Medical Malpractice Claim or EMTALA Violation?

When a patient enters a hospital emergency room, there is always the possibility that he will be unsatisfied with the care he receives, justifiably or not. The patient might then bring a state-law medical malpractice action, but he might also seek to recover damages for violation of the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. ' 1395dd.

EMTALA was enacted to prevent the practice of “patient dumping,” where an emergency medical facility refuses to treat a patient, generally because he is unlikely to be able to pay for services rendered. It provides that when a patient presents at a covered hospital with an emergent condition (as defined by ' 1395dd(e)(1)), the facility must adequately screen him to evaluate his condition (' 1395dd(a)) and transfer him to a more appropriate place for treatment or discharge him only after properly stabilizing his condition
(' 1395dd(b)).

An EMTALA cause of action will not succeed if the gravamen of the plaintiff's claim is simply that the diagnosis or treatment rendered were substandard ' such complaints must be brought as medical malpractice actions. There must be proof of something more, and a failure to screen adequately is one such thing. But what constitutes an “adequate” screening, and how can a plaintiff show that the screening he or she received fell short?

First Circuit Interprets Screening Requirement

The U.S. Court of Appeals for the First Circuit recently vacated a decision terminating a woman's EMTALA case against the hospital whose emergency room evaluated her condition. Cruz-Vazquez v. Mennonite General Hospital Inc., 2013 U.S. App. LEXIS 10790 (1st Cir. 5/29/13). The plaintiff had gone to defendant Mennonite General Hospital while in her third trimester of pregnancy because she was experiencing vaginal discharge and spotting, though without any accompanying pain. The on-duty emergency physician gave the woman a pelvic examination, which showed she was not dilated. The doctor phoned her obstetrician, who recommended that the patient be given medication and discharged, and that she be instructed to contact his office the following morning. These instructions were carried out, and the patient's medical record was notated as follows: “discharge condition stable.” The following day, the woman's obstetrician diagnosed her with pre-eclampsia and performed an emergency C-section on her. Her baby girl was born alive, but soon died.

At the time the plaintiff was seen at the emergency room, the hospital had in place a protocol for treating women with third-trimester bleeding, which required that several laboratory tests and examinations be performed. The hospital conceded that this protocol was in place and that the tests required under it were not performed in the plaintiff's case.

The plaintiff brought suit in the U.S. District Court for the District of Puerto Rico alleging that she arrived at the hospital with an emergency medical condition as defined by
EMTALA (42 U.S.C. Section 1395dd(e)(1); that the hospital failed to screen her appropriately, as required by 42 U.S.C. Section 1395dd(a); and that the hospital failed to stabilize or properly transfer her before releasing her from its emergency room, in violation of 42 U.S.C. Section 1395dd(b).

After several permutations in the proceedings, the district court summarily dismissed the plaintiff's EMTALA claims, finding that the emergency room doctor's decision not to perform additional tests on the plaintiff was not the same as the a denial of screening or egregious delay in screening identified by the First Circuit in Correa v. Hosp. San Francisco, 69 F.3d 1184 (1st Cir. 1995), as supporting an EMTALA claim. The district court then relied on a Fourth Circuit case (Vickers v. Nash Gen. Hosp., 78 F.3d 139 (4th Cri. 1996)) to determine that the plaintiff's complaint stated a claim for a “faulty” screening, not for a “disparate” one; therefore, it concluded that the plaintiff's claim was one for medical malpractice, not for violation of EMTALA.

Inappropriate Screening?

On appeal, the First Circuit observed that although EMTALA itself does not define what an appropriate medical screening consists of, the court had issued its own decision on that point in 1995, in Correa. There, it defined a participating hospital's duty under
EMTALA as providing an examination “reasonably calculated to identify critical medical conditions that may be afflicting symptomatic patients and provides that level of screening uniformly to all those who present substantially similar complaints. The essence of this requirement is that there be some screening procedure, and that it be administered even-handedly.” Correa, 69 F.3d at 1192 (emphasis added).

Here, the hospital had instituted a standard procedure for women in the third trimester of pregnancy who are experiencing bleeding. Could they ignore that protocol without running afoul of the uniformity requirements of EMTALA, as set out in Correa? The appellate court turned for guidance to case law on the subject, in the First Circuit as well as in sister circuits.

In 2005, the First Circuit held in Cruz-Queipo v. Hosp. Espanol Auxilio Mutuo de P.R., 417 F.3d 67 (1st Cir. 2005), that, generally, when a hospital determines that a protocol for screening certain types of patients is advisable, those internal protocols set the parameters for what will be considered an appropriate screening. Thus, if some patients are screened using the internal screening protocol and yet others are not, this circumstance may support a finding of EMTALA violation through disparate treatment of a patient.

The Fifth and Eighth circuits have come to similar conclusions. See Battle v. Memorial Hosp., 228 F.3d 554, 558 (5th Cir. 2000) (“Evidence that a hospital did not follow its own screening procedures can support a finding of EMTALA liability for disparate treatment.”); Summers v. Baptist Medical Ctr. Arkadelphia, 91 F.3d 1132, 1138 (8th Cir. 1996) (“Patients are entitled under EMTALA ' to be treated as other similarly situated patients are treated, within the hospital's capabilities. It is up to the hospital itself to determine what its screening procedures will be. Having done so, it must apply them alike to all patients.”).

In these jurisdictions, an allegation of disparate treatment may be supported by a hospital's failure to follow its own internal screening protocols. However, this evidence alone did not entitle the plaintiff here to summary judgment. The First Circuit pointed out that there may be other reasons that a doctor could justifiably decline to follow the steps dictated by a hospital's protocols; for example, a particular patient might have a separate condition that precludes giving her a certain kind of examination that is normally required. As the record in the case before it had not been developed on this issue, the court declined to grant summary judgment to plaintiff Cruz-V'zquez, instead remanding for further proceedings.

Conclusion

Although the First Circuit Court of Appeals allowed that there might be some circumstances under which a physician could be justified in not following hospital protocols with a particular patient, it also offered a cautionary note, stating: “While a treating obstetrician's medical judgment may inform whether or not a patient was sufficiently 'like' other patients that come under a given hospital protocol, it should not be improperly relied on to entirely bypass the hospital's obligation to equally screen under the statute.”

The takeaway is that courts are likely to turn a jaundiced eye to a hospital's decision to bypass its own emergency-room screening protocols. It will not matter that the reason for deviating from them had nothing to do with saving the hospital money; what will matter is that the patient received disparate treatment. So there had better be a very good reason ' preferably one that is well documented in the patient's file ' for that disparity, or a successful EMTALA action may result.

Janice G. Inman is Editor-in-Chief of this newsletter.

'

'

When a patient enters a hospital emergency room, there is always the possibility that he will be unsatisfied with the care he receives, justifiably or not. The patient might then bring a state-law medical malpractice action, but he might also seek to recover damages for violation of the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. ' 1395dd.

EMTALA was enacted to prevent the practice of “patient dumping,” where an emergency medical facility refuses to treat a patient, generally because he is unlikely to be able to pay for services rendered. It provides that when a patient presents at a covered hospital with an emergent condition (as defined by ' 1395dd(e)(1)), the facility must adequately screen him to evaluate his condition (' 1395dd(a)) and transfer him to a more appropriate place for treatment or discharge him only after properly stabilizing his condition
(' 1395dd(b)).

An EMTALA cause of action will not succeed if the gravamen of the plaintiff's claim is simply that the diagnosis or treatment rendered were substandard ' such complaints must be brought as medical malpractice actions. There must be proof of something more, and a failure to screen adequately is one such thing. But what constitutes an “adequate” screening, and how can a plaintiff show that the screening he or she received fell short?

First Circuit Interprets Screening Requirement

The U.S. Court of Appeals for the First Circuit recently vacated a decision terminating a woman's EMTALA case against the hospital whose emergency room evaluated her condition. Cruz-Vazquez v. Mennonite General Hospital Inc., 2013 U.S. App. LEXIS 10790 (1st Cir. 5/29/13). The plaintiff had gone to defendant Mennonite General Hospital while in her third trimester of pregnancy because she was experiencing vaginal discharge and spotting, though without any accompanying pain. The on-duty emergency physician gave the woman a pelvic examination, which showed she was not dilated. The doctor phoned her obstetrician, who recommended that the patient be given medication and discharged, and that she be instructed to contact his office the following morning. These instructions were carried out, and the patient's medical record was notated as follows: “discharge condition stable.” The following day, the woman's obstetrician diagnosed her with pre-eclampsia and performed an emergency C-section on her. Her baby girl was born alive, but soon died.

At the time the plaintiff was seen at the emergency room, the hospital had in place a protocol for treating women with third-trimester bleeding, which required that several laboratory tests and examinations be performed. The hospital conceded that this protocol was in place and that the tests required under it were not performed in the plaintiff's case.

The plaintiff brought suit in the U.S. District Court for the District of Puerto Rico alleging that she arrived at the hospital with an emergency medical condition as defined by
EMTALA (42 U.S.C. Section 1395dd(e)(1); that the hospital failed to screen her appropriately, as required by 42 U.S.C. Section 1395dd(a); and that the hospital failed to stabilize or properly transfer her before releasing her from its emergency room, in violation of 42 U.S.C. Section 1395dd(b).

After several permutations in the proceedings, the district court summarily dismissed the plaintiff's EMTALA claims, finding that the emergency room doctor's decision not to perform additional tests on the plaintiff was not the same as the a denial of screening or egregious delay in screening identified by the First Circuit in Correa v. Hosp. San Francisco , 69 F.3d 1184 (1st Cir. 1995), as supporting an EMTALA claim. The district court then relied on a Fourth Circuit case ( Vickers v. Nash Gen. Hosp. , 78 F.3d 139 (4th Cri. 1996)) to determine that the plaintiff's complaint stated a claim for a “faulty” screening, not for a “disparate” one; therefore, it concluded that the plaintiff's claim was one for medical malpractice, not for violation of EMTALA.

Inappropriate Screening?

On appeal, the First Circuit observed that although EMTALA itself does not define what an appropriate medical screening consists of, the court had issued its own decision on that point in 1995, in Correa. There, it defined a participating hospital's duty under
EMTALA as providing an examination “reasonably calculated to identify critical medical conditions that may be afflicting symptomatic patients and provides that level of screening uniformly to all those who present substantially similar complaints. The essence of this requirement is that there be some screening procedure, and that it be administered even-handedly.” Correa, 69 F.3d at 1192 (emphasis added).

Here, the hospital had instituted a standard procedure for women in the third trimester of pregnancy who are experiencing bleeding. Could they ignore that protocol without running afoul of the uniformity requirements of EMTALA, as set out in Correa? The appellate court turned for guidance to case law on the subject, in the First Circuit as well as in sister circuits.

In 2005, the First Circuit held in Cruz-Queipo v. Hosp. Espanol Auxilio Mutuo de P.R. , 417 F.3d 67 (1st Cir. 2005), that, generally, when a hospital determines that a protocol for screening certain types of patients is advisable, those internal protocols set the parameters for what will be considered an appropriate screening. Thus, if some patients are screened using the internal screening protocol and yet others are not, this circumstance may support a finding of EMTALA violation through disparate treatment of a patient.

The Fifth and Eighth circuits have come to similar conclusions. See Battle v. Memorial Hosp. , 228 F.3d 554, 558 (5th Cir. 2000) (“Evidence that a hospital did not follow its own screening procedures can support a finding of EMTALA liability for disparate treatment.”); Summers v. Baptist Medical Ctr. Arkadelphia , 91 F.3d 1132, 1138 (8th Cir. 1996) (“Patients are entitled under EMTALA ' to be treated as other similarly situated patients are treated, within the hospital's capabilities. It is up to the hospital itself to determine what its screening procedures will be. Having done so, it must apply them alike to all patients.”).

In these jurisdictions, an allegation of disparate treatment may be supported by a hospital's failure to follow its own internal screening protocols. However, this evidence alone did not entitle the plaintiff here to summary judgment. The First Circuit pointed out that there may be other reasons that a doctor could justifiably decline to follow the steps dictated by a hospital's protocols; for example, a particular patient might have a separate condition that precludes giving her a certain kind of examination that is normally required. As the record in the case before it had not been developed on this issue, the court declined to grant summary judgment to plaintiff Cruz-V'zquez, instead remanding for further proceedings.

Conclusion

Although the First Circuit Court of Appeals allowed that there might be some circumstances under which a physician could be justified in not following hospital protocols with a particular patient, it also offered a cautionary note, stating: “While a treating obstetrician's medical judgment may inform whether or not a patient was sufficiently 'like' other patients that come under a given hospital protocol, it should not be improperly relied on to entirely bypass the hospital's obligation to equally screen under the statute.”

The takeaway is that courts are likely to turn a jaundiced eye to a hospital's decision to bypass its own emergency-room screening protocols. It will not matter that the reason for deviating from them had nothing to do with saving the hospital money; what will matter is that the patient received disparate treatment. So there had better be a very good reason ' preferably one that is well documented in the patient's file ' for that disparity, or a successful EMTALA action may result.

Janice G. Inman is Editor-in-Chief of this newsletter.

'

'