Monthly Archives: September 2011

EMTALA: Diving into the Murky Abyss

An ambulance radios an emergency room from the other side of town saying the ambulance is on the way to the emergency department with a woman in active labor about to deliver. The emergency room physician takes the call and tells the driver the hospital does not have an obstetrical program and that the patient should go to the other hospital two blocks away because they have a fantastic obstetrical program and can better handle the delivery. The EMS driver proceeds to take the woman to the other hospital where the baby is delivered in good health without any adverse medical effects from the transfer. As an aside the woman has fantastic private insurance and it pays all of her medical bills. Has an EMTALA violation occurred? If you live in Maine, Massachusetts, Rhode Island, New Hampshire, Puerto Rico, Hawaii, California, Washington, Oregon, Montana, Idaho, Arizona, Nevada, or Alaska the answer is probably yes. If you live in any other state, the question is still open to interpretation.

The Emergency Medical Treatment and Active Labor Act (EMTALA) was enacted by Congress in 1986 as part of the Consolidated Omnibus Budget Reconciliation Act (COBRA) as a reaction to scenarios similar to that described above (except where the results were suboptimal and in some highly publicized cases devastating). EMTALA requires hospitals that accept Medicare (which is almost all hospitals except federal military hospitals) to provide emergency medical screening and stabilization care to anyone needing emergency health care without regard to the patient’ s race, religion, ethnicity, citizenship, legal status, or ability to pay.

What does it mean to provide an emergency screening examination? EMTALA provides that any patient who comes to the emergency department requesting examination or treatment for a medical condition must be provided with an appropriate medical screening examination to determine if he is suffering from an emergency medical condition. On its face, the plain language of EMTALA seems clear; however, the legal meaning of the terms highlighted above has spawned decades of litigation that make predictability of liability in scenarios like that described above less than certain.
For example, what does it actually mean to “come to the emergency department” ? A literalist might think that it means the patient has to come into the emergency department of the hospital. But, what if the patient is an obstetrical patient that presents to the labor and delivery department of the hospital, does EMTALA still apply even though she did not “come to the emergency department” ? After much scholarly debate and legal wrangling, at least for now, this question has been answered. Coming to the labor and delivery department is adequate to invoke EMTALA.

In fact, it is pretty well settled now that coming within 250 feet of the main hospital campus (exclusive of nonhospital owned attached businesses such as gift shops or physician offices) is close enough to invoke EMTALA. Interestingly, even hospitals that do not have an emergency department (a psychiatric hospital for example) can still have EMTALA obligations invoked if the psychiatric facility typically handles psychiatric emergencies or Baker Act patients.

Likewise, “requesting examination or treatment” is not limited to its literal meaning either. If a patient’ s condition is such that it would appear that the patient needs medical attention to a reasonably prudent person, then there does not have to be a request at all.

So what is an appropriate medical screening examination? Essentially it needs to be sufficient to determine if the patient has an emergency medical condition. CMS defines emergency medical condition as a condition of sufficient severity that the absence of immediate medical attention could reasonably be expected to result in: (1) serious jeopardy to the patient’ s health; (2) serious impairment to bodily functions; or (3) serious dysfunction of any bodily organ or part.

So the obvious question is what if a patient comes to the emergency department and requests examination and treatment for an emergency medical condition, but while the patient is waiting for care decides it is taking too long and leaves the emergency department without treatment? Has an EMTALA violation occurred? If there has been an appropriate medical screening examination and the patient was told not to leave and to wait for treatment and the patient is not leaving based upon a suggestion of the hospital staff, then there is not an EMTALA violation. It would be best to get the patient to sign an informed refusal of care if possible to avoid a factual dispute should there be future litigation.

But, what if the medical screening examination was never performed before the patient left and the patient dies in the hospital parking lot? Well, then the issues becomes was the patient properly triaged, how long had the patient had to wait before s/he left, was the hospital operating above its capacity and if so, was there an offer to transfer the patient; did the patient leave at the suggestion of hospital staff, and most importantly, was there any disparity in the treatment of this patient based upon the patient’ s race, religion, ethnicity, citizenship, legal status, or ability to pay? Obviously, the best practice is to get the medical screening done quickly because not providing the screening can lead to significant liability.

Some of the key issues to remember when planning for EMTALA are that EMTALA does not by its terms or by any that have been extended to it by judicial interpretation apply to stable patients. EMTALA relates to accepting, treating and transferring unstable patients.

Also, a hospital can only perform that which is within its capability and capacity. However, it is worth noting a hospital is not at capacity just because it is exceeding it licensed bed capacity – the hospital would be expected to move stable patients, bring in additional staff, and borrow equipment before it would likely be found to be at capacity. That said, if the needed service is truly beyond the hospital’ s capability or capacity, courts have tended to not find EMTALA violations.

Given the lack of clarity regarding EMTALA, it’ s not surprising so many physicians and hospital administrators struggle with its application. To assist in clarifying this murky abyss, here are a few of the most common questions about EMTALA:

Q. If our hospital does not have an obstetrical department do we have to treat a woman in active labor?

A. Yes, if: (1) there is inadequate time to affect a safe transfer to another hospital before delivery; or (2) transfer may pose a threat to the health or safety of the woman or her unborn child.

Q. If our hospital does not have a psychiatric department and a patient presents with signs of an unstable psychiatric emergency medical condition what are the hospital’ s obligations?

A. Note: a key word here is unstable. EMTALA does not apply to stable patients. But note there have been some controversial court decisions such as the recent 9th Circuit Moses case, where a court held a hospital that admitted a psychiatric patient and kept the patient for several days before releasing the patient violated EMTALA because the hospital failed to “stabilize the patient” before discharging the patient. On the other side of the coin, a hospital only has to treat the patient within the hospital’ s capacity and capability. At least one court has held that a hospital that had no psychologist or mental health counselors on staff did not have the capacity to treat a psychiatric patient and therefore had satisfied its EMTALA obligations by performing a medical screening to determine if there was an organic cause for the psychiatric symptoms.

Q. Do EMTALA obligations end once a patient is admitted to the hospital?

A. Until 2009 most authorities on this subject were in agreement that EMTALA obligations ended when the patient was admitted into the hospital. However, in 2009, the Moses court shook up that commonly accepted wisdom with a decision that the key element for ending EMTALA responsibilities was not admitting the patient, but was “ stabilizing” the patient. The court reasoned that a patient could be admitted as an inpatient and still remain unstable and thus EMTALA could apply after a patient was admitted to the hospital. No other cases have followed or disagreed with this opinion to date and there has not been any further definitive CMS guidance on this issue.

Q. Can a patient be asked for their insurance information before the medical screening examination is performed?

A. Surprisingly yes, so long as taking the information does not delay the medical screening examination or treatment and there is no disparity in screening or treatment of the patient based upon the information collected.

Q. As a hospital on the receiving end of a transfer can I refuse to accept a transfer if there is a closer appropriate hospital with capacity to accept the patient?

A. No, you must accept the patient. The hospital can seek reimbursement for unfunded care for improperly transferred patients.

Q. If a physician knows of an EMTALA violation, is there any duty to report the violation?

A. Yes, violations must be reported to CMS within 72 hours of the violation.

Q. What if a patient presents that needs a specialist that is not available under the on-call schedule for the hospital, is transferring the patient an EMTALA violation?

A. EMTALA is vague on exactly what types of specialist must be on-call 24/7 at a hospital. Clearly, EMTALA accepts transfer agreements between hospitals as a means of covering on-call for specialists.

Q. Does EMTALA apply to physicians?

A. EMTALA is primarily geared towards hospitals, not physicians. EMTALA only imposes a penalty on a physician in the following circumstances: (1) the on-call physician fails to respond to an emergency situation; (2) a physician signs a certification to transfer where the physician knew or should have known that the certification was false; or (3) there can be direct liability for physicians working at specialty hospitals. However, lawyers being lawyers there are other ways to be sued that skirt around EMTALA either through retribution under a contract with a hospital that received a fine based upon the physician’s actions, or in a medical malpractice case where the claim is the failure to comply with EMTALA demonstrates failure to observe the usual and customary standard of care.

While it’s beyond the scope of this article, its worth pointing out that Florida has its own version of EMTALA called the Florida Access to Care and Emergency Treatment Act. Much of what is stated here about EMTALA is also true of the Florida Act. One unique provision to the Florida Act worth mentioning, however, is that Florida offers some immunity to physicians as an incentive to put patient quality first in making transfer decisions.

If you have any questions about EMTALA, please feel free to speak with an attorney at Smith & Associates.

Mounting a Successful Challenge to an Emergency License Suspension Order

Before an Emergency Suspension Order can be issued to suspend a medical license, the Department of Health must provide specific facts and reasons to support a finding of immediate danger to the public health, safety and welfare. The First District Court of Appeal recently released an opinion in which the Department failed this minimum requirement. In a unanimous decision, the court struck down an emergency order suspending the medical license of Alan Mendelsohn, a prominent ophthalmologist in Broward County.

The applicable standard of review for any Emergency Suspension Order (which allows suspension of a license without a prior hearing on the merits) is whether, “on its face, the order sufficiently states particularized facts showing an immediate danger to the public welfare.” Robin Hood Group, Inc. v. Florida Office of Insurance Regulation, 885 So. 2d 393, 396 (Fla. 4th DCA 2004). See also, Broyles v. Department of Health, 776 So. 2d 340 (Fla. 1st DCA 2001).

Instead of citing any facts which warranted the emergency license suspension, the Department of Health relied solely on a state statute and prior court opinion that permitted such emergency suspension orders where the licensee has committed a misdemeanor or felony under one of several federal statutes relating to Medicaid fraud. Previously, Dr. Mendelsohn, who was also a registered lobbyist, had entered a plea of nolo contendere in federal court to a charge of conspiracy to commit fraud upon the United States in violation of 18 U.S.C. 371 for allegedly using campaign funds for private use.

The statute relied upon by the Department – 456.074(1), Florida Statutes – specifically lists certain federal violations, including 18 U.S.C. 371, ending with the modifying term “relating to the Medicaid program.” Dr. Mendelsohn argued that the statute requires all of the listed violations be related to the Medicaid program in order for the Department to be excused from stating specific facts showing harm to the public. The Department argued that the modifier applied only to the offenses immediately preceding the modifier. The First DCA disagreed and, citing basic rules of grammatical construction and indicators of legislative intent, ruled the modifier applied to all of the listed violations. Since no facts were provided on the face of the emergency order to support a finding of immediate danger to public health, the order was stricken.

Historically, Florida courts have kept agencies from abusing the imposition of emergency moratoriums where immediacy of public harm is lacking or where the moratorium is not “narrowly tailored” to address the threat of harm. See e.g., St. Michael’s Academy, Inc. v. Department of Children and Families, 965 So. 2d 169 (Fla. 3rd DCA 2007) (allegations of isolated incidences were insufficient for emergency order suspending license because danger was not immediate and future harm was speculative); Henson v. Department of Health, 922 So. 2d 376 (Fla. 1st DCA 2006) (department’s emergency order suspending doctor’s license to practice osteopathic medicine because of narcotics violations quashed as broader than necessary to protect the public); Cunningham v. AHCA, 677 So. 2d 61 (Fla. 1st DCA 1996) (emergency suspension of psychiatrist’s license for over-prescribing narcotics to three patients was overly broad); Duabe v. Department of Health, 897 So. 2d 493, 495 (Fla. 1st DCA 2005) (emergency order to suspend petitioner’s license before administrative complaint was issued was unnecessary where petitioner stopped using an unapproved product on patients and destroyed his remaining supply before the emergency order was issued). Moreover, a demonstration of immediate serious harm to the public, and the consequent necessity for the emergency order, must be more than a general, conclusory prediction of harm. Bio-Med Plus, Inc. v. Department of Health, 915 So.2d 669 (Fla. 1st DCA 2005).

In Dr. Mendelsohn’s case, the Department currently has an administrative complaint pending with the Florida Board of Medicine to suspend or revoke Dr. Mendelsohn’s license. Unlike the Emergency Suspension Order, this course of action provides for a hearing on the merits before the license can be suspended. Even if an appellate court upholds an emergency suspension order, the licensee is entitled to an administrative hearing on the merits.

If you have any questions about Department of Health Emergency Suspension Orders and your rights to contest them, please feel free to speak with an attorney at Smith & Associates.