks of transfer, sending all pertinent records to the receiving hospital, and getting the consent of the receiving hospital to accept the transfer.
What about protecting hospital staff who saw potential violations? Well, EMTALA contains a whistleblower provision that states in relevant part, a participating hospital may not penalize or take adverse action against any hospital employee because the employee reports a violation of a requirement of this section.
There is one recent case interpreting the whistleblower provision. Gillespie versus Regional Care Hospital Partners. Gillespie is essentially about the meaning of the term report. In this case, a nurse working for a medical center claimed that the medical center terminated her in retaliation for her reporting of EMTALA violation. The nurses EMTALA claim turned on the emergency department's decision to discharge a pregnant patient who presented with discomfort, pain, and bleeding, but told her to go to another hospital to see a gynecologist. The medical center conducted an investigation and found there was a possible violation, but decided not to report it. She told the medical center that reporting was mandatory, and the medical center later fired her as the result of her involvement in a different investigation.
The third circuit affirmed that Gillespie did not make a report, and thus there was no EMTALA violation. The third circuit's decision was based on its finding that even if Gillespie urged the medical center to self-report the EMTALA violation, she did not inform or notify the medical center's management of anything regarding the patient's discharge that was not already known. The court held that EMTALA's whistleblower provision protects employees who inform personnel in a covered facility of a possible EMTALA violation, even though the employee does not also inform any governmental or regulatory agency. The case is helpful to show how third circuit courts will interpret EMTALA's whistleblower provision. The court clarified that a report under this EMTALA provision need not be made to a governmental entity. To the contrary, the court held that employees who inform personnel of a hospital of a possible EMTALA violation are covered by the provision.
Besides private causes of action, how is EMTALA enforced? Congress created a bifurcated enforcement mechanism for EMTALA. Within the department of health and human services, CMS authorized investigations of dumping complaints issued by state survey agencies. CMS also determines if a violation occurred, and if appropriate, terminates the hospital's provider agreement. Also, the office of inspector general assesses civil monetary penalties against hospitals and physicians, and may exclude physicians from the Medicare program for repeated or gross and flagrant behavior.
There are a number of hot button issues to be aware of in EMTALA land. Now, we're not covering all of them by any means. The issues we cover are of some of the issues in EMTALA that are currently trending. The first issue we're highlighting are on call requirements. Under EMTALA's regulations, a hospital must keep an on-call list that dovetails with the needs of the patients receiving care under EMTALA, and accords with their own capacity, including the availability of on-call physicians. Physicians who are called to come into the ER must come in, or risk violating EMTALA. Response and arrival time are to be set by the hospital administration, but generally it should be no more than 30 minutes.
The second trending issue that we're forwarding you is EMTALA and ambulances. Dumping may also happen with ambulances. Hospitals may be inclined to divert arriving ambulances to other facilities, particularly when the patient requires care that the hospital may not be able to provide. However, improper diversions may result in EMTALA violations. Remember, an individual must come to the emergency department in order to trigger EMTALA's duties. But what about a person who is not a patient being transported by ambulance to a hospital? Does EMTALA apply to that person prior to arrival? Maybe. EMTALA regulations specify that comes to the emergency department applies to non-patients who are in a hospital owned and operated ambulance even before arrival.
The opposite is true for a non-hospital owned ambulance. In the case of a non-hospital owned ambulance, the person has come to the emergency room upon the ambulance's arrival. In the case of non-hospital owned ambulances, the hospital can direct the ambulance elsewhere if it's on diversionary status, meaning the hospital doesn't have the capability of accepting any emergency patients. However, if the ambulance ignores this directive and arrives anyway, the individual has come to the emergency department, and the hospital must provide stabilized treatment or appropriate transfer to comply with EMTALA.
A third trending issue to be aware of are damage caps. A recurring debate with respect to federal causes of action under EMTALA is whether state caps on the amount of malpractice awards should limit damages under EMTALA. The EMTALA statute incorporates state law. The statute states that any individual who suffers personal harm as a direct result of a participating hospital's violation may in a civil action against the participating hospital, obtain those damages available for personal injury under the law of the state in which the hospital is located. There is some disagreement among the courts about whether this extends to state laws that cap the amount of damages in medical malpractice cases.
Among the various circuits, there are three basic arguments on this issue. Some courts find that since the federal EMTALA standard incorporates general personal injury principles, not those specifically applicable to medical malpractice, EMTALA plaintiffs may recover all damages that they're permitted to recover under state law. Other courts find that because federal law requires reliance on state law damage principles, and malpractice damages are most closely analogous to those sought under EMTALA actions. Then as a matter of federal law state malpractice damage caps limit EMTALA recovery. Finally, still other courts find that whether state malpractice caps limit into recovery depends upon whether a state law has applied such caps narrowly or broadly.
And the last trending issue we're covering today is the issue of religious hospitals. To what extent are religious hospitals exempt from EMTALA? The answer is they're not. There are no religious exemptions in EMTALA. If a religious hospital is a participating hospital under EMTALA, it owes the same duties to screen and stabilize patients that any other participating hospital does.
Nearly a quarter of US hospitals have been cited for EMTALA violations, with a statute regulations and CMS interpretive guidance to navigate, hospitals have their hands full with EMTALA compliance. We've compiled a non exhaustive list of some of the major EMTALA compliance issues that hospitals face.
Failure to post Medicare required EMTALA signs in the emergency department. Providers failing to comply with their own EMTALA policies and procedures. Failure to report suspected inappropriate transfers, dumping, to hospital administration, including dumping from affiliated hospitals in the same network. Failure to act when on-call physicians don't appear within a specific time. Failure to maintain a central log regarding emergency department admissions, transfers, and so on. Failure to provide an even handed medical screening examination. Failure provide stabilizing treatment to an individual experiencing an emergency medical condition. Delay in providing a medical screening examination, or stabilizing treatment in order to inquire about payment or insurance status. Failure to provide an appropriate transfer and improper documentation. Failure to honor whistleblower protections.
Given the numerous requirements of EMTALA, its regulations, and CMS guidance, hospitals should take great care in mapping out compliance programs. Short of instituting a formal compliance program, there are some concrete things that hospitals can do to ensure compliance. Post proper signage. Provide even handed screenings, stabilization treatment, and facilitate appropriate transfers. Train all staff. Establish and follow an on-call policy. Maintain logs on call arrivals, transfers, and so on. Report all violations. And protect whistle blowers.
As a health law attorney advising a client on EMTALA matter, sorting through and piecing together the complex web of statutes, regulations, and agency guidance is the most important foundational task. In this presentation, we introduced you to the anatomy of the emergency medical treatment and labor act. That 1986 law, signed by President Reagan, guaranteeing care without regard the ability to pay. A law so important that it's been dubbed, "The golden rule of the emergency room."
Thank you for joining us for this introduction to EMTALA by Quimbee. Don't forget to check out the accompanying course materials. I hope you'll join us again soon.