Mid-Atlantic Health Law TOPICS

A version of this article was published in The Daily Record on March 4, 2014.

Concern that hospitals would turn away uninsured patients from their emergency rooms led Congress, in 1986, to pass the Emergency Medical Treatment and Active Labor Act (EMTALA), which is a federal anti-patient dumping law.

While Maryland hospitals have always been subject to EMTALA, little attention has been paid to EMTALA, because, unlike the rest of the country, the rates Maryland hospitals are paid by paying patients have been set high enough by Maryland's unique hospital rate setting commission to cover the cost of treating the uninsured, resulting in little or no patient dumping.

However, the recent changes in Maryland's hospital payment system, discussed elsewhere in this issue of TOPICS, will cap hospital revenue, and, therefore, potentially lead to patient dumping. Accordingly, for the first time in decades, Maryland hospitals will now have to pay closer attention to the requirements of EMTALA.
Specifically, EMTALA mandates that, for all hospitals participating in Medicare, the hospital?s emergency department must screen and stabilize every individual who comes to the hospital with an emergency medical condition, regardless of the individual?s ability to pay. Unpacking the terms used in the previous sentence is essential to understanding how EMTALA works.

A. Coming to the Hospital

EMTALA only imposes a duty on hospitals for individuals that "come to" the hospital. The federal agency responsible for administering EMTALA has said that what counts as coming to the hospital includes (1) being present anywhere on the hospital campus; or (2) being in an ambulance en route to the hospital.

Courts and the applicable federal agency have struggled to identify what counts as "coming to" the hospital beyond those two situations. One court has, for instance, said that EMTALA was not violated when a physician called a hospital to report a patient's medical condition, and the hospital instructed the physician not to bring the patient to the hospital.

B. Emergency Medical Condition

An "emergency medical condition" includes any condition that, in the absence of immediate medical attention, could reasonably be expected to result in death or disability.

It includes women in labor who cannot be transferred safely to another hospital before delivery. It also includes the presence of acute symptoms without any readily apparent etiology, such as-in one prominent case-acute bronchospasms with skin discoloration.

C. Screening

To "screen" means to use the normal resources of the emergency department to discover whether the individual is suffering from an emergency medical condition.

Courts have generally held that EMTALA does not require a hospital actually to discover a patient?s illness, but only requires a hospital to perform its ordinary screening procedures, so that a hospital is not liable under EMTALA if the screening did not meet the standard of care, and, therefore, missed a patient's illness. A hospital must, however, use its normal ancillary services, such as clinical laboratory services or imaging services, to attempt to diagnose a patient with discernible symptoms.

D. Stabilizing

What "stabilize" means is not well defined by EMTALA itself. Courts have generally interpreted hospitals' stabilization duty to include only the use of the normal resources of the hospital to prevent further immediate deterioration of a patient?s health. That is, a hospital must bring the patient to a condition that makes it safe to discharge the patient or transfer the patient to another facility.

In this regard, it is irrelevant whether the hospital has cured the patient's disease or even whether the patient's disease is curable. For instance, one court has held that a hospital may discharge a patient with severe pneumonia after administering a dose of antibiotics to the patient. The hospital was not required to admit the patient until the pneumonia passed.

And in another famous case - Baby K - the federal appeals court with jurisdiction over Maryland ruled that a hospital had a duty to provide mechanical breathing assistance to a child who was permanently unconscious and subject to intermittent respiratory distress due to a congenital defect which left her without a significant portion of her brain. The court held that it was irrelevant that the patient needed frequent readmissions, that stabilization would only be temporary, or that the patient would never recover from her condition.

E. Exceptions

EMTALA does not impose screening or stabilization duties on hospitals in three exceptional situations.

First, if a patient is in an ambulance en route to a hospital, but the hospital emergency department is full or otherwise does not have the resources to handle the patient?s condition, then the hospital may divert the patient.

Second, a hospital need not screen or stabilize a patient who refuses treatment or a medically appropriate transfer, so long as the hospital informs the patient of the risks of refusing.

Third, a hospital that has screened a patient but is unable to "stabilize" the patient within its own resources may transfer the patient to another hospital upon certification by a physician that the medical benefits of the transfer would likely outweigh the risks of the transfer. For instance, if a patient requires the use of specialized equipment possessed by another hospital, a physician may certify that a transfer is necessary.

F. Enforcement

Both public agencies and private individuals enforce EMTALA.

The federal government may impose a civil penalty on hospitals of up to $50,000 per violation of EMTALA. A physician may also be liable for the same penalty if the physician negligently certifies that a transfer of the patient is medically appropriate.

Private persons may sue a hospital for any personal injury suffered as a direct result of the hospital?s violation of EMTALA. Any suit under EMTALA must be brought within two years of the alleged violation. An individual may recover any damages that Maryland would ordinarily permit in similar personal injury lawsuits.

G. Conclusion

Until recently, Maryland's hospital rate-setting system made EMTALA less relevant in Maryland than elsewhere. The cost-per-case component rewarded an increasing volume of cases, and the all-payor component placed the burden of uncompensated care on payors rather than solely on hospitals. However, as Maryland shifts its rate-setting system to disincentivize admissions, and hospitals are rewarded for keeping patients out of the hospital, the limitations imposed by EMTALA may become more and more relevant.