There are updates here for The Federal Patient Dumping Statute, Note 1, Note 2, Note 4, and Note 6

Notes: The Federal Patient Dumping Statute

Note 1

In response to concerns about the unfunded mandate aspect to EMTALA, Congress appropriated $1 billion over four years starting in fiscal year 2005 to reimburse health care providers for the cost of care mandated under EMTALA for undocumented immigrants (H.R. 1, 2003)

The American College of Emergency Physicians (ACEP) expressed its concerns about EMTALA in a December 1999 report, Defending America's Safety Net. According to the ACEP, the large costs of providing uncompensated emergency care to indigent patients is compromising the quality of emergency care in this country.

In July 2001, the Centers for Medicare & Medicaid Services (CMS) issued answers to 25 questions about the application of EMTALA regulations. For example, CMS explains that:

An EMTALA screening obligation on the part of the hospital is triggered in one of two ways: first, when the individual presents at a hospital's emergency department, and requests examination or treatment for a medical condition. Second, when the individual presents elsewhere on hospital property (that is, at a location that is on hospital property but is not part of a recognized emergency department), and requests examination or treatment for an emergency medical condition.

We note that a hospital also would incur an EMTALA screening obligation if the individual was not able to make a verbal request, but showed symptoms that indicated an obvious possibility of an emergency medical condition. This policy does not require that an emergency medical condition be found, upon subsequent medical examination, to exist; rather, in the absence of a request for examination or treatment of an emergency medical condition, a prudent layperson observer, would believe, based upon the individual's symptoms, that the individual needs emergency care.

(CMS is the new name for what used to be called the Health Care Financing Administration (HCFA)).

Note 2

Screening and Stabilizing. In an advisory statement, the Office of Inspector General at HHS made clear that emergency rooms cannot delay their screening or stabilization for patients who are members of managed care plans in order to obtain prior authorization for treatment from the plans. 64 Fed. Reg. 61353 (November 10, 1999).

Note 4

Preventive Dumping. For further elaboration on what it means to come to the emergency department, see the Fall 2003 final rule.  The AMA has provided a nice summary of the final rule.

A hospital does not assume EMTALA liability for failing to immediately transport to its emergency department a person injured on the hospital's property, according to a federal district court.  In Addiego v. City and County of San Francisco, a woman suffered a broken hip when she fell in a hospital's parking garage.  Although the woman was only 30 yards from the emergency department, the garage attendant called the hospital's security, which in turn called 911 for emergency medical services.  An ambulance took the woman to the hospital's emergency department, but an hour elapsed between the time of injury and the time of arrival.  The woman alleged that the delay exacerbated her injuries, but the court held that EMTALA imposed no obligation on the hospital to send its emergency care providers to the parking lot to provide care, nor did EMTALA impose a duty on the hospital to transport the woman to its emergency department.  2006 U.S. Dist. LEXIS 6517 (N.D. Cal. 2006).

Note 5

Dumping after Admission to the Hospital. The Sixth Circuit, which concluded in the Thornton case that the obligation to stabilize persists through the patient’s hospitalization, has rejected the 2003 CMS regulation (under which EMTALA does not apply to inpatients or outpatients at a hospital). Moses v. Providence Hosp. & Med. Ctrs., Inc., 561 F.3d 573, 583 (6^th Cir. 2009). The Third Circuit, on the other hand, has upheld the regulation.  Torretti v. Main Line Hosps., Inc., 580 F.3d 168, 174-176 (3^rd Cir. 2009) (interpreting 42 C.F.R. § 489.24(b) when an EMTALA claim was brought by an outpatient). 

Note 6

Appropriate Medical Screening.  In a First Circuit case, the court held that a hospital does not meet its EMTALA obligation to provide an appropriate medical screening when it fails follow its own protocol for screening a patient in the emergency department.  Cruz-Queipo v. Hospital Espanol Auxilio Mutuo De Puerto Rico, 417 F.3d 67 (1st Cir. 2005) (remanding the case to the district court to resolve the factual question whether or not the hospital followed its protocol).

Statute of Limitations. The Second Circuit held that states could shorten the statute of limitations for EMTALA claims. In Hardy v. New York City Health & Hospital Corp., at issue was a New York law that requires notice to municipal corporations within 90 days of an incident as a condition to bringing a personal injury action. The plaintiff had been seen in the emergency room of a hospital operated by the New York City Health and Hospitals Corporation, and allegedly was not given an appropriate medical screening before being discharged in an unstable medical condition. While the plaintiff had brought her suit within the two year statute of limitations of EMTALA, she had not satisfied the 90-day-notice-of-claim rule in New York. The court noted that EMTALA's preemption clause, section 1395dd(f), provides that the statute does not preempt state or local law, except in cases of direct conflict. For discussion of the case, see BNA's Health Law Reporter, January 28, 1999. The case citation is Hardy v. New York City Health & Hospital Corp., 164 F.3d 789 (2d. Cir. 1999). See also Draper v. Chiapuzio, 9 F.3d 1391, 1393 (9th Cir. 1993) (applying Oregon's one-year statute of limitations to EMTALA claims).

The New Mexico Court of Appeals, in contrast, held that New Mexico's 90-day notice-of-claim requirement for tort claims was preempted by EMTALA's two-year statute of limitations with respect to EMTALA causes of action. Godwin v. Memorial Medical Center, 25 P.3d 273, 281-282 (N.M. App. 2001).

A number of courts have held that EMTALA imposes a strict two-year statute of limitations, with no tolling of the statute for discovery delays, infancy or incompetency, or the time needed to conduct pre-litigation screening provisions under state law.  Vogel v. Linde, 23 F.3d 78 (4th Cir. 1994); Power v. Arlington Hospital, 42 F.3d 851 (4th Cir. 1994);  Merce v. Greenwood, 348 F. Supp. 1271 (D. Utah 2004).

Caps on Damages. Several courts have applied state law caps on damages to EMTALA claims. See, e.g., Smith v. Botsford General Hospital, 419 F.3d 513 (6th Cir. 2005); Power v. Arlington Hosp. Ass'n, 42 F.3d 851, 860-865 (4th Cir. 1994); Feighery v. York Hosp., 38 F.Supp.2d 142, 158 (D. Maine 1999); Barris v. Los Angeles, 972 P.2d 966 (Cal. 1999); Godwin v. Memorial Medical Center, 25 P.3d 273, 282-283 (N.M. App. 2001), cert. granted. These courts cite a provision in EMTALA, according to which plaintiffs can recover "those damages available for personal injury under the law of the State in which the hospital is located." 42 U.S.C. Sec. 1395dd(d)(2)(A). Three district courts, on the other hand, have concluded that EMTALA incorporated state caps on personal injury claims but not state caps that are specific for medical malpractice claims (which is consistent with the idea that EMTALA causes of action do not include suits for malpractice). Jeff v. Universal Health Care, 2005 U.S. Dist. LEXIS 17819 (E.D. La.); Jackson v. East Bay Hospital, 980 F. Supp. 1341, 1348-1350 (N.D. Cal. 1997); Cooper v. Gulf Breeze Hospital, Inc., 839 F. Supp. 1538, 1541-1543 (N.D. Fla. 1993).

Sovereign Immunity. Even when plaintiffs satisfy all of the requirements of an EMTALA claim, they may not be able to recover damages against a state hospital. In an unpublished opinion, the 6th Circuit held that state hospitals are protected from monetary penalties by the Eleventh Amendment's guarantee of sovereign immunity. Drew v. University of Tennessee Regional Medical Center, 211 F.3d 1368, 2000 WL 572064 (6th Cir. 2000) (unpublished opinion). See also Ward v. Presbyterian Healthcare Servs., 72 F. Supp. 2d 1285 (D. N.M. 1999); Thomason v. Medical Center of Louisiana at New Orleans, 2001 U.S. Dist. LEXIS 12108 (E.D. La. 2001). A state's own sovereign immunity statute, on the other hand, would not bar an EMTALA suit. Root v. New Liberty Hospital District, 209 F.3d 1068 (8th Cir. 2000).

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