Patient Dumping and EMTALA

Patient Dumping and EMTALA

The federal Emergency Medical Treatment and Labor Act (EMTALA), 42 U.S.C. § 1395dd, was enacted to prevent “patient dumping,” a practice in which patients are transferred from one hospital’s emergency room to another’s for other than therapeutic reasons.  EMTALA was enacted in 1986 amid growing concern over the availability of emergency health care services to the poor and uninsured. Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1039 (D.C.Cir.1991).  EMTALA applies only to hospitals that accept payments from Medicare and operate an emergency department.  However, EMTALA applies to all patients of such a hospital and not just to Medicare beneficiaries.

EMTALA puts restraints on hospitals so that they have to treat everyone the same regardless of their ability to pay.  Under EMTALA, if a person comes to an emergency room of a hospital, the hospital must “provide for an appropriate medical screening examination within the capability of the hospital's emergency department” in order to determine whether or not an emergency medical condition exists. 42 U.S.C. § 1395dd (a).  Further, the hospital must stabilize the patient with emergency medical conditions or in active labor. § 1395dd (b). 

If an individual at a hospital has an emergency medical condition which has not been stabilized, the hospital may not transfer the individual unless—

n  the individual after being informed of the hospital's obligations and of the risk of transfer, in writing requests transfer to another medical facility

n  a physician has signed a certification that based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual and, in the case of labor, to the unborn child from effecting the transfer, or

n  if a physician is not physically present in the emergency department at the time an individual is transferred, a qualified medical person has signed a certification; and

n  the transfer is an appropriate transfer to that facility.

§ 1395dd (c).

Under EMTALA, the term “emergency medical condition” means--

(A) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in--

(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or part; or

(B) with respect to a pregnant woman who is having contractions--

(i) that there is inadequate time to effect a safe transfer to another hospital before delivery, or

(ii) that transfer may pose a threat to the health or safety of the woman or the unborn child.

§ 1395dd (e)(1).

If a woman is not in active labor, that is not having contractions, then she does not fall under the terms of the statute unless her condition fits the general definition of “emergency medical condition.”  In addition, the person who does the examination must be a “qualified medical person” by hospital bylaws.  The hospital must post a conspicuous sign which notifies patients and visitors of the right to be examined and to receive treatment. 

Under the 250 yard rule, EMTALA applies beyond the emergency room setting: a person who presents anywhere on the hospital campus and requests emergency services must be handled under EMTALA.  The 250 yard rule will continue to apply when defining the “hospital campus.”  However, that sphere does not include non-medical businesses (shops and restaurants located close to the hospital), nor does it include physicians’ offices or other medical entities that have a separate Medicare identity.  Once the patient is admitted and/or stabilized, the EMTALA obligations end.

EMTALA imposes penalties for non-compliance.  A hospital which regularly negligently violates the statute may be subject to a civil monetary penalty up to $50,000 per violation.  If the hospital has fewer than 100 beds, the maximum penalty is $25,000 per violation.  EMTALA also empowers patients to bring civil suits for damages against participating hospitals, but does not provide a private right of action against treating physician. 

Courts have held that in order to comply with the “appropriate medical screening” requirement, the hospital must provide “treatment that is equal, as opposed to treatment that meets professional standards of competence.” Brenord v. Catholic Med. Ctr. of Brooklyn & Queens, Inc., 133 F. Supp. 2d 179, 185 (E.D.N.Y. 2001). Thus, a hospital fulfills the appropriate screening requirement “when it conforms in its treatment of a particular patient to its standard screening procedures. By the same token, any departure from standard screening procedures constitutes inappropriate screening in violation of [EMTALA].” Id.  “The appropriateness of the screening examination is determined by reference to how the hospital treats other patients who are perceived to have the same medical condition ... That is true even if the hospital's perception of a particular patient is based on a misdiagnosis; EMTALA is implicated only when individuals who are perceived to have the same medical condition receive disparate treatment.” Id.

EMTALA was “not intended to duplicate preexisting legal protections, but rather to create a new cause of action, generally unavailable under state tort law, for what amounts to failure to treat.” Id.  Thus, EMTALA is not a federal medical malpractice statute, and most questions related to the adequacy of a hospital's standard screening procedure “must remain the exclusive province of local negligence law.” Id.  Since EMTALA was not enacted to remedy negligent diagnosis, only refusals to follow regular screening procedures violate the statute. Id.