Sixth Circuit: Admission to the Hospital Does Not End EMTALA Liability
Third party can recover for EMTALA claim
By Robert A. Bitterman, MD JD FACEP and Michelle Bitterman Fish, JD
The case of Moses v. Providence Hospital and Medical Centers, Inc.1 could be the tipping point that finally puts to rest the oft-repeated mantra of the civil courts that "EMTALA is not a federal malpractice law."2
The Facts of the Case
Mr. Howard presented to the emergency department (ED) with severe headaches, muscle soreness, high blood pressure, vomiting, slurred speech, disorientation, hallucinations, and delusions. Ms. Moses-Irons, Mr. Howard's wife, informed the ED staff that her husband had "demonstrated threatening behavior, which made her fearful for her safety."1 Mr. Howard was medically screened in the ED and admitted to the hospital for further examination and treatment under the care of an internist, with consults from a neurologist and a psychiatrist.
Dr. Paul Lessem, the psychiatrist, felt that Mr. Howard should be moved to the psychiatric unit of the hospital for further assessment and suicidal precautions. However, instead of being sent to the psychiatric unit, Mr. Howard was released from the hospital allegedly upon refusing to agree to enter the psychiatric service area. (Whether Mr. Howard indeed declined to be cared for in the psychiatric unit is disputed; hospital progress notes indicate that he did, but Mr. Howard denied that statement during his deposition).1 Ten days after his release from the hospital, Mr. Howard murdered his wife.1
Subsequently, the estate of Ms. Moses-Irons sued Dr. Lessem and Providence Hospital, alleging they failed to stabilize Mr. Howard prior to discharge, in violation of EMTALA, and that their medical malpractice was the proximate cause of the death of Ms. Moses-Irons.
District Court Opinions
The trial court rejected the hospital's contention that "EMTALA only provides a right of action for a plaintiff who sought treatment as a hospital's patient," (which would eliminate the plaintiff's standing to sue the hospital), stating "the plain language of the statute does not preclude a lawsuit by the injured third party."1
Nonetheless, the court granted the hospital's motion for summary judgment, stating inter alia that EMTALA was not intended as a federal malpractice act and EMTALA ended once the patient was admitted to the hospital.1
Sixth Circuit Appellate Court Rulings
Three primary questions were addressed by the Sixth Circuit.
1. Can a harmed individual sue a physician under EMTALA? Even though the question was one of first impression for the Sixth Circuit, the appellate court quickly dismissed the litigation against the physician. The statute's civil litigation provision expressly allows claims "against the participating hospital," but does not refer to claims against physicians or any other individuals.3
The legislative history of EMTALA also revealed a clear intent to preclude private suits against physicians and other individuals under the law. It found that the House Judiciary Committee had changed the civil enforcement provision to "clarify that actions for damages may be brought only against the hospital which has violated the requirements of the statute."4
The court also noted that the enforcement provision of EMTALA specifically allows the government to fine physicians who violate the law or terminate them from participating in Medicare and Medicaid, but that "physicians" were conspicuously absent from the civil litigation section.5,6
In truth, the Sixth Circuit's ruling here was consistent with that of every other appellate court to address the issue; it was really already settled law.7-11 As one court poignantly stated 15 years ago: "If Congress had intended to create a private cause of action against a physician, it knew how to do so."10
2. Can individuals other than an injured patient sue the hospital under EMTALA? The court seemed to think this was a novel issue, but numerous federal and state courts have allowed non-patients who allege harm as a result of a hospital's violation of the law to sue the hospital under EMTALA.12
EMTALA's civil liability provision states that "Any individual who suffers personal harm" can sue, not only the injured patient,13 Therefore, the Court in Moses held that third parties, including family members, heirs, and an estate on behalf of a deceased patient, can sue if they suffered personal harm as a direct result of a violation.1 Personal harm can include loss of companionship, loss of consortium, loss of economic support, wrongful death, or even emotional distress or punitive damages if such damages are allowed under the applicable state law.14
3. Does admission to the hospital end the application and liability of EMTALA? This issue has been batted around for 20 years by both the courts and the government enforcement agencies with no clear resolution.
Prior Sixth Circuit Decisions.
The Sixth Circuit has consistently held that admission does not end EMTALA.1,15,16
In Thornton v Southwest Detroit Hospital, the patient was admitted with a stroke then discharged after a three-week inpatient stay, and in Roberts v. Galen of Virginia, a multiple trauma patient had been in the hospital for eight weeks. In each case, the Sixth Circuit allowed the plaintiffs to sue the hospital under EMTALA for allegedly discharging the patient in an unstable condition. (Remember that all "discharges" from a hospital, whether from an ED or the inpatient setting, are legally defined by EMTALA as "transfers," and the hospital's duty, if it has the capability to do so, is to provide sufficient treatment such that the patient is "stabilized" at the time of transfer.)15,16
The court noted that emergency care "does not stop when a patient is wheeled from the emergency room into the main hospital." It was afraid hospitals would "circumvent the requirements of EMTALA by admitting ED patients to the hospital then immediately discharging them" to avoid providing uncompensated care. Therefore, it held that emergency care must be provided until the patient's emergency medical condition (EMC) is stabilized.15,16
The hospital appealed the Roberts decision to the U.S. Supreme Court (the only EMTALA case to ever reach the Supreme Court). One of its arguments was that EMTALA was not meant to apply to inpatients or extended stays in the hospital. Unfortunately, the Supreme Court refused to decide whether EMTALA applied to inpatients, stating that the issue had not yet been "sufficiently developed below [in the trial or appellate courts] for us to assess the argument."17
Other Federal Courts.
Other circuits have struggled with the issue, though most appellate courts agreed that the law applied at least until the patient was stabilized in house.18
Federal district courts decided that EMTALA does not "reach into the hospital room of a patient admitted" because such an interpretation would turn the law into a federal malpractice act19; and the duty to stabilize or transfer must be cut off at some point, so once a hospital and physician-patient relationship and state law liability were established, EMTALA liability was terminated.20
The Fourth Circuit Court of Appeals, like the Sixth Circuit, did apply EMTALA to inpatients, but it limited the duty to stabilize only to the ambiguous "immediate aftermath" of the admission process, a nebulous concept and not the definitive "bright line" cut-off of liability that hospitals would prefer.21,22
The First Circuit also applied the stabilization requirement to inpatients, but acknowledged that if stabilization "were mandated ... without limit of time, it might encroach upon the province of state malpractice law." The court, however, refused to address the issue, choosing instead to "leave for another day precisely how we will deal with this conundrum."23
The Eleventh Circuit very cogently noted that EMTALA's stabilization mandate only applies in the event of a "transfer," as defined by the law.24 Therefore, it ruled that a hospital has no legal duty under EMTALA to provide stabilizing treatment to any patient with an EMC who is not transferred. In this case, the patient died in the hospital and therefore was not "transferred" because the definition of transfer specifically excludes "movement of an individual who has been declared dead."25
The Ninth Circuit, deciding the case of Bryant v. Adventist Health System, is the one most quoted for holding that EMTALA ends when a patient is admitted for inpatient care. It also noted that stabilization was only required if the hospital transferred the patient, and then held that the term "stabilize" was not intended to apply to those individuals who are admitted to a hospital for inpatient care. Otherwise, EMTALA would be "converted ... into a federal malpractice statute, something it was never intended to be."19,26
Government Interpretation.
From a regulatory perspective, the government generally believed that EMTALA applied to inpatients admitted through the ED until their EMC was stabilized, but not to other inpatients or even to those admitted via the ED if they developed a "new" EMC sometime after the admitting emergency was stabilized.17,27,28
In May 2002, CMS published a proposed regulation expressing its intent to apply EMTALA to inpatients.29 After a torrential condemnation from the medical community and considering court opinions, particularly the reasoning of the Ninth Circuit in Bryant, CMS reversed its interpretation, and in September 2003 published regulations holding that EMTALA ended when the patient was formally admitted, in good faith, to the hospital.26,30
Court's View after CMS Regulations.
It remained to be seen, however, if CMS's "admission defense" for hospitals, as it became known in the malpractice arena, for claims of failure to stabilize or treat EMCs would withstand assault by the plaintiff's bar.31
Some courts simply took CMS's interpretation at face value and accepted it in conclusionary fashion.32-35
Other courts, particularly in Anderson v. Kindred Hospital and Preston v. Meriter, extensively analyzed whether CMS had the authority to promulgate regulations on the issue and whether its interpretation was consistent with the statute and legally binding upon the judiciary.36,37 Both found that Congress had expressly delegated to HHS/CMS rule making powers with respect to EMTALA, and determined that there was a rational basis for its decision that was not "arbitrary or capricious" and it was therefore valid. The courts specifically cited CMS's deliberate approach to its decision-making, including publishing a proposed regulation, accepting comments from the provider and legal communities, considering the case law on the issue, and that CMS's decision was not "manifestly contrary to the statute."36,37
Sixth Circuit in Moses v. Providence Hospital.
The Sixth Circuit stuck to its interpretation that EMTALA imposes an obligation on a hospital beyond simply admitting a patient with an EMC to an inpatient care unit.1 It noted that the statute requires "such treatment as may be required to stabilize the medical condition," and forbids the patient's release unless the patient's EMC has been stabilized.1,38,39
Thus, the statute requires more than the admission and further testing of a patient, as CMS contends; it requires that actual care, or treatment, be provided such that, upon the patient's release from the hospital, no further deterioration of the EMC is likely.
The court overruled CMS's regulation that EMTALA ended when the hospital admitted the patient in good faith,30,40 stating that the rule was contrary to EMTALA's plain language, which requires a hospital to "provide ... for such further medical examination and such treatment as may be required to stabilize the medical condition...."1,38,41
Therefore, the court held that the hospital was required under EMTALA not just to admit Mr. Howard into the inpatient care unit, but to actually treat him in order to stabilize him.1
Ramifications of the Sixth Circuit's Rulings
There are three very significant potential ramifications from the Moses case. First, if this interpretation becomes mainstream law it creates an enormous expansion of hospital liability under federal law. All inpatient "premature discharge" claims would become federal claims for "failure to stabilize before transfer" under EMTALA; the hospital would be directly liable for any negligence of the admitting/discharging physician; and the states would be stripped of their sovereign right to determine for themselves the balance necessary between tort remedies or protections to ensure availability of access to care for its denizens. (Caveat for defense lawyers: This liability only attaches at the time of discharge, because the only time the hospital has the duty to stabilize a patient is when it physically "transfers" the patient, which includes discharge of the patient. This means that the care of the patient during the hospitalization is not subject to EMTALA liability, only the condition of the patient at the time of discharge will be judged under EMTALA.)
Note that EMTALA is already a federal malpractice act for emergency medicine; every patient we diagnose with an EMC and treat and release from the ED is subject to a failure to stabilize claim under EMTALA (because when we "discharge" patients, we have actually transferred them under the law, and the stabilization question is an objective one subject to the battle of the experts exactly like ordinary malpractice).
Second, also contrary to CMS regulations, EMTALA would apply to all inpatients with an EMC, including those who did not have an EMC upon admission but developed one while in the hospital, and not just those admitted through the ED. All direct admits would be subject to EMTALA at the time of discharge if an EMC was diagnosed before or during the time of admission.
Third-and this is a huge blow to academic and tertiary hospitals, the Sixth Circuit's interpretation would void CMS's 2008 regulation holding that hospitals are not required to accept inpatients in transfer from other hospitals.42 If EMTALA continues through admission until discharge, CMS loses its basis for claiming that hospitals do not have to accept inpatients with an EMC in transfer.43,44
Conclusion
For now, the Court's decision in Moses only applies to the states in the Sixth Circuit-Michigan, Ohio, Tennessee, and Kentucky. If the Sixth Circuit's opinion is affirmed by the Supreme Court, or adopted by the other federal appellate courts, then the bantering by the vast majority of courts that "EMTALA is not a federal malpractice law" will truly be moot.
References
1. Moses v. Providence Hosp. and Med Ctrs., Inc., No. 07-2111 (6th Cir. April 2009).
2. E.g., Summers v. Baptist Med. Ctr., 91 F.3d 1132 (8th Cir. 1996).
3. 42 U.S.C. § 1395dd(d)(2)(A) (2006).
4. H.R. Rep. No. 99-241, pt. 1, at 132, reprinted in 1986 U.S.C.C.A.N. 579, 728.
5. 42 U.S.C. § 1395dd(d)(1)(B) (2006).
6. Russello v. United States, 464 U.S. 16 (1983).
7. Baber v. Hosp. Corp. of Am., 977 F.2d 872 (4th Cir. 1992).
8. King v. Ahrens, 16 F.3d 265 (8th Cir. 1994).
9. Eberhardt v. City of L.A., 62 F.3d 1253 (9th Cir. 1995).
10. Gatewood v. Wash. Healthcare Corp., 933 F.2d 1037 (D.C. Cir. 1991).
11. Delaney v. Cade, 986 F.2d 387 (10th Cir. 1993).
12. Ingram v. Muskogee Reg'l Med. Ctr., 235 F3d 550 (10th Cir. 2000); Arrington v. Wong, 237 F3d 1066 (9th Cir. 2001). Smith v. Botsford General Hospital, 309 F2d 927 (E.D. Mich. 2004); Preston v. Meriter Hospital, 700 NW2d 158 (Wisc.Sup.Ct. 2005); Morgan v. North Mississippi Med. Ctr., Inc., 458 F2d (S.D. Ala. 2006); Power v. Arlington Hospital, 42 F3d 854 (4th Cir. 1994); Correa v. Hospital San Francisco, 69 F3d 1184 (1st Cir. 1995); Jackson v. East Bay Hosp., 980 F. Supp. 1341 (N.D.Cal. 1997).
13. Emphasis added. 42 U.S.C. § 1395dd(d)(3)(A) (2006).
14. Whitmore MR, Andresen JS. Decisions of the Supreme Court and DHHS continue to expand hospital liability under EMTALA. The Health Lawyer 1999;11:14-19.
15. Thornton v. SW Detroit Hospital, 895 F.2d 1131 (6th Cir. 1990).
16. Roberts v. Galen of Va., Inc., 111 F.3d 405 (6th Cir. 1997).
17. Roberts v. Galen of Va., Inc., 525 U.S. 249 (1999).
18. Kamoie BE. EMTALA: Reaching beyond the emergency room to expand hospital liability. J Health Law 2000;33:25-48.
19. Hussain v. Kaiser Foundation Health Plan, 914 F. Supp. 1331 (E.D.Va. 1996).
20. Scott v. Hutchinson Hosp., 959 F Supp 1351 (D.Kan. 1997).
21. Bryan v. Rectors and Visitors of the Univ. of Virginia, 95 F.3d 349 (4th Cir. 1996).
22. Baxter v. Holy Cross Hospital, 155 F3d 557 (4th Cir. 1998).
23. Lopez-Soto v. Hawayek, 175 F.3d 170 (1st Cir. 1999).
24. Harry v. Marchant, 291 F.3d 767 (11th Cir. May 16, 2002).
25. 42 U.S.C. § 1395dd(e)(4) (2006).
26. Bryant v. Adventist Health System, 289 F.3d 1162 (9th Cir. May 20, 2002).
27. Bitterman RA. "Providing Emergency Care Under Federal Law: EMTALA." Published by the American College of Emergency Physicians, January 2001, Supplement 2004.
28. Bureau of National Affairs Medicare Compliance Report.1998;9:1247; Health Law Reports 1998;4:1915.
29. 67 Fed. Reg. 31506-31507 (May 9, 2002).
30. 68 Fed. Reg. 53,221-53264 (Sept. 9, 2003).
31. Btterman RA. EMTALA ends oOnce patient is "admitted" to the hospital. ED Legal Letter 2008;19:121-125.
32. Haight v. Robertson et al, 2008 U.S. Dist. LEXIS 30262 (N.D. Ind. March 31, 2008).
33. Quinn v. BJC Health Sys., et al, 364 F.Supp.2d 1046 (E.D. MO. 2005).
34. Prickett v. Hot Spring County Med. Ctr., et al, 2007 U.S. Dist. LEXIS 76954 (W.D. Ark. October 5, 2007).
35. Hoffman v. Tonnemacher, 425 F. Supp.2d 1120, 1130 (E.D. Cal. 2006).
36. Anderson v. Kindred Hospital, U.S. Dist. LEXIS 23162 (E.D. Tenn. March 24, 2008).
37. Preston v. Meriter, 747 N.W.2d 173 (Wisc. App. Jan. 24, 2008).
38. 42 USC § 1395dd(b)(1)(A) (2006).
39. 42 USC § 1395dd(c)(1) (2006).
40. 42 C.F.R. § 489.24(d)(2)(i).
41. Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266 (6th Cir 1990).
42. 73 Federal Register 48,654 - 48,668 (August 19, 2008).
43. 42 U.S.C. § 1395dd(g) (2006).
44. Bitterman RA. Inpatient transfers and community on-call programs: New rules finalized. ED Legal Letter 2008;19:109-112.
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