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Emergency Medicine MIEC Claims Alert
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Introduction
Most emergency medicine physi-cians are well aware of the Emergency Medical Treatment and Active Labor Act (“EMTALA”).1 Enacted in 1986 as the result of concern by Congress that hospitals were denying care or transfer-ring patients based on inability to pay, and strengthened by amendments in 1988 and 1989, EMTALA requires a hospital to provide, within its capabilities and without regard to a patient’s ability to pay, (I) a Medical Screening Examination (“MSE”) to all patients who present on its premises, and (ii) stabilizing care to the patient before transferring the patient to another facility. A hospital must maintain an on-call system to provide coverage assistance to its emergency physicians. A hospital also has a legal duty, under EMTALA, to accept transfers of patients if it has special capabilities needed by the patient and not available at the original hospital.2 Violations of EMTALA can result in a civil monetary penalty of up to $50,000 against both the hospital and the physician. If the violation is gross, flagrant, or repeated, exclusion from the Medicare program can result. Over and above the fine, some experts suggest that the cost of an EMTALA citation – in terms of total hours necessary to create and implement a plan of correction can be as much as $1.8 million dollars for a 400-500 bed3 hospital. In addition, the law creates a private right of action against a hospital by any individual who “suffers personal harm” as the result of an EMTALA violation and authorizes recovery of “damages available for personal injury under the law of the state in which the hospital is located.” In 1998, there were at least two developments related to EMTALA which emergency physicians should know about. Healthcare Financing Administration (HCFA) published new “site review” guidelines which will be used by its regional offices and state agencies to conduct surveys to enforce the law. Since the task force which helped to develop the guidelines includ-ed a number of emergency physicians, there was some hope that the guidelines would moderate some of EMTALA’s requirements. While that did not hap-pen, the guidelines do at least provide some clarification which should help emergency physicians and hospitals comply with the law. Second, the California Supreme Court agreed to address the important question of whether California’s MICRA limits apply to civil actions brought by patients under EMTALA. This article will address both of these topics.4 New HCFA Guidelines EMTALA applies to hospitals “with an emergency department.” The new guidelines, however, make it clear that the definition is to be broadly interpret-ed to include any hospital that provides emer-gency services within its capability, even if there is not an established emergency department. Thus, for example, if a hospital provides emergency services for psychiatric or substance abuse patients, it is subject to EMTALA. Moreover, the HCFA guidelines also make it clear that the requirements of EMTALA apply to all locations in the hospital, not just the established emergency department. Thus, if a patient arrives at a hospital and is not in the emergency department, but rather is in the parking lot or anywhere on the premises of the hospital, the patient must be screened and treated. Further, if the hospital’s routine screening process involves ancillary services provided elsewhere in the hospital other than the emergency department, these ancillary services must also be made available. However, these services must be provided in hospital-owned facilities; a patient cannot be referred to a private physician’s office, unless the physician’s office is in a hospital-owned building which is on, or contiguous to, the hospital “campus.” Also, if a patient is in a hospital-owned facility (including an ambulance) which, even if not contiguous to the campus, operates under the hospital’s Medicare provider number, EMTALA applies. Medical Screening Examination (MSE) is a process The guidelines state that an MSE is more than simply logging a patient’s name into the ED records and triaging the patient. Triage merely determines the order in which a patient is seen – it is not an MSE. The MSE is the “ongoing process” required to reach, with reasonable clinical confidence, the point at which it can be determined whether a medical emergency does or does not exist. This screening process must be the same for all patients, and only if the MSE determines that there is no emergency medical condition can the hospital withhold further services. Authorization before an MSE is not allowed The new guidelines contain a clear, unequivocal statement that it “is not appropriate for a hospital to request, or a health plan to require, prior authorization before the patient” receives an MSE and stabilizing treatment, if necessary. Emergency physicians welcome this statement because they believe it will prevent managed care entities from refusing to pay for EMTALA required services which have not been approved in advance. Indeed, it does seem that it would be hard for a managed care plan to refuse to pay for services which are required by law and for which the law specifically precludes pre-authorization requirements. On-site physician determines when patient is stable Along the same line, the HCFA guidelines make it clear that if there is a disagreement regarding a patient’s condition and whether or where additional services must be provided, it is the on-site physician who must make the decision. This provision aids emergency physi-cians in dealing with managed care entities that attempt to pressure an on-site emergency physician into transferring a patient to the managed care’s contracted facility. Medical staff by-laws must specify duty of on-call physicians to respond Another section of the new guidelines requires that hospital medical staff by-laws or policies and procedures must define the responsibility of on-call physicians to respond, examine and treat patients who have emergency medical conditions. The HCFA guidelines do not necessarily require that these policies assure the availability of all necessary back up expertise; for example, it is specifically stated that specialists are not required to be on call at all times or to be available for emergencies if they are visiting their own patients in a hospital. Nonetheless, requiring that coverage issues be addressed in hospital by-laws or policies will require medi-cal staffs to address these issues in advance and not leave the emergency physicians in limbo. In summary, the new guidelines do not appear to moderate in any significant way EMTALA’s requirements. However, they do at least provide some certitude in areas that were previously unclear. As stated above, EMTALA created a private right of action for any patient harmed by a violation of the law and allows recovery of “damages available for personal injury under the law of the state in which the hospital is located.” In late 1997, two courts in California addressed, for the first time, the question of whether California’s MICRA limits on damages in medical malpractice cases applied to EMTALA lawsuits; i.e., can EMTALA claimants recover more than $250,000 for non-economic damages? The two courts came to diametrically opposed conclusions and, in 1998, the California Supreme Court agreed to rule on the issue. Thus, sometime in 1999, there should be a definitive answer to the question. The first case to be decided was Jackson v. East Bay Hospital5 in which a widow brought an action, including EMTALA claims, following the death of her husband. It was alleged that the husband, who had a history of psychiatric problems, presented himself to Redbud Hospital on three occasions, and that his physical symptoms were ignored because he was viewed only as a psychiatric case. On the third visit to Redbud Hospital, the patient was given Haldol and it was determined that he should be involuntarily committed. The husband was then sent to East Bay Hospital, where he was given additional Haldol and then suffered cardiac arrest and died. It was alleged that the Haldol was contraindicated because of the patient’s physical symptoms and other medications he was taking. The EMTALA claim alleged that the patient was un-stable and was not given a proper MSE. Prior to trial, federal judge Marilyn Patel asked the parties to address the question of whether California’s MICRA damage limit applied to EMTALA claims; in other words, what does it mean for an EMTALA plaintiff to be able to recover “those damages available for personal injury under the law of the state in which the hospital is located?” Initially, Judge Patel rejected the plaintiff’s argument that EMTALA incorporated only broad general state provisions for damage claims and not the specific provisions of MICRA. The judge concluded that Congress intended to allow states to place limits on EMTALA recovery. By so doing, the judge reasoned, Congress balanced the goal of deterring EMTALA violations with the need to avoid a repeat of the malpractice insurance crises which threatened the availability of medical care. However, on the question of whether the MICRA limit applied to the specific cause of action for violation of EMTALA, Judge Patel concluded the damage limit did not apply, because MICRA6 limits damages in cases “based on professional negligence,” and EMTALA creates a claim which is not based on professional negligence. A few month later, a California Court of Appeal addressed the same question in Barris v. County of Los Angeles.7 In Barris, the plaintiff’s daughter (a Kaiser member) was brought to the King Drew Medical Center Emergency Room via ambulance. She was seen by a physician (Dr. Dang), who misdiagnosed her symptoms of septicemia for a viral infection and, therefore, failed to treat her with antibiotics. Dr. Dang wanted to perform additional blood tests, but was not allowed to do so by the patient’s Kaiser physician, who insisted that the patient be transfer-red to a Kaiser facility for any further testing. The child was transferred to Kaiser via ambulance, but died within one hour. Initially, the trial court dis-missed the EMTALA claim which was based on alleged failure to provide an MSE. However, the court allowed the malpractice claim and the EMTALA claim, based upon alleged failure to stabilize, to go to trial. The jury found in favor of the plaintiff and awarded $3,000 in economic damages and $1,350,000 for non-economic damages. The trial judge applied the MICRA limit to the non-economic damage, and the plaintiff appealed. The three-judge California Court of Appeal panel upheld the trial judge’s ruling and, in so doing, specifically declined to follow federal Judge Patel’s reasoning. Specifically, the Court reasoned: “The challenged conduct in this case is the hospital's failure to stabilize Mychelle Barris’ emergency medical condition prior to transferring her to another hospital. Mychelle Barris suffered from sepsis. The reason she was not stabilized was that Dr. Dang did not diagnose the sepsis, and therefore, did not administer antibiotics necessary to stabilize her. We conclude that, under these circumstances, the failure to stabilize claim was "based on professional negligence.” The Court further stated: “Although EMTALA is a cause of action separate from medical malpractice, Congress explicitly conditioned damages available in a private cause of action for a violation of EMTALA to damages available for personal injury under the law of the state in which the hospital is located. Consequently, a court must look to state law to determine whether state medical malpractice caps apply to EMTALA claims. As we have explained, the applicable California law in this case, the MICRA cap, applies to the underlying conduct challenged in the particular circum-stances of this case, and therefore applies to the EMTALA claim.” It certainly seems that the California Appellate Court’s reasoning and conclusion that the MICRA damage limits do apply to EMTALA claims, at least where the claim arises from the provision of below standard medical care, as opposed, for example, to a failure to provide care, is correct. No doubt California hospitals will be watching closely when the Supreme Court decides this issue. Conclusion Violation of EMTALA can have severe consequences for both physicians and hospitals. While 1998 did not provide any relief to emergency physicians from any of EMTALA’s more stringent requirements, the new guidelines did, at least, clarify some important issues and strengthen the hand of hospitals and emergency physicians vis-a-vis managed care entities which either tried to restrict the ability to provide legally required care to emergency patients or avoid liability for payment for such services. Each state has separate laws that may or may not affect the outcome of medical malpractice actions. A prime example is California's MICRA statute. Since EMTALA states by its own terms that it shall comport to all applic-able state laws on the subject of its limits and enforceability, unless and until Congress preempts the area, each state must determine if the state laws governing malpractice or medical negligence claims prevail. The one ray of hope seen in 1998 was the application of MICRA damage limits to EMTALA claims by at least one California court with the prospect that this question too will be definitively answered in 1999. One thing is for sure, EMTALA will be a windfall to plaintiff lawyers if the restrictions and rules otherwise applying to medical negligence actions are held not to be applicable in cases where a violation of EMTALA is alleged. If not, the likelihood of EMTALA showing up in virtually every lawsuit in some form or another, including where transfers did not occur, is sure. Plaintiff attorneys are looking for laws and ways to overcome the restrictions placed on them by various state tort reform measures and this year as well as the ensuing years will see ever greater attempts to avoid those restrictions and to have them repealed if not circumvented. For more information about EMTALA, physicians can contact HCFA at www.hcfa.gov and the American College of Emergency Physicians at www.acep.org. The California Healthcare Assoc. (CHA) has published A Guide to Patient Anti-Dumping Laws. The guide is $85 for members and $170 for non-members. Member hospitals can call 800/494-2001 for their copy of this new resource.
1. 42 U.S.C.A. 1395dd. Also known as “COBRA” or the “Anti-Dumping Law.” |
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