When Patients Require Transfer

It is a common occurrence in the emergency department for a patient to be transferred from one facility to another. Generally speaking, Federal law ' specifically the Emergency Medical Treatment and Active Labor Act (EMTALA) ' provides regulatory oversight regarding transfers.

However, there are few cases extending the EMTALA regulatory scheme to private causes of action for malpractice. And some states provide an immunity defense for emergency care providers unless there is proof of “gross negligence.” In such states, the immunity defense may apply through the time the patient is “stabilized.” What is less clear, however, is whether the immunity applies when the patient needs to transferred to a different medical facility for appropriate treatment of the emergency condition. In such situations, some of the questions include whether the emergency department providers arranging for the transfer are still entitled to immunity, whether the immunity is limited by time, or whether the immunity ends because of the amount of time it took to acquire the transfer.

It helps to look at the various statutes and how the appellate courts have applied or limited the scope of the immunity as it relates to the transfer of a patient.

State Laws

It is not uncommon to see a medical malpractice case arising out of treatment received in an emergency situation. State legislatures are becoming more sensitive to this litigation and the effect that it has on the cost of medical malpractice insurance, as well as access to medical treatment.

One such state, Georgia, took action in 2005. The Georgia General Assembly passed a comprehensive “tort reform” package in response to what was characterized as a “crisis affecting the provision of health care services in the state.” This situation, it was argued, resulted in costly liability insurance that was difficult to obtain. See Ga. Laws 2005, Act 1, ' 1.

As a part of the 2005 tort reform, the Georgia legislature provided immunity against claims of negligence to medical providers arising out of “emergency
medical care.” The statute provides:

In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department … immediately following the evaluation or treatment of a patient in a hospital emergency department, no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider's actions showed gross negligence.

O.C.G.A. ' 51-1-29.5 (c).

The statute defines “emergency medical care” as:

bona fide emergency service provided after the onset of a medical or traumatic 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 placing the patient's health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or care that is unrelated to the original medical emergency.

O.C.G.A. ' 51-1-29.5 (a)(5).

This statute does not define when a patient is “stabilized,” nor does it have durational limitation on the immunity.

Other states also provide similar immunities for emergency medical care. Texas, for instance, has a statute nearly identical to that in Georgia. See Vernon's Texas Codes Annotated (V.T.C.A.), Civil Practice & Remedies Code ” 74.001, 74.153. Several other jurisdictions have varying forms of immunity for emergency care providers. See, e.g., (Arizona Revised Statutes (A.R.S.) ' 12-572 (Arizona); Kansas Statutes Annotated (K.S.A.) 65-6124 (Kansas); South Dakota Codified Laws (S.D.C.L) ' 20-9-3 (South Dakota); Utah Code Annotated (U.C.A.) 1953 ' 58-13-2.5 (Utah).

What Qualifies As 'Emergency Care'?

The threshold question for determining immunity in all these states is whether the care rendered qualifies as “emergency care.” Arizona has discussed the difficulties in ascertaining what qualifies as emergency care. In Thompson v. Sun City Community Hospital, 141 Ariz. 597 (1984), the Arizona Supreme Court recognized that what constitutes an emergency is a matter of some disagreement, with a common thread for various definitions being the need for immediate attention. Thompson, supra, at 604. The Thompson court went on to opine that “ordinarily, it is for the jury to determine the factual question of the duration of an emergency.”

Texas has also struggled with the definition of “emergency care.” That state's statute (like the Georgia statute) precludes immunity for medical care provided “after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient.” Tex. Civ. Prac. & Rem Code Ann. ' 74.001. Texas courts have addressed the applicability and duration of the Texas statute, but have come to contradictory conclusions. In Turner v. Franklin, 325 S.W.3d 771 (Texas, 2010), Texas' high court considered whether emergency care immunity applied when the physician did not believe that a patient was suffering from an emergency condition, even though it was later determined that the patient's condition actually did pose an emergency. The Turner court found that a physician renders “emergency care” when the patient's condition had rapid origination and there
is an urgent need for immediate medical attention to minimize the risk of serious consequences. Id. at 778.
Accordingly, the emergency care statute applied in Turner because the physician responded to the sudden onset of acute symptoms that could reasonably have been expected to result in serious consequences to the patient. Thus, even though the physician did not initially recognize that the situation was an emergency (and arguably considered the patient stabilized), his actions fell under the realm of the statute and he could be held liable only for willful and wanton conduct.

A case litigated in 2009 in the Southern District of Texas construed the same emergency care statute and came to a different conclusion, holding a doctor did not provide “emergency medical care” when he did not perceive a patient's condition as an emergency. Guzman v. Memorial Hermann Hospital System, 2009 WL 780889 (S.D.Tex., March 23, 2009). The Guzman court articulated that Texas' emergency care statute was intended to offer protection from liability “for decisions made and actions taken during sudden emergency situations with no time for deliberation and no time to learn about the patient's history.” Guzman, supra at *8. Additionally, it stated that the “willful and wanton” standard ceases to apply after the treatment of an emergency condition has stabilized the patient. The court further commented that if a physician takes actions to treat an emergency condition, a factual issue may arise as to whether and when the patient was stabilized, at which time the “willful and wanton” standard becomes inapplicable.

When Does 'Stabilization' Occur?

In the states that provide immunity until a patient is “stabilized,” it is largely unclear at what point stabilization occurs. Specifically, if a patient presents with a condition that cannot be adequately addressed at that facility, he or she will need to be transferred to a different medical provider. There is a lack of case law interpreting how long the immunity defense lasts in the setting of a patient who needs to be transferred to another facility. It is unclear whether the care rendered in the intermediate time between presentation to the emergency room and the actual transfer falls under the emergency medical care statute or qualifies as care “after the patient is stabilized,” and is thus subject to the regular standard-of-care analysis.

Applying the Statutes to the Real World

Obtaining a transfer requires several communications between facilities and between physicians. Typically, this begins with a phone call from the current medical facility to a nearby facility that has the capability to address the patient's particular situation. A patient cannot be transferred until the second facility has both space available for the patient and a physician available who has the ability to treat the patient. If either of these requirements is lacking, the second facility will decline the transfer. If the second facility has space available, the physicians at the current facility and at the new one must communicate to ascertain whether the potential physician is capable of treating the patient. This communication may require several phone calls and can take time.

Until the patient is accepted for transfer, that patient will have to wait at the current facility for an unidentified duration. It is cases such as these that most frequently give rise to questions about the applicability of emergency care statutes.

In cases requiring transfers, it is entirely unclear how the appellate courts will interpret the statutes. The answer appears to be a fact-specific analysis. On the one hand, it is possible that a court will conclude that the heightened burden of proof applies to all care rendered between a patient's presentation to the emergency room and the time of transfer, consistent with Turner decision. Alternatively, if a court follows the approach taken in Guzman, it might conclude that the duration between the patient's presentation and transfer is sufficient for a physician to obtain the patient's history and “stabilize” the patient.

In either situation, the lack of authority on the duration of immunity under emergency care statutes and the lack of clear definitions regarding when a patient is stabilized result in litigation over the applicability of the statutes themselves, increasing litigation costs and in turn, increasing the cost of liability insurance. Until the law pertaining to such statutes develops ' through legislative clarification or extensive interpretation by the courts ' it seems unlikely that the statutes will be effective in achieving their intent; that is, to decrease the costs associated with health care liability insurance and increase accessibility to medical care.

Angela Forstie is an associate with Carlock, Copeland & Stair, LLP in Atlanta, where she concentrates her practice on medical malpractice defense, legal malpractice defense, and commercial litigation.

It is a common occurrence in the emergency department for a patient to be transferred from one facility to another. Generally speaking, Federal law ' specifically the Emergency Medical Treatment and Active Labor Act (EMTALA) ' provides regulatory oversight regarding transfers.

However, there are few cases extending the EMTALA regulatory scheme to private causes of action for malpractice. And some states provide an immunity defense for emergency care providers unless there is proof of “gross negligence.” In such states, the immunity defense may apply through the time the patient is “stabilized.” What is less clear, however, is whether the immunity applies when the patient needs to transferred to a different medical facility for appropriate treatment of the emergency condition. In such situations, some of the questions include whether the emergency department providers arranging for the transfer are still entitled to immunity, whether the immunity is limited by time, or whether the immunity ends because of the amount of time it took to acquire the transfer.

It helps to look at the various statutes and how the appellate courts have applied or limited the scope of the immunity as it relates to the transfer of a patient.

State Laws

It is not uncommon to see a medical malpractice case arising out of treatment received in an emergency situation. State legislatures are becoming more sensitive to this litigation and the effect that it has on the cost of medical malpractice insurance, as well as access to medical treatment.

One such state, Georgia, took action in 2005. The Georgia General Assembly passed a comprehensive “tort reform” package in response to what was characterized as a “crisis affecting the provision of health care services in the state.” This situation, it was argued, resulted in costly liability insurance that was difficult to obtain. See Ga. Laws 2005, Act 1, ' 1.

As a part of the 2005 tort reform, the Georgia legislature provided immunity against claims of negligence to medical providers arising out of “emergency
medical care.” The statute provides:

In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department … immediately following the evaluation or treatment of a patient in a hospital emergency department, no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider's actions showed gross negligence.

O.C.G.A. ' 51-1-29.5 (c).

The statute defines “emergency medical care” as:

bona fide emergency service provided after the onset of a medical or traumatic 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 placing the patient's health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or care that is unrelated to the original medical emergency.

O.C.G.A. ' 51-1-29.5 (a)(5).

This statute does not define when a patient is “stabilized,” nor does it have durational limitation on the immunity.

Other states also provide similar immunities for emergency medical care. Texas, for instance, has a statute nearly identical to that in Georgia. See Vernon's Texas Codes Annotated (V.T.C.A.), Civil Practice & Remedies Code ” 74.001, 74.153. Several other jurisdictions have varying forms of immunity for emergency care providers. See, e.g., (Arizona Revised Statutes (A.R.S.) ' 12-572 (Arizona); Kansas Statutes Annotated (K.S.A.) 65-6124 (Kansas); South Dakota Codified Laws (S.D.C.L) ' 20-9-3 (South Dakota); Utah Code Annotated (U.C.A.) 1953 ' 58-13-2.5 (Utah).

What Qualifies As 'Emergency Care'?

The threshold question for determining immunity in all these states is whether the care rendered qualifies as “emergency care.” Arizona has discussed the difficulties in ascertaining what qualifies as emergency care. In Thompson v. Sun City Community Hospital , 141 Ariz. 597 (1984), the Arizona Supreme Court recognized that what constitutes an emergency is a matter of some disagreement, with a common thread for various definitions being the need for immediate attention. Thompson, supra, at 604. The Thompson court went on to opine that “ordinarily, it is for the jury to determine the factual question of the duration of an emergency.”

Texas has also struggled with the definition of “emergency care.” That state's statute (like the Georgia statute) precludes immunity for medical care provided “after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient.” Tex. Civ. Prac. & Rem Code Ann. ' 74.001. Texas courts have addressed the applicability and duration of the Texas statute, but have come to contradictory conclusions. In Turner v. Franklin , 325 S.W.3d 771 (Texas, 2010), Texas' high court considered whether emergency care immunity applied when the physician did not believe that a patient was suffering from an emergency condition, even though it was later determined that the patient's condition actually did pose an emergency. The Turner court found that a physician renders “emergency care” when the patient's condition had rapid origination and there
is an urgent need for immediate medical attention to minimize the risk of serious consequences. Id. at 778.
Accordingly, the emergency care statute applied in Turner because the physician responded to the sudden onset of acute symptoms that could reasonably have been expected to result in serious consequences to the patient. Thus, even though the physician did not initially recognize that the situation was an emergency (and arguably considered the patient stabilized), his actions fell under the realm of the statute and he could be held liable only for willful and wanton conduct.

A case litigated in 2009 in the Southern District of Texas construed the same emergency care statute and came to a different conclusion, holding a doctor did not provide “emergency medical care” when he did not perceive a patient's condition as an emergency. Guzman v. Memorial Hermann Hospital System, 2009 WL 780889 (S.D.Tex., March 23, 2009). The Guzman court articulated that Texas' emergency care statute was intended to offer protection from liability “for decisions made and actions taken during sudden emergency situations with no time for deliberation and no time to learn about the patient's history.” Guzman, supra at *8. Additionally, it stated that the “willful and wanton” standard ceases to apply after the treatment of an emergency condition has stabilized the patient. The court further commented that if a physician takes actions to treat an emergency condition, a factual issue may arise as to whether and when the patient was stabilized, at which time the “willful and wanton” standard becomes inapplicable.

When Does 'Stabilization' Occur?

In the states that provide immunity until a patient is “stabilized,” it is largely unclear at what point stabilization occurs. Specifically, if a patient presents with a condition that cannot be adequately addressed at that facility, he or she will need to be transferred to a different medical provider. There is a lack of case law interpreting how long the immunity defense lasts in the setting of a patient who needs to be transferred to another facility. It is unclear whether the care rendered in the intermediate time between presentation to the emergency room and the actual transfer falls under the emergency medical care statute or qualifies as care “after the patient is stabilized,” and is thus subject to the regular standard-of-care analysis.

Applying the Statutes to the Real World

Obtaining a transfer requires several communications between facilities and between physicians. Typically, this begins with a phone call from the current medical facility to a nearby facility that has the capability to address the patient's particular situation. A patient cannot be transferred until the second facility has both space available for the patient and a physician available who has the ability to treat the patient. If either of these requirements is lacking, the second facility will decline the transfer. If the second facility has space available, the physicians at the current facility and at the new one must communicate to ascertain whether the potential physician is capable of treating the patient. This communication may require several phone calls and can take time.

Until the patient is accepted for transfer, that patient will have to wait at the current facility for an unidentified duration. It is cases such as these that most frequently give rise to questions about the applicability of emergency care statutes.

In cases requiring transfers, it is entirely unclear how the appellate courts will interpret the statutes. The answer appears to be a fact-specific analysis. On the one hand, it is possible that a court will conclude that the heightened burden of proof applies to all care rendered between a patient's presentation to the emergency room and the time of transfer, consistent with Turner decision. Alternatively, if a court follows the approach taken in Guzman, it might conclude that the duration between the patient's presentation and transfer is sufficient for a physician to obtain the patient's history and “stabilize” the patient.

In either situation, the lack of authority on the duration of immunity under emergency care statutes and the lack of clear definitions regarding when a patient is stabilized result in litigation over the applicability of the statutes themselves, increasing litigation costs and in turn, increasing the cost of liability insurance. Until the law pertaining to such statutes develops ' through legislative clarification or extensive interpretation by the courts ' it seems unlikely that the statutes will be effective in achieving their intent; that is, to decrease the costs associated with health care liability insurance and increase accessibility to medical care.

Angela Forstie is an associate with Carlock, Copeland & Stair, LLP in Atlanta, where she concentrates her practice on medical malpractice defense, legal malpractice defense, and commercial litigation.