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At Your Defense: Are Federal Courts Turning EMTALA into a Malpractice Statute?

Reyes, Carlo MD, JD

Dr. Reyes is an assistant professor of pediatrics and a clinical instructor of emergency medicine at Olive View/UCLA Medical Center, a health law attorney with Boyce Schaeffer, LLP, in Oxnard, CA, and a founder and the CEO of healthelaw.com, which provides medical-legal education for doctors starting in medical school, through residency training, and beyond.

I always had the feeling that most busy emergency departments were turning to the provider-at-triage concept to keep their door-to-greet times low. I've worked at places in the past four years that see a lot of patients — ranging from 120 to 350 patients a day. These busy places made me realize how important provider-at-triage is for ED groups to maintain high patient satisfaction scores and fast ED metrics in this era of “pay-for-value” medicine, but it has alerted me to the malpractice and EMTALA pitfalls of provider-at-triage.

I've received a fair amount of email from readers about this that varied from praise to criticism to disbelief. It is time we came full circle to delve into the source of the angst: the realization that EMTALA is becoming a federal malpractice statute, contrary to the intent of Congress.

EMTALA was not intended to be a federal malpractice statute, as every district court EMTALA opinion mechanically iterates. Rather, EMTALA, as the “anti-dumping statute,” was enacted in 1986 to prohibit hospitals from refusing to treat uninsured patients. The black letter law of EMTALA conveys to hospitals three main duties. Hospitals must provide every ED patient “an appropriate medical screening examination within the capability of the hospital's emergency department.” (42 U.S.C. §1395dd.) A hospital violates EMTALA if it does not provide a patient with the same evaluation it routinely provides to screen for an emergency medical condition because of insurance status.

If the screening exam discovers an emergency medical condition, EMTALA confers upon hospitals a duty to stabilize the patient, which requires hospitals to provide medical treatment “as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to … occur.” (Id., §1395dd [emergency][3][A].) If a hospital cannot capably stabilize the condition, EMTALA requires the hospital to orchestrate an appropriate transfer to another facility that can, and it requires the physician to provide stabilizing treatment to minimize risk of deterioration during transport, among other requirements.

Financial Incentives

Plaintiff attorneys are adept at drafting the complaint into a federal question that embodies the EMTALA issue, pushing the case into federal court. The offending hospital and physicians are subject to civil money penalties up to $50,000 per violation under EMTALA. Multiple violations may accrue with each defendant, and these penalties are not subject to state tort cap limits and are not covered by malpractice insurance.

EMTALA allows an injured patient to sue the offending hospital for personal injuries, and also allows the receiving hospital to sue the sending hospital for financial injuries incurred by the violation. Some federal courts have held that state tort caps on damages do not apply in disparate screening violation cases. The Eastern District Court held in Romar v. Fresno that the plaintiff's EMTALA disparate screening claim is not subject to the Medical Injury Compensation Reform Act (MICRA), California's noneconomic damages cap. (583 F.Supp2d 1179 [E.D.Cal. 2008].)

This has far-reaching implications. Physicians cannot be individually sued under EMTALA, but a hospital can seek indemnification to recoup its losses against a physician who may be largely to blame for the EMTALA violation. Couple this with the idea that some federal courts are removing the damages cap on EMTALA claims, and the stakes just got that much higher. The upshot here is that plaintiff attorneys now have an even deeper pocket to reach into and an even better venue to seek: federal court.

The Federal Impact on EMTALA

The EMTALA analysis closely resembles a negligence analysis when one considers that an emergency physician must assume those duties that EMTALA imparts to the hospital. The physician-at-triage actively screens for an emergency medical condition by ordering tests, but he may be subject to scrutiny for performing a cursory exam, ordering the wrong tests, or documenting poorly. The medical screening exam is not complete until an emergency medical condition is discovered or ruled out, and depends largely on the emergency physician's effective utilization of ED resources and on-call consultants. Importantly, courts have acknowledged that a physician's EMTALA duty to stabilize an emergency medical condition with reasonable medical certainty is “inextricably intertwined” with professional negligence. (See Romar at 1188.)

The Sixth Circuit stretched EMTALA beyond its legislative intent in Moses v. Providence Medical Center by interpreting the stabilizing duty to extend beyond the emergency department and into the inpatient stay. (561 F.3d 573, 582 [6th Cir. 2009].) Under Moses, an inpatient physician can be in violation of EMTALA for discharging a patient admitted through the ED if the court finds that the emergency medical condition is not stabilized. The noted EMTALA expert Robert Bitterman, MD, JD, summarized it succinctly: “Although not exactly the same as a negligence analysis, EMTALA is a malpractice statute.”

I will review cases that may offer insight into defending against federal EMTALA claims in the coming months.
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At Your Defense: Physician-at-Triage: No Protection against EMTALA Violations,
More Malpractice Vulnerability - Reyes, Carlo MD, JD


Dr. Reyes is a clinical instructor in the departments of emergency medicine and pediatrics at Olive View/UCLA Medical Center, a health law attorney with Boyce Schaeffer, LLP, in Oxnard, CA, and the founder and CEP of healthelaw.com, which provides medical-legal education to doctors, starting in medical school, through residency training, and beyond.


On its face, the concept makes sense: placing a doctor at triage would make things go faster. It would help the triage nurse. Sicker patients would be identified faster. Orders would be submitted at triage, expediting care. Patient satisfaction would go up, pleasing hospital administration. It's a win-win, right?

Think again.


Physician-at-triage is an emerging concept to combat ED crowding. Annual ED visits have ballooned from 96.5 million visits in 1995 to 115.3 million in 2005, and this influx of ED patients, coupled with the lack of inpatient beds, shrinking subspecialty panels, and sparse mental health services, has caused the ED crowding problem to rear its ugly head. Forced to find new ways to improve ED throughput, hospitals and ED groups started moving physicians and midlevel providers into triage to initiate the medical screening exam.


The benefits of physician-at-triage to the hospital appear numerous. For one, it appears to satisfy the all-important EMTALA medical screening exam requirement. The Centers for Medicare & Medicaid Services, under the Emergency Medical Treatment and Active Labor Act, require all hospitals to provide ED patients with a medical screening exam to determine whether each patient has an emergency medical condition. If an emergency is found, the physician is obligated to stabilize the patient or transfer him if necessary. Breach of the duty to screen for an emergency or to stabilize an emergent condition under EMTALA can bring fines up to $50,000 per violation for the hospital and the physician separately, which would not be covered by a physician's malpractice insurance.


One can see the incentive for a busy hospital to place a physician at triage to avoid an EMTALA medical screening breach. EMTALA imposes the duty of hospitals to screen all patients for an emergent condition, regardless of ability to pay, ethnicity, and insurance status. The federal courts also have interpreted EMTALA broadly, infusing other “requirements” not found within the black letters of the statute.


The black letter law of EMTALA, for example, requires hospitals to provide all patients who present to its emergency department with a medical screening “within the capability of the hospital's emergency department.” Hospitals have been found in violation of EMTALA, however, when federal courts have ruled that the screening exam was so cursory that it could not have alerted the physician to an emergent condition, and therefore was not an appropriate medical screening exam. (Baker v. Adventist Health, Inc., 260 F.3d 987, 995 [9th Cir.] 2001.) Physicians must be adept at statutory interpretation as well as judicial analysis to truly understand EMTALA. Only then can physicians practice medicine responsibly within the legal boundaries of EMTALA.


How does this lofty EMTALA legal analysis apply to emergency physicians? It is important to say that EMTALA is, by far, the most important federal statute to emergency physicians, and we need to be the EMTALA experts for our hospitals, our hospital administrators, our hospitalists, and our subspecialists. We need to be the protectors of our peers.


EMTALA really is this important because it is not covered by malpractice insurance, and as a federal statute trumps state statutes that may have their own statutory caps on noneconomic damages. The same facts can be used for a medical negligence action or an EMTALA action, meaning every state malpractice claim theoretically can be moved to federal court if a court finds a federal (EMTALA) issue, which would, in turn, remove any state statutory cap protections.


It's also important to analyze how EMTALA affects the physician-at-triage concept. Once a physician initiates a medical screening exam at triage, the screening process is started. EMTALA is at least satisfied by initiation of medical screening. The duty of the medical screen is not couched in terms of negligence, and EMTALA's intention, in fact, is not a federal malpractice statute. Rather, EMTALA was intended to prevent disparate screening, the so-called anti-dumping statute. A hospital has met EMTALA's screening requirements as long as it sees and screens all patients for an emergency medical condition in some impartial fashion, in accordance with our country's civil rights background.


The problem occurs when a triage doctor encounters patient after patient in a busy emergency department, and writes orders on each patient in an attempt to expedite care. Similar to a triage nurse, a triage doctor sees a patient, does a cursory exam, and then writes orders, telling the patient another doctor will finish his care. What the doctor does not realize, however, is that this initiates the physician-patient relationship, a legal duty that creates the potential for negligence action, even if another doctor picks up the case.


Hospitals may rely on the erroneous notion that physicians at triage will satisfy the screening duty of EMTALA, but as the court found in Baker, a screening exam could be so cursory that it breached this duty, especially if there is further delay or the patient later leaves and never completes his care. It is likely that a provider who initiates a screening exam at triage for any moderate to complex cases would be cursory under the Baker analysis and therefore an “inappropriate” medical screening exam within the statutory meaning of EMTALA.

Next month: How physicians can work collaboratively with hospital administrators to ensure that ED processes do not create new EMTALA and malpractice liabilities.


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