It can be difficult or impossible to convince a jury that while the ED care violated the Emergency Medical Treatment and Labor Act (EMTALA), that very same care was not negligent.
“Broadly speaking, an EMTALA violation is likely to bolster a malpractice claim,” says Timothy C. Gutwald, JD, a health care attorney in the Grand Rapids, MI, office of Miller Johnson.
The effect of an EMTALA violation on a medical malpractice claim varies by state.
“In states where medical malpractice damages are capped and courts have ruled that the cap does not apply to an EMTALA claim, the impact could be significant,” Gutwald explains.
In those states, an EMTALA claim could significantly increase the damages a plaintiff may collect. States in which damage caps apply to EMTALA claims, the increase in damages probably is minimal.
“On the other hand, an EMTALA claim may confuse a jury,” Gutwald adds. “Poor expert testimony on the issue of medical negligence may undermine an otherwise strong EMTALA claim.”
In Gutwald’s experience, plaintiff attorneys rarely succeed using alleged EMTALA violations to bolster weak malpractice cases. “In my review of the case law, courts do a good job of acknowledging that EMTALA is not a medical malpractice statute, and dismiss claims where EMTALA is being used to go after an act of negligence,” he says.
However, some plaintiff attorneys use EMTALA as leverage, because the hospital can be liable for EMTALA, even if there is not enough to prove malpractice.
Stephen A. Frew, JD, vice president of risk consulting at Johnson Insurance Services and a Rockford, IL-based attorney, explains, “The standards are entirely different in court, with EMTALA being the easier to prove.”
Frew sees three types of plaintiff lawyers using EMTALA allegations.
“The first is a lawyer who does not know a lot about the case, and throws every theory in the world against the wall to see what sticks,” he says. In a sense, the legal system encourages this approach. A lawyer who fails to bring a proper theory of liability could be found guilty of legal malpractice. “[These attorneys] sometimes allege an EMTALA count against the physician, which is invalid,” Frew notes. Federal judges often throw these cases out of court, returning the malpractice claim to state courts.
The second type of attorney directs his client to submit a complaint, and only files suit if the Centers for Medicare & Medicaid Services finds a violation.
“This puts the hospital and physician at a disadvantage in the court case,” Frew says.
The third type of attorney knows EMTALA law very well. The attorney words the complaint carefully so as to follow the regulations and statute of EMTALA against the hospital, while wording the malpractice complaint in standard medical malpractice language.
“The challenge in these cases is whether the defense attorney is sophisticated enough to understand this approach and defend against it,” Frew says.
Few EMTALA-related Suits
Frew says the biggest effect of EMTALA violation in a malpractice action is that the jury will hear extensive evidence about the hospital’s policies and procedures and EMTALA requirements. Some courts have allowed information on the hospital’s plan of correction into evidence to show proof of violation.
“The most damaging aspect of this is that the malpractice actions against a physician sets up the regulation as an industry-wide compliance standard,” Frew explains.
This means it’s more likely a jury will choose to disregard the medical standard of care and choose to apply the regulatory standard.
“It is not impossible to win on the facts,” Frew says. “But it leaves the physician arguing more about the legal requirements than the medical judgment.” In Frew’s experience, very few hospitals or physicians involved in EMTALA citations end up getting sued by the patient.
“As most cases arise from hospital complaints, patients whose cases might have involved violations are not even aware of the violation, unless it makes the press,” he explains.
Of those patients who file complaints, most are concerned primarily about someone disciplining the hospital so the violation doesn’t recur.
“Those that do seek someone to file suit on their behalf have problems finding lawyers that understand EMTALA,” Frew explains.
Attorneys likely will decline the case if the patient’s actual damages are relatively small.
“The ones that do file suit are usually motivated by the outrageous facts — actual or perceived — or by the catastrophic outcome of the incident,” Frew adds.
SOURCES
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Stephen A. Frew, JD, Vice President, Risk Consulting, Johnson Insurance Services, Loves Park, IL. Phone: (608) 658-5035. Fax: (815) 654-2162. Email: [email protected].
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Timothy C. Gutwald, JD, Miller Johnson, Grand Rapids, MI. Phone: (616) 831-1727. Fax: (616) 988-1727. Email: [email protected].
