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Coping with the Aftermath of Emergency Room Chao

EMTALA presents an interesting and potentially effective tool for attorneys representing those who are underserved medically.

The author, an attorney and medical doctor, is a partner with Goldsmith Ctorides & Rodriguez in Englewood Cliffs.

The management of the emergency patient has and continues to be a problem for both the hospital and patient. Inner city patients have turned to the emergency room as a source of primary care treatment. Approximately 10 percent of New Jersey's population has no health care insurance coverage either because their employers do not provide health insurance or they are unable to afford the expense. Under such circumstances the emergency room may become inundated with patients needing minimal care, as it is the only facility at which the patient knows he or she will be cared for.

At the same time those patients with true emergencies maybe overlooked or mismanaged in the ensuing chaos. At times hospitals with emergency rooms may also find themselves ill-prepared to handle the specific problem presented. When a mass disaster strikes, a hospital that can routinely manage five patients an hour may receive 50 patients and not only need the resources of many members of the staff but also assistance from the surrounding community as well.

Due to the large numbers of individuals using the emergency rooms, and the fact that many of these individuals have no insurance, hospitals are presented with a major problem. The cost of operating an emergency room is high and a great deal of free care must be provided. There is a tendency to want to reduce costs, which has resulted in transfers and removal of patients without proper preparation, including some who may be pregnant and in labor.

Quite apart from the inappropriate and improper transfer of patients, hospital emergency rooms also are the sources of a disproportionate share of medical centers' malpractice exposure. Cases involving failure to diagnose appendicitis, myocardial infarctions, ectopic pregnancies and fractures are frequent occurrences. These cases all have a common thread: There may be a failure to take a sufficient history, a failure to perform appropriate testing or a misreading of an electrocardiogram or X-ray. The patient is sent away without treatment for the offending condition which then results in a complication caused by a delay in diagnosis. The appendix may rupture. The ectopic pregnancy may rupture. The patient may die of an undiagnosed heart attack or the fracture may deteriorate.

Reluctant Healers

Hospitals often are presented with problems that they are not capable of managing or do not wish to manage. Herein lies the genesis of the Emergency Medical Treatment and Active Labor Act of 1986, 42 U.S.C.A. Sec. 1395dd (EMTALA). Any hospital with an emergency room and receiving funds through Medicare is required to provide some care to every patient entering through the emergency room regardless of the ability to pay. The realistic concern was that some hospitals would attempt to avoid this obligation. The cost of treatment through the emergency room is substantially higher than in other facilities, such as an outpatient clinic or a private office. Hospitals were expected to transfer patients who could not pay or might present an increased burden on hospital facilities. Those most at-risk were the pregnant patient in labor and those with acute injuries.

It was not meant that a hospital could not transfer such individuals if there was appropriate preparation or reason. What was to be prevented was the dumping of the unwanted emergency patient.

An "emergency medical condition" is by definition a:
[medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonable to expected to result in

(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,

(ii) serious impairment of bodily functions, or

(iii) serious dysfunction of any bodily organ or part [end indent]

The act places certain requirements on the hospital and makes the hospital responsible for the acts of the physicians whether or not they are independent contractors. However, the act applies to hospitals and not private physicians so that under the law the individual physician and nurse cannot be made defendants in subsequent litigation.

The fact that the hospital is the exclusive defendant under EMTALA raises some interesting issues. In a state such as New York a hospital is responsible for the acts of its physicians and there is no limit on a hospital's liability. Therefore, if there were a problem in the emergency room the attorney need not name the physician. This rule is just the opposite of our practice in New Jersey. As the hospital has a limited liability -- to avoid the limitation in damages -- the individual physician and individual nurses will be named and sued separately.

Consider this hypothetical. A patient who is pregnant and in labor is seen in the emergency room. The evaluation is limited and the patient is transported to a second hospital for the purposes of delivery. During transport the child is born and due to that fact suffers severe and permanent injuries.

First, there would be no reason why the individual physician and nurses could not be sued in state court for malpractice. The grounds would be a failure to properly examine and stabilize the patient. Failing to diagnose the fact that the patient was near delivery and that there would be a high likelihood that the child would be delivered during the course of transport. The defense would be that the physician used his/her judgment in evaluating the patient before transfer and had made the determination that transfer was appropriate, necessary and would accomplish the best results for mother and child.

Second, the standards for an action under EMTALA would be different. It would therefore be theoretically possible to bring two separate actions relating to the same incident at the same time in two separate courts.

The standard under EMTALA "requires proof of a non-medical reason or an improper motive for a hospital's treatment or discharge decision before a plaintiff can recover. ..."

In the above example, if in addition to failing to properly evaluate the mother while in labor the transfer occurred because she had no insurance then a suit under EMTALA might well be appropriate.

The cases clearly indicate that EMTALA is not meant to be a federal statute for medical malpractice. However, situations have arisen indicating that the courts are looking to see that all individuals with similar complaints are treated similarly. In one case an individual with popping noises in his chest was not given a chest X-ray. The hospital indicated that a chest X-ray would be a normal part of the screening process for an individual with such complaints. Therefore, the hospital violated its own appropriate standards and the patient was treated differently. Therefore this patient would have a right to sue under EMTALA.

If the same complaint were worded differently then the hospital and its physician would be liable for a failure to properly diagnose and treat a patient with complaints of popping in his chest. In other words this would represent the typical malpractice action. In this situation one could sue the emergency physician and staff without ever suing the hospital. Considering that there would be two separate causes of action two suits could therefore be brought at the same time.

Measure of Damages

The first question to be asked would be that of relevant damages. In all probability the damages associated with the Superior Court malpractice action would be the same as those alleged in the federal court EMTALA action. For example, if a patient having chest pain was not properly worked up and was improperly transferred then the end result might mean that the patient suffered the ill effects of a myocardial infarction. The damages in both actions would be the same. However, if there was a question of an ability to prove liability then both actions could be brought. If the plaintiff were unsuccessful in the Superior Court action the plaintiff could recover in the federal court action and vice versa. However, if the plaintiff were successful in the Superior Court action the question of damages would then arise. The probability is that whichever courts were presented with the issue they would look at the method by which prior settlements would affect the current settlement. There may well be a set off for the damages achieved in the prior action.

A second issue would be the limitations on damages in the actions that can be brought against hospitals in New Jersey. Under our charitable immunity statute hospitals have a limited liability of $250,000. The Districts Courts that have reviewed this issue in other jurisdictions have been split. Depending on their review and interpretation of relevant state law the courts have both followed and ignored the individual state's malpractice limitation.

New Jersey will create multiple situations in which EMTALA maybe applicable. It is a small state but with many major regional medical centers. In addition, there is developing a pattern of relationships between New Jersey Hospitals and major medical centers in New York and Pennsylvania. These relationships have been entered into to transform the local hospitals into feeding hospitals for the major medical facilities.

Patients routinely are transferred to tertiary facilities for complex procedures. Consideration should be given as to whether the transfers were carried out appropriately, whether there may have been an ulterior motive for the transfer and whether the patient suffered any injury en route or upon arrival at the new institution.

The author, an attorney and medical doctor, is a partner with Goldsmith Ctorides & Rodriguez in Englewood Cliffs.


Copyright 1997 New Jersey Law Journal. Reprinted with permission.


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