EMTALA update 2000: ‘Coming to the ED’
EMTALA update 2000: Coming to the ED’
By David L. Freedman, MD, JD, FAAEM, Emergency Physician; Attorney, Miller, Canfield, Paddock & Stone PLC, Ann Arbor, MI
The principal news related to the Emergency Medical Treatment and Active Labor Act (EMTALA)1 during the past year was the Health Care Financing Administration’s (HCFA’s) revision (clarification to some extent), by regulation, of the EMTALA definition of "comes to the hospital." This revision was contained within a final rule with comment period, published April 7, 2000, in the Federal Register, a rule that was primarily directed to the implementation of a prospective payment system (PPS) for hospital outpatient services furnished to Medicare beneficiaries (Final Rule).2 The Final Rule clarifies when an individual shall be considered to have "come to the hospital" for purposes of the hospital’s EMTALA obligation to provide a medical screening examination. As discussed in detail below, the revision is of greatest interest to hospitals that operate off-campus facilities that are, by regulation, "departments of a provider."
While we were able to report in the December 1999 issue of ED Legal Letter on the first EMTALA decision by the U.S. Supreme Court (Roberts v. Galen3), there have been no Supreme Court decisions this year. In the Roberts decision, the Court’s decision was very narrow, and said improper motive need not be shown for recovery under EMTALA’s stabilization requirement. Those who read last year’s ED Legal Letter update will recall that, during oral argument of Roberts, HCFA promised a rulemaking on the issue of whether EMTALA should apply to inpatients at all. The federal circuit courts are currently divided on this issue. To date, HCFA has not published the promised proposed rule on this issue, but HCFA’s press office has indicated that a notice of proposed rulemaking on the application of EMTALA to hospital inpatients is being drafted.4
In this issue, we review most of the reported federal EMTALA cases that were decided during 2000. These cases include issues such as: Did an individual in an ambulance that was diverted from a hospital, "come to the ED" for purposes of triggering EMTALA obligations? To prevail on a failure to provide an appropriate medical examination, must the hospital have acted with an improper motive? What is the standard by which an "appropriate medical screening examination" should be judged? What is a hospital’s duty to screen for risks or related conditions associated with or aggravated by a primary emergency medical condition?
Brief Review of EMTALA
Most readers undoubtedly have a basic working knowledge of EMTALA. To accommodate any readers who are not familiar with the requirements of EMTALA, this section provides a very brief summary of EMTALA. EMTALA was enacted by Congress on April 7, 1986, as a part of the Comprehensive Omnibus Budget Reconciliation Act of 1986 (COBRA). As a result, EMTALA is at times referred to as "COBRA." The legislation was a response to what was considered at the time to have been an epidemic of "patient dumping" (i.e., the transfer or refusal to care for patients because of the patient’s lack of health insurance and inability to pay, when the hospital otherwise could have provided the care required).
EMTALA imposes two basic duties on participat-ing hospitals (i.e., hospitals that have entered into a provider agreement with HCFA to provide services to Medicare beneficiaries) with EDs. First, if an individual comes to the ED (liberally construed) and a request is made on the individual’s behalf for examination or treatment of a medical condition, the hospital must provide the individual with an "appropriate medical screening examination within the capability of the hospital’s ED."5 Second, if an individual "comes to a hospital, and the hospital determines that the individual has an emergency medical condition," the hospital must provide either treatment to stabilize the individual’s medical condition or, may, with certain restrictions, appropriately transfer the individual without having stabilized the individual’s medical condition.6 For a transfer to be an "appropriate transfer," a number of requirements must be met (e.g., a physician certification that the medical benefits expected from transferring the patient for care elsewhere outweigh the risks of the transfer in physician-ordered transfers).
As enacted, the statute was, for federal legislation, quite brief, and many of its essential terms were not defined. Some of these definitions are still evolving, such as "comes to the ED," which was redefined by HCFA in the new Final Rule mentioned above and discussed in the next section. Some of the definitions have been provided in the regulations, while others have been developed by the courts as EMTALA cases have been decided. As a result, it is necessary to keep a constant eye on the development of EMTALA case law.
Comes to the ED’
One might assume that "comes to the ED," while not defined in the statute, is a clear-enough statement that its meaning should be intuitively clear. Not necessarily so. HCFA took the position, by regulation, that "comes to the ED" means "comes to the hospital’s property" in 1994.7 While it has been argued by some (and continues to be argued by some) that this was an overly aggressive and improper interpretation of the statutory language, HCFA took another expansive step in its April 7 revision of the definition. This new and expanded definition of "comes to the ED" is the subject of the next section and, as mentioned earlier, is the real EMTALA news for the year 2000.
• HCFA Final PPS Rule for Hospital Outpatient Services. The major development relative to EMTALA this year was HCFA’s inclusion of a revised definition of "comes to the hospital," in its Final Rule.8 Contained within this rule was a revision of the regulation interpreting when a patient "comes to the ED."9 The Final Rule was scheduled to become effective Oct. 10, 2000, but HCFA decided to delay implementation of its provider-based criteria from the originally scheduled Oct. 10 start-up until Jan. 10, 2001. Because of a new phase-in policy, the actual implementation date for some hospitals will not be until 2002. Those hospital personnel that are charged with responsibility for EMTALA compliance should consult with their legal counsel as to their hospital’s specific implementation date.
Hospitals often provide outpatient services at facilities that are remote from the main hospital campus (urgent care centers, hospital-owned physician practices, physical therapy facilities, X-ray facilities, clinical laboratories, etc.). If such facilities are classified as "provider-based" by HCFA for purposes of Medicare reimbursement, HCFA generally will provide higher reimbursement than it would if the same services were provided in a facility that was not "provider-based" (e.g., a private physician’s office). There is, therefore, an incentive for hospitals to characterize their off-site outpatient facilities as "provider-based." The rationale for providing higher reimbursement to "provider-based" facilities was that such facilities were presumed to be subject to the increased regulatory requirements of a hospital, which results in greater costs associated with the provision of services in such a facility. The purpose of the new regulation is to ensure that those outpatient facilities that are being reimbursed as "provider-based" are actually subject to and meeting the increased regulatory requirements as are applicable to on-site hospital outpatient departments.
The Final Rule set forth in regulations the requirements for a facility to be classified as "provider-based" and, thus, to continue to take advantage of any reimbursement advantages associated with such classification. Included in this new regulation is a definition of "department of a provider."10 Hospitals are "providers," and it is this term ("department of a provider"), and its definition, that is important because the new definition of "comes to the ED" refers to "department of the hospital" and imposes EMTALA medical screening examination obligations on such facilities.
Key language in the Final Rule provides a new definition of "comes to the ED":
Comes to the ED means, with respect to an individual requesting examination or treatment, that the individual is on the hospital property. For purposes of this section, "property" means the entire main hospital campus as defined in § 413.65(b) of this chapter, including the parking lot, sidewalk, and driveway, as well as any facility or organization that is located off the main hospital campus but has been determined under § 413.65 to be a department of the hospital.11
Section 413.65, referred to in this definition, is the regulation which provides the criteria for a determination of whether an off-campus facility is a "department of the hospital." This section provides that an off-campus facility shall be a department of the hospital if it is "a facility or organization or a physician office that is either created by, or acquired by, a main provider for the purpose of furnishing health care services of the same type as those furnished by the main provider under the name, ownership, and financial and administrative control of the main provider. . . ."12
Section 413.65 also contains the definition of "campus," which sets the geographic limits of "comes to the hospital" in the area surrounding the "main buildings" on the main campus of the hospital. "Campus" is defined as: "[T]he physical area immediately adjacent to the provider’s main buildings, other areas, and structures that are not strictly contiguous to the main buildings, but are located within 250 yards of the main buildings, and any other areas determined on an individual case basis, by the HCFA regional office, to be part of the provider’s campus."13
Among the steps hospitals must take to ensure compliance with these new EMTALA regulations is a policy to deal with the "250-Yard Rule." A perimeter zone extending at least 250 yards from the outside edges of the "main buildings" on the hospital campus must be delineated. An individual within that perimeter will be considered to have "come to the ED" and, if a request for examination or treatment for a medical condition is made on that individual’s behalf, an EMTALA medical screening examination must be provided. A prudent perimeter would be liberally drawn such that confusion is minimized. For example, a parking lot might straddle the 250-yard perimeter. In such a case, it would be easiest to deem the entire parking lot to be within the 250-yard perimeter and have a policy in place that provides for a medical screening examination for any individual who arrives anywhere within that parking lot, if a request for examination or treatment for a medical condition is made on the individual’s behalf. When drafting such a policy, it would be best not to focus too narrowly on EMTALA and its "250-Yard Rule." A prudent risk management strategy would be to address the handling of any individual on any hospital property who requests examination or treatment, or appears to require treatment. Such a policy might involve local emergency medical services providers if the campus is expansive and also might involve the local law enforcement agency.
Hospital personnel who might respond to requests for medical treatment made outside of the main hospital buildings (e.g., parking lots, driveways, and other grounds), such as security personnel, should be trained to respond appropriately to such situations and should be provided with specific protocols to refer to. If local emergency medical services providers will be involved in responding to emergencies on the hospital campus, protocols must be developed to ensure that the hospital complies with all its EMTALA obligations (e.g., the individual does not end up being "denied" a medical screening examination or is somehow transported to another facility without the proper documentation supporting such a "transfer").
The import of the inclusion of certain off-campus hospital-owned facilities in the definition of "comes to the ED" in § 489.24 is that the regulation brings those facilities within EMTALA for purposes of the provision of a medical screening examination:
If an individual comes to a facility or organization that is located off the main hospital campus but has been determined under § 416.35 of this chapter to be a department of the hospital and a request is made on the individual’s behalf for examination or treatment of a potential emergency medical condition as otherwise described in paragraph (a) of this section, the hospital is obligated in accordance with the rules in this paragraph to provide the individual with an appropriate medical screening examination and any necessary stabilizing treatment or an appropriate transfer.14
The regulation requires that hospitals establish protocols to be utilized by off-campus hospital facilities in the handling of individuals with potential emergency medical conditions.15 These protocols must provide for "direct contact between personnel at the off-campus department and emergency personnel at the main hospital campus."16 While the hospital is "not required to locate additional personnel or staff [at] off-campus departments to be on standby for possible emergencies," the protocols "may provide for dispatch of practitioners, when appropriate, from the main hospital campus to the off-campus department to provide screening or stabilization services."17 The required protocols for off-campus departments vary depending on whether the particular facility is one that is "routinely staffed by physicians, RNs, or LPNs."18
In the case of an off-campus department that is an "urgent care center, primary care center, or other facility that is routinely staffed by physicians, RNs, or LPNs, these department personnel must be trained, and given appropriate protocols, for the handling of emergency cases."19 Importantly, the regulation provides that: "At least one individual on duty at the off-campus department during its regular hours of operation must be designated as a qualified medical person as described in paragraph (d) of this section."20 That is, there must be an individual present during regular hours who is authorized by the hospital’s bylaws or rules and regulations to sign a transfer certification after consulting with a physician who has agreed with the transfer certification and will subsequently countersigns the certification.21 This simple statement requiring a "qualified medical person" to be present during regular hours at the off-campus department, therefore, contains four specific elements:
1) a "qualified medical person" must be present during all regular hours of the off-campus department;
2) the hospital bylaws or rules and regulations must state that the individual is a "qualified medical person" for purposes of EMTALA;
3) the "qualified medical person" must consult with a physician who agrees with the transfer certification;
4) the physician who agreed with the transfer certification ultimately must countersign the certification.
While the "qualified medical person" at the off-campus department may not be able to complete the screening and stabilization of patients with emergency medical conditions, the "qualified medical person must initiate screening of individuals who come to the off-campus department with a potential emergency medical condition."22
In the case of physical therapy and radiology departments, or "other facilit[ies] not routinely staffed with physicians, RNs, or LPNs, the department’s personnel must be given protocols that direct them to contact emergency personnel at the main hospital campus for direction."23 The regulation does not define "emergency personnel at the main hospital." Such personnel would presumably be the emergency physician on duty at the main hospital, or a RN in the ED, with emergency physician consultation as necessary. Under this direction from an appropriate person at the main hospital campus, and "in accordance with protocols established in advance by the hospital, the personnel at the off-campus department must describe patient appearance and report symptoms and, if appropriate, either arrange transportation of the individual to the main hospital campus [for further screening and stabilization]" . . . or "assist in an appropriate transfer [when necessary, to a medical facility other than the main hospital campus]."24 If the individual is sent to the main campus of the hospital for continued screening and/or stabilization, the movement of the patient is not considered to be a "transfer" for purposes of EMTALA.25 When drafting the new regulation, the term "transportation" was used for movement of an individual to the hospital’s main campus, as opposed to the term "transfer," which applies to the movement of an individual to a medical facility other than the main hospital campus.
Case 1: Herrmann v. Handy.26 In Herrmann, the U.S. District Court for the Eastern District of Louisiana dealt with the threshold EMTALA requirement that the individual "come to the ED," in the context of an ambulance diversion. To trigger a hospital’s obligation to provide a medical screening examination, two threshold criteria must be met:
1) the individual must have "come to the ED"
2) a request must have been made on the indi- vidual’s behalf for examination or treatment for a medical condition.27
The first of these threshold criteria was at issue in Herrmann.
The facts in the case report are scant. What we do know is that, on March 5, 1999, Joshua Kerne was shot. It was claimed by plaintiffs that, while he was being transported to the Chalmette (LA) Medical Center (Chalmette) for emergency treatment, a county sheriff’s deputy intervened and summoned an ambulance to take him to Charity Hospital, a facility that was more distant than Chalmette. The deputy allegedly was acting on notice from Chalmette that it would not handle trauma cases through its emergency ward. While en route to Charity Hospital via ambulance, Mr. Kerne died.
The plaintiffs, who were apparently the decedent’s parents, alleged that this diversion of Mr. Kerne from Chalmette to Charity Hospital was a violation of EMTALA. The defendants moved for dismissal on the basis that plaintiffs had failed to state a claim upon which relief could be granted (i.e., they had not alleged sufficient facts that, if true, could result in a verdict for the plaintiffs). The court granted defendants’ motion to dismiss because, according to the court, in order to state an EMTALA claim, there are two threshold requirements: 1) the individual must "come to the ED" and 2) a request must be made on the individual’s behalf for examination or treatment for a medical examination."27 It was the court’s finding that Mr. Kerne never came to the hospital and, therefore, there could be no EMTALA violation and the case was dismissed.
Commentary: The new regulations are clear that, if an individual is in an ambulance owned and operated by the hospital, the individual will have "come to the ED" once he or she is in such an ambulance, because he or she will be considered to be "on the hospital property," whether or not the ambulance is on the hospital grounds.28
Medical Screening Examination
Case 2: Newsome v. Dr. Ronald Mann, et al.29 On July 24, 2000, the U.S. District Court for the Eastern District of Kentucky decided an EMTALA case involving a patient who allegedly was denied an appropriate medical screening examination, but did not proffer any evidence that the alleged failure to screen was due to an improper motive. The issue for the court was: Must a plaintiff alleging a violation of the "appropriate medical screening" section of EMTALA30 prove that the defendant’s failure to provide a proper medical screening examination was the result of an improper motive (e.g., the individuals inability to pay, race, gender, or social status)?
On May 19, 1995, after consuming an unspecified amount of alcohol, Jimmy Newsome fell from his porch and struck his head on concrete. He was seen in the ED at Pikeville United Methodist Hospital of Kentucky (Pikeville) by Dr. Ronald F. Mann. Dr. Mann ordered X-rays and a computerized tomography (CT) scan, presumably of the head. However, Mr. Newsome’s family refused the X-rays and CT scan. The family had indicated that Mr. Newsome had a history of seizures and that they felt that his continued disorientation was a "normal post-seizure symptom." Mr. Newsome subsequently was discharged to the care of his family members with an instruction from Dr. Mann to return if the symptoms became more serious.
Approximately 14 hours later, Mr. Newsome’s condition did deteriorate, and his family took him to an ED at another hospital. A CT scan at that time revealed an aneurysm, and he was transferred to Holston Valley Hospital in Kingsport, TN, where he was operated upon and spent 17 days recovering from his surgery. Mr. Newsome later filed a lawsuit against Dr. Mann and Pikeville alleging a violation of the EMTALA stabilization requirement, 42 USC § 1395dd(b), together with state law malpractice claims. Because the plaintiff claimed that Dr. Mann had failed to diagnose his aneurysm and, in order to prevail on an EMTALA stabilization claim, a plaintiff must first prove that "the hospital determine[d] that the individual had an emergency medical condition," the court ruled that the plaintiff logically could not proceed on his improper stabilization/discharge claim. The court permitted the plaintiff essentially to amend his complaint to a claim of violation of the "appropriate medical screening" section of EMTALA.31
The court, following Sixth Circuit precedent (Cleland v. Bronson Health Care Group Inc.32), granted summary judgment for the defendants on the EMTALA screening claim on the basis that the plaintiff had failed to put forward evidence that he had been denied a screening examination based upon an improper motive. It remanded the malpractice claims to state court. In Cleland, the Sixth Circuit held that, an "appropriate medical screening" meant a medical screening that was "similar to care that would have been provided to any other patient, or at least not known by the providers to be insufficient or below their own standards."33 In interpreting the word "appropriate," the Sixth Circuit first described it as "one of the most wonderful weasel words in the dictionary, and a great aid to the resolution of disputed issues in the drafting of legislation."34 As the Court said: "Who, after all, can be found to stand up for inappropriate’ treatment or actions of any sort?"35 Then, the court held that interpretation of the word "appropriate" required reference to the motives of the hospital: "[A]ppropriate’ must more correctly be interpreted to refer to the motives with which the hospital acts. If it acts in the same manner as it would have for the usual paying patient, then the screening provided is appropriate’ within the meaning of the statute."36 The Court, therefore, required that, in order to prevail on an EMTALA claim based upon failure to appropriately screen, the plaintiff must show an improper motive on the part of the defendants.
Commentary: In Roberts v. Galen,37 the Supreme Court overruled the Sixth Circuit and held that, in an EMTALA stabilization claim, a plaintiff need not prove that the defendant acted with an improper motive: "§ 1395dd(b) contains no express or implied improper motive’ requirement."38 In the Roberts opinion, the court took notice of the Sixth Circuit’s previous holding in Cleland that a plaintiff in an "appropriate medical screening" case must prove that the defendant acted with an improper motive. While the court expressly declined to review this issue, which was not properly before the court, it did point out in a footnote that "Cleland’s interpretation of subsection (a) of EMTALA [the medical screening examination requirement] is in conflict with the law of other circuits [that] do not read subsection (a) as imposing an improper motive requirement."39 In its footnote, the court cited a number of decisions from other circuits that were in conflict with Cleland.
Case 3: Bloomer v. Norman Regional Hospital.40 In Bloomer, the plaintiff, Darla Bloomer, presented herself for treatment to the Norman (OK) Regional Hospital or one of its affiliated clinics on six occasions between March 1, 1996, and March 15, 1996. She variously complained of "neck and back pain, blurred vision, numbness, difficulty hearing, and high blood pressure, and informed medical personnel that her symptoms were increasing in severity."41 On each occasion, she was examined and discharged until March 15, when she was hospitalized for six days. She was diagnosed at that time as suffering from pseudotumor cerebri, a condition that resulted in total blindness.
Ms. Bloomer brought EMTALA and malpractice claims against Norman and various physician defendants. She alleged violations of both the medical screening examination and stabilization provisions of EMTALA. The court (10th Circuit Court of Appeals) first reviewed the facts necessary for a plaintiff to sustain an EMTALA claim. In the case of an alleged violation of the medical screening examination requirement, the court held that "a hospital violates section 1395dd(a) [only] when it does not follow its own standard [screening] procedures."42 That is, the issue is not whether the examination was adequate under a medical malpractice standard, but rather, simply whether the hospital provided the patient its "standard" examination for patients with similar symptoms.
Ms. Bloomer apparently based her failure to properly provide an appropriate medical screening examination claim on two facts. First, the hospital had obviously failed to find the cause of her symptoms until after the March 15 visit (i.e., she argued that her medical screening examinations were inadequate based upon an outcome standard). She apparently was attempting to argue that, because only the last medical screening examination detected her problem, logically, the medical screening examinations provided to her on all her previous visits must have been inadequate. Second, she alleged that the screening examinations were inadequate and not "standard" because she received a different medical screening examination on each visit (e.g., different ancillary tests were ordered on different days).
The court rejected these arguments. As to the first argument, the court held that the plaintiff had failed to raise any genuine issue as to whether Norman had failed to follow its own standard screening procedures. Ms. Bloomer failed to submit any hospital policy on screening procedures that she alleged was not followed or suggest any particular procedures that were omitted from her screening examinations. The court also dismissed her second argument and held that it was only reasonable that, because she complained of different symptoms on each visit, she would have logically received different examinations each time:
The fact that plaintiff received different treatment each time she sought medical attention does not, in itself, create an inference that the hospital diverged from its ordinary screening procedures. A hospital would not be expected to duplicate particular screening procedures, such as a CT scan, when a patient is seen several times over a short period of time. What is appropriate screening on the patient’s first visit may well be different by the fourth visit.43
Commentary: Most courts have rejected a malpractice (i.e., outcome) standard for medical screening examination "appropriateness," and only require that a hospital must provide its standard screening examination for patients in like condition. Some courts do, however, require that the hospital’s standard screening examination exceed some threshold of medical reasonableness.
Case 4: Reynolds v. MaineGeneral Health.44 On Sept. 8, 1996, William Reynolds was involved in a head-on motor vehicle accident. He was taken from the scene of the accident to the ED at Keenbec Valley Medical Center which, at the time this case was heard, was known as the MaineGeneral Medical Center (MaineGeneral). He was seen there by Dr. Harry Grimmnitz, the emergency physician on duty. Dr. Grimmnitz examined Mr. Reynolds and ordered a series of laboratory tests, X-rays, and an abdominal CT scan. After considering all of this information, Dr. Grimmnitz determined that Mr. Reynolds "suffered from multiple trauma to his lower right leg, including a probable open fracture of the right tibia and fibula and possible fracture of the left foot, and from a possible intra-abdominal injury."45
Dr. Grimmnitz then requested consultations from a general surgeon and an orthopedic surgeon. The general surgeon did not find any intrabdominal injury necessitating surgery, and the orthopedic surgeon determined that the fractures required operative therapy. Mr. Reynolds was taken to the operating room where the orthopedic surgeon performed a "closed reduction and intramedullary rodding of the right tibia fracture and a closed reduction and percutaneous pinning of the left second, third, and fourth metatarsal neck and head fractures."46 Following surgery, Mr. Reynolds was admitted to the hospital, where he was monitored and began physical therapy.
On Sept. 13, Mr. Reynolds was returned to the operating room for closure of his right leg wound that had been left open and, on Sept. 14, he was discharged from the hospital. On Sept. 19, 1996, Mr. Reynolds died of a massive pulmonary embolus that was alleged to have originated from a deep venous thrombosis (DVT) in his right leg in the area of his fracture.
On Sept. 8, 1998, Mr. Reynolds’ widow, Cindy Reynolds, filed a compliant alleging that MaineGeneral had: 1) failed to screen Mr. Reynolds appropriately for an emergency medical condition (DVT) in violation of 42 USC § 1395dd(a); and 2) failed to stabilize Mr. Reynolds relative to his DVT prior to his discharge in violation of 42 USC § 1395dd(b). In support of her claim, Mrs. Reynolds submitted several supporting affidavits. Mr. Reynolds’ mother-in-law, Shirley Kimball, stated in her affidavit that "she saw a man in a white lab coat ask Mr. Reynolds if he had any allergies or medical problems of which the hospital should be aware" and "that Mr. Reynolds told the man that his family had a blood-clotting problem on his father’s and brothers’ side of the family whenever they had a trauma.’"47 Mrs. Reynolds also proffered the affidavits of several other family members, "each of whom allege[d] that he or she told a MaineGeneral employee in the hospital room after Mr. Reynolds underwent surgery that Mr. Reynolds had a family history of hypercoagulability."48
The issue, therefore, was whether MaineGeneral had failed to provide an "appropriate medical screening examination" for DVT. In the U.S. District Court for the District of Maine, the magistrate judge had granted MaineGeneral’s motion for summary judgment, "having concluded that the facts did not support a federal claim for failure to screen under EMTALA even though they supported a state law claim for negligent diagnosis and treatment."49 The plaintiff then appealed the dismissal to the Court of Appeals for the Third Circuit.
The Third Circuit framed the issue as a determination of "the precise scope of a . . . hospital’s duty to screen for risks or related conditions associated with or aggravated by an emergency medical condition."50 While the parties were in agreement that Mr. Reynolds suffered from an emergency medical condition as a result of the injuries he sustained to his legs, and that MaineGeneral had a duty to provide appropriate stabilization of those injuries, the parties were in dispute as to the following question: "Does the increased risk of DVT associated with this type of injury, combined with Mr. Reynolds’ family history of hypercoagulability, trigger a duty to screen for DVT?"51
The plaintiff argued that "the risk of DVT constituted a discrete emergency medical condition,’ which required screening and stabilization under EMTALA, just as the fractures of the lower extremities required screening and stabilization."52 MaineGeneral, on the other hand, argued that "the increased risk of DVT was not an emergency medical condition’ within the meaning of EMTALA and did not require particularized screening or stabilization."53 That is, it was the hospital’s position that "risks and conditions associated with or following from emergency medical conditions that do not constitute independent emergency medical conditions’ within the meaning of EMTALA will not fall within the requirements of EMTALA."54
Mrs. Reynolds argued that, the definition of an "emergency medical condition" in EMTALA refers to "a medical condition manifesting itself by acute symptoms," as provided under 42 USC § 1395dd(e)(1), and that Mr. Reynolds was exhibiting "symptoms" of DVT in the emergency room. According to Mrs. Reynolds, the "symptoms" were: 1) the hospital’s knowledge that injuries such as those suffered by Mr. Reynolds create a substantial risk of DVT; and 2) Mr. Reynolds alleged statement that he had a family history of hypercoagulability, combined with the particular injuries from which he suffered. The court rejected this stretching of the definition of "symptoms" by the plaintiff as contrary to the literal meaning of the word in the statute and held that Mr. Reynolds did not exhibit "symptoms" of DVT while in the hospital.
Second, Mrs. Reynolds argued that the court should hold that her husband had, for purposes of the EMTALA screening requirement, "come to the ED" twice — once when he first arrived with the fractures and then, assuming he did not have DVT upon entering the hospital, a second time, during his hospitalization, when he likely developed DVT. The court rejected this creative argument, holding that: "The fact that Mr. Reynolds was in the hospital receiving treatment is a prima facie showing that the purpose of [the medical screening examination requirement] was satisfied; any failures of diagnosis or treatment were then remediable under state medical malpractice law."55
Third, Mrs. Reynolds argued that "MaineGeneral [had] screened Mr. Reynolds differently than it did other patients exhibiting similar symptoms."56 That is, Mr. Reynolds allegedly had received disparate treatment. The basis for this argument was the plaintiff’s claim that the alleged failure to ask Mr. Reynolds about his family history of blood clotting was a violation of the hospital’s general policy that, when a medical history is taken from a patient, it must be a "complete history." According to the plaintiff, in Mr. Reynolds’ case, a "complete history" would have included additional questioning regarding his family history of blood clotting. The court rejected this argument because insufficient facts were proffered to support a finding that Mr. Reynolds received "materially different screening than that provided to others in his condition."57 At best, a failure to further pursue questioning regarding Mr. Reynolds’ family history of clotting was, according to the court, a malpractice issue; as such, it was not a sufficient basis for an EMTALA claim.
The court affirmed the lower court’s grant of summary judgment for the defendants. As to the failure to screen claim specifically, the court dismissed the plaintiff’s claim because the court concluded that, because Mrs. Reynolds "failed to proffer evidence sufficient to support a finding that Mr. Reynolds was symptomatic’ for DVT, within the meaning of the statute, the hospital was not required under the statute to screen for DVT."58
Disparate Treatment Required
Case 5: Vasquez v. New York City Health and Hospitals Corp., et al.59 On May 29, 1998, at 4:30 a.m., Lilliemae Vasquez, the plaintiff, noticed that her 4-year-old son, Peter Salinas, had a fever. After realizing that her son’s temperature was not coming down, Ms. Vasquez called her health care provider and was advised to take her son to a hospital ED. She brought Peter to the ED at Coney Island (NY) Hospital at approximately 8 a.m. Upon arrival, she was sent to the pediatric section of the ED. According to Ms. Vasquez, several "nurse’s aides" attended to Peter by taking his temperature and drawing blood. Ms. Vasquez then spoke with a Dr. Kappi, and pointed out that Peter had "red spots below his knees."
While at Coney Island Hospital, Ms. Vasquez claimed that Dr. Kappi and a Dr. Tan refused to test her son for meningitis and explained that "it would require a spinal tap, which would put [Peter] at risk of becoming paralyzed or crippled."60 Ms. Vasquez claimed that, while at Coney Island Hospital, Peter was kept in a "storage room, hypodermic needles were left on his bed . . . and the bed he was in was filthy."61 According to Ms. Vasquez, Peter’s temperature was 100° F, and it was Ms. Vasquez’s impression that none of the doctors who were treating her son believed he had meningitis. Ms. Vasquez claimed that, some time before [Peter] was to be transferred to Maimonides Medical Center (Maimonides), his body turned black, but no one would tell [her] what was wrong with him."62
Peter eventually was transferred to Maimonides and taken directly to the K-2 Pediatric Special Care Unit. Shortly after Ms. Vasquez met her son at Maimonides, she claimed that Dr. Joachim Kapalanga entered the room "wearing blue jeans and a T-shirt . . . and introduced himself."63 Ms. Vasquez was asked to leave the room ("forced from the room," according to Ms. Vasquez).64 Ms. Vasquez subsequently claimed that several individuals spoke to her and informed her that her son had meningitis, "but would be fine."65
Ms. Vasquez claimed that she re-entered the room, "began to talk to her son, and held his hand in an attempt to calm him down" but was again "forced" from the room.66 Some time after this, Ms. Vasquez "heard screaming, returned to the room, and found that various machines were turned off and the machine indicating a heart beat was flat."67 The child could not be resuscitated.
Ms. Vasquez subsequently filed a lawsuit against multiple defendants and asserted 11 causes of action, including violations of EMTALA. Defendants Maimonides and Dr. Kapalanga moved to dismiss Ms. Vasquez’s complaint in its entirety. The court first reiterated that "EMTALA is not a federal malpractice statute," which was a primary basis for its ruling in the case.68
The court then addressed Ms. Vasquez’s claim that Maimonides had failed to provide her son with an "appropriate medical screening examination" (MSE). As an initial matter, the court set forth the standard for the finding of a violation of EMTALA’s MSE requirement: "[A]n appropriate medical screening examination’ under EMTALA is not judged by its proficiency in accurately diagnosing the patient’s illness, but rather by whether it was performed equitably in comparison to other patients with similar symptoms.’"69 According to the court, it is a hospital’s responsibility to "develop screening procedures to assess emergency medical conditions."70
According to the court, because the purpose of the screening provision was to prevent disparate treatment, in order to prevail on a failure to screen claim under EMTALA, a plaintiff must prove that "the hospital and physician departed from standard screening procedures in their treatment of the patient."71 As the Eighth Circuit held in Summers v. Baptist Medical Center Arkadephia, "Patients are entitled under EMTALA, not to correct or non-negligent treatment in all circumstances, but to be treated as other similarly situated patients are treated, within the hospital’s capabilities."72 While Ms. Vasquez alleged that her son was not provided an appropriate medical screening examination, she failed to allege any facts to suggest that there was any disparate treatment and, as a result, her MSE claim was dismissed.
The court’s treatment of the failure to stabilize claim was handled similarly. First, the court restated the standard for an EMTALA failure to stabilize claim: "[E]ven where the facts may support a find- ing of gross misdiagnosis, no claim is stated under EMTALA absent allegations that the hospital devi-ated from its standard screening or stabilizing procedures."73 That is, as has been stated numerous times, EMTALA is not a federal malpractice statute, and proof of negligent treatment itself is not sufficient to prevail in an EMTALA claim. Proof of disparate treatment is required. While the court was sympathetic to Ms. Vasquez, as with the MSE claim, because Ms. Vasquez failed to allege that the Maimonides or Dr. Kapalanga had deviated in any way from their standard procedures (i.e., that Peter was the victim of disparate treatment), her claim was dismissed.
Commentary: Disparate treatment and improper motive should not be confused. Courts, as a general rule, require EMTALA plaintiffs to prove disparate treatment to prevail on a failure to screen claim. On the other that, improper motive need not be proven, except in the Sixth Circuit.
But the Patient Left Voluntarily
Some hospitals and physicians are under the mistaken impression that if a patient leaves voluntarily, there can be no subsequent EMTALA claim. Not so. As the following case illustrates, potential EMTALA liability under the screening or stabilization/transfer sections is not necessarily extinguished when a patient leaves voluntarily, even if the patient signs a form indicating that he or she is leaving against medical advice.
Case 6: Vianey Malave Sastre v. Hospital Doctor’s Center Inc., et al.74 In Vianey, the patient voluntarily left the ED and later brought an EMTALA suit against the hospital. The patient had even signed a form at the hospital confirming that she was leaving voluntarily. Of crucial importance was the fact that the patient had waited several hours for treatment.
Vianey Malave Sastre arrived at the Doctor’s Center ED on July 27, 1998, at approximately 1 p.m. after having been injured in an automobile accident at approximately 12:45 p.m. that same day. Ms. Malave had suffered "multiple traumas, particularly in her right leg." Ms. Malave alleged that she was given analgesia and X-rays were obtained in the ED. While Ms. Malave alleged that only her left leg was X-rayed, the defense claimed that the right leg had been X-rayed and that the X-ray had revealed a fracture. At about 4 p.m., Ms. Malave’s husband, Olivio Aquino, who at the time was a registered nurse, arrived at Doctor’s Center. At about this time, Ms. Malave was moved to the operating room to wait for Dr. Pedro Reyes Martinez, the on-call orthopedic surgeon. In the meantime, the treating physician ordered that a posterior splint be applied to Ms. Malave’s leg. It was a matter of dispute whether the technician who applied the splint was adequately trained in such a procedure.
At about 9:30 p.m., Mr. Aquino, believing that the orthopedic physician was not coming, decided to take Ms. Malave to the Wilma N. Vazquez Hospital (Vazquez). Upon arrival at Vazquez, Ms. Malave complained that she felt "hot fluids running along her right leg [under the splint.]"75 The splint was removed, and it was claimed that her leg was found to be severely burned, allegedly due to the fact that appropriate padding had not been placed under the splint.
Ms. Malave filed suit against Doctor’s Center and several of its physicians alleging violations of the screening and stabilization sections of EMTALA. The hospital filed a motion to dismiss the plaintiff’s complaint and asserted that the plaintiff’s complaint was merely a disguised medical malpractice claim and, therefore, the federal court lacked jurisdiction over the subject matter of the case.
The court first addressed the medical screening examination issue. Since this was a pretrial motion, the issue was whether there were sufficient facts alleged by the plaintiff in support of her claim to allow the case to go forward. The court first reiterated the standard in EMTALA screening cases which is that the sufficiency of an "appropriate’ screening is properly determined not by reference to particular outcomes, but instead by reference to a hospital’s standard screening procedures."76 As stated by the Fourth Circuit, "In successfully pursuing an EMTALA claim, it is up to the plaintiff to show that, in screening him or her, the hospital failed to follow the screening policy or standard of care which it regularly follows for other patients presenting [with] substantially similar conditions."77 According to the court, Ms. Malave did adequately assert these disparate treatment allegations in her complaint in that she alleged that she was not X-rayed or otherwise examined by the physicians as would have been the standard practice for a patient with injuries similar to hers.
The court next turned to Ms. Malave’s failure to properly stabilize claim. The court first noted that, as a threshold matter, a hospital has no duty to stabilize or properly transfer a patient under EMTALA unless the hospital has determined that the patient has an emergency medical condition.78 According to the court, the burden is on the plaintiff to show that the hospital had actual knowledge of the presence of the emergency medical condition.79 The court wasted little time analyzing the medical record in deciding this issue. It ruled that a jury could conclude that the hospital was aware of Ms. Malave’s emergency medical condition simply on the basis of the fact that the hospital knew that she had been "hit by an automobile and was allegedly under excruciating pain."80
Finally, the court dealt with the hospital’s asserted defense that Ms. Malave had voluntarily signed herself out of the hospital and, therefore, the hospital must be excused from EMTALA liability. According to the court, patients may be dumped in violation of EMTALA either "actually" or "constructively."81 In this case, the court found that a jury could conclude that Ms. Malave had been "constructively" dumped by the hospital if Ms. Malave left the hospital because of an excessive wait in violation of EMTALA. The court found that, while "a hospital cannot be expected to treat patients simultaneously," it was a question of fact for a jury to decide whether the delay was sufficient to result in an EMTALA violation.82
Commentary: This case highlights an important risk-management issue for all EDs. While it is inevitable that there will be times when waiting times in the ED will be longer than others, the hospital has a responsibility, within reason, to anticipate requirements and adequately staff the ED. HCFA’s State Operations Manual Transmittal No. 2 (June 1, 1998), which provides instructions for the conduct of an EMTALA complaint investigation by the Office of Inspector General, provides that: "If it appears that a hospital with an ED does not have adequate staff and equipment to meet the needs of patients, [the surveyor should] expand the investigation to survey for compliance with the requirements of 42 CFR 482.55." Section 482.55(b)(2) provides that: "There must be adequate medical and nursing personnel qualified in emergency care to meet the written emergency procedures and needs anticipated by the facility."
The Department of Health and Human Services (HHS) recently settled an EMTALA claim brought against Suburban Medical Center in Paramount, CA, that involved a patient leaving the ED before being treated.83 The HHS’s Office of Inspector General (OIG) had concluded that the hospital had failed to provide an appropriate medical screening examination to an individual who had presented to the ED on March 31, 1997. According to the OIG, while the individual had been triaged, she was not provided with appropriate medical attention based on her present-ing symptoms, and left the hospital without receiving appropriate attention. The hospital agreed to pay HHS $13,000 to settle the charge and to place an appropriate community notice in the Sunday edition of the Los Angeles Times regarding its EMTALA obligations.
Conclusion
When considering the cases cited above, it is necessary to keep in mind that there are conflicts among the various federal circuits on some of the issues. For example, only the Sixth Circuit requires that improper motive be proven in a failure to appropriately screen case. The Supreme Court has only decided one very narrow EMTALA issue in the one case it has heard to date (a plaintiff need not prove improper motive in an EMTALA stabilization case). As a consequence, what may be "the law" in one circuit might not be "the law" in another circuit.
Assuming a hospital has EMTALA policies in place covering the basic EMTALA obligations (medical screening examinations, stabilization, on-call lists, transfers, etc.), the No. 1 action item (if it has not already been accomplished) should be to establish policies, procedures, and protocols to comply with the new regulations governing the expanded definition of "comes to the ED," including the obligations placed on off-site "departments of the hospital."
Endnotes
1. 42 USC § 1395dd.
2. 65 FR 18434 (April 7, 2000).
3. 525 U.S. 249 (1999).
4. 9 Health Law Reporter (BNA) 1347 (Aug. 31, 2000).
5. 42 USC § 1395dd(a).
6. 42 USC § 1395dd(b)(1).
7. 42 CFR § 489.24(b).
8. 65 FR 18434 (April 7, 2000).
9. 42 CFR § 489.24(b).
10. 42 CFR § 413.65.
11. 42 CFR § 489.24(b) (emphasis added).
12. 42 CFR § 413.65(a)(2).
13. 42 CFR §413.65(a)(2) (emphasis added).
14. 42 CFR §489.24(i) (emphasis added).
15. 42 CFR § 489.24(i )(2).
16. 42 CFR § 489.24(i)(2).
17. 42 CFR § 489.24(i)(1) (emphasis added).
18. 42 CFR § 489.24(i)(2).
19. 42 CFR § 424.24(i)(2)(i).
20. 42 CFR § 424.24(i)(2)(i).
21. 42 CFR § 489.24(i)(2)(i) (emphasis added).
22. 42 CFR § 489(i)(2)(i).
23. 42 CFR § 489.24(i)(2)(ii).
24. 42 CFR §489.24(i)(2)(ii).
25. 42 CFR § 489.24(i)(3).
26. 2000 U.S.Dist. LEXIS 8282 (E.D.La. 2000).
27. Id. at *4.
28. 42 CFR § 489.24(b).
29. 105 F.Supp.2d 610 (E.D.Ky 2000).
30. 42 USC § 1395dd(b)(1).
31. 42 USC § 1395dd(a).
32. 917 F.2d 266 (6th Cir. 1990).
33. Id. at 271.
34. Id.
35. Id.
36. Id. at 272.
37. 525 U.S. 249 (1999).
38. Id. at 253.
39. Id. n.1.
40. 2000 U.S.App. LEXIS 16099 (10th Cir. 2000).
41. Id. at *3.
42.Id. at •9.
43. Id. at •11.
44. 218 F.3d 78 (1st Cir. 2000).
45. Id. at 79.
46. Id. at 81.
47. Id.
48. Id.
49. Id.
50. Id.
51. Id.
52. Id.
53. Id.
54. Id.
55. Id.
56. Id. at 83.
57. Id. at 84.
58. Id.
59. 2000 U.S. Dist LEXIS 5614 (S.D.N.Y. 2000).
60. Id. at *3.
61. Id.
62. Id. at *4.
63. Id. at *5.
64. Id.
65. Id.
66. Id.
67. Id.
68. Id. at *7.
69. Id., quoting Marshall v. East Carroll Parish Hosp. Serv. Dist., 134 F.3d 319, 322 (5th Cir. 1998).
70. Id. at *9.
71. Id.
72. 91 F.3d 1132, 1138 (8th Cir. 1996) (emphasis added).
73. 2000 U.S.Dist LEXIS 5614 at *11, (emphasis added), citing Vickers v. Nash Gen. Hosp., 875 F.Supp. 313, 317 (E.D.N.C. 1995), aff’d 78 F.3d 139 (4th Cir. 1996).
74. 93 F.Supp.2d 105 (D.P.R. 2000).
75. 93 F.Supp.2d at 107.
76. Id. at 109.
77. Id. at 110, citing Power v. Arlington Hospital Association, 42 F.3d 851, 858 (4th Cir. 1994).
78. Id. at 110.
79. Id.
80. Id.
81. Id., citing Correa v. Hospital San Francisco, 69 F.3d 1184, 1194 (1st Cir. 1995).
82. Id. at 110-111.
83. 9 Health Law Reporter (BNA) 1613 (Oct. 19, 2000).
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