The Tension between the Affordable Care Act and EMTALA and its Potential Legal Implications
Date: June 1st, 2015 Written by Daniel E. Shapiro
with the Supreme Court’s rejection of the latest constitutional challenge to
the Patient Protection Affordable Care Act (ACA), it remains apparent that
there are still several politically influential groups that oppose a law that
seeks to create universal access to healthcare for all citizens. However, long before this country began
debating the constitutionality of the ACA and its "individual mandate”-- which
requires individuals to acquire health insurance or else face federal tax
penalties -- emergency departments across the nation have been grappling with
their own mandate.
Emergency Mandate Treatment and Active Labor Act (EMTALA) was enacted by
Congress in 1986. Commonly referred to as the "anti-patient
dumping law,” EMTALA is designed to prevent hospitals from discriminating
against uninsured or Medicaid patients by transferring them to public hospitals
before providing minimal treatment and necessary screening to ensure that they are
stable for transfer. Specifically, the law requires hospitals to:
(1) screen any individual who comes to an emergency room and; (2) treat that
patient until his or her medical condition is resolved or until the patient is stabilized. If the facility is not capable of treating
the condition, it must transfer the patient to another hospital that has the
capacity to treat the patient. Under EMTALA, the qualified receiving
hospital is obligated to accept the transfer.
Thus, at its core, EMTALA guarantees all individuals access to a certain
level of emergency care whether or not they are insured or can otherwise afford
the cost of treatment.
II. Hospital and Physician Liability Under
unintended yet foreseeable consequence of EMTALA’s passage was that indigent or
uninsured patients began flocking to local emergency rooms to seek treatment
for unmet health needs, including those that did not call for emergency
Over time, emergency rooms (especially those serving densely populated urban
areas) were forced to adapt by perfecting their triage procedures as waiting
rooms overflowed with patients who presented with both emergent and
non-emergent medical conditions.
EMTALA expressly dictates that "[a] participating hospital may not delay
provision of an appropriate medical screening examination…in order to inquire about [an] individual’s method of payment or insurance status”, emergency room overcrowding has made hospitals
far more vulnerable to EMTALA-based lawsuits and federal penalties. Hence, while EMTALA literally opened the
doors of the emergency room to any individual who required emergency treatment,
regardless of their financial status, national origin, insurance status and
race, it exposed hospitals to new forms of liability outside the realm of the
standard malpractice and negligence claims they were accustomed to defending.
EMTALA, hospitals and both treating and on-call physicians face federal fines
of up to $50,000 per violation. The law also provides patients with a private
right of action against the hospital (but not physicians) for injuries they sustain
as a result of EMTALA non-compliance. In this regard, EMTALA plaintiffs may "obtain
those damages available for personal injury under the law of the state in which
the hospital is located, and such equitable relief as is appropriate.”
EMTALA does not serve as a replacement for a plaintiff’s state law malpractice
claim, it does serve as vehicle to have the claims heard in federal court and
adjudicated before a federal jury. This
is significant because some federal courts have held that EMTALA preempts procedural
and substantive limitations imposed by state law, sending the message that
plaintiffs may be better served by pursuing EMTALA-based claims in federal
court (where the court may retain supplemental jurisdiction over their state
law-based malpractice claim) rather than proceeding with their cases in state
court. For example, courts have refused
to apply state notice statutes and malpractice damage caps to EMTALA-based
claims. Further, plaintiffs are in a far better
position to leverage a fruitful settlement with hospital defendants that may be
forced to not only reimburse the complainants for their personal injuries, but
also may be subject to onerous fines imposed by the federal government when the
facts of their EMTALA-based noncompliance are fleshed out at trial.
a result of an influx of EMTALA-based cases, federal courts have sought to
narrowly restrict the types of claims that truly fall within the law’s
purview. The Circuit Courts of Appeal routinely
dismiss lawsuits on jurisdictional grounds where plaintiffs have disguised
medical malpractice claims as EMTALA claims in an attempt to obtain EMTALA
based relief. Courts have repeatedly cautioned: "EMTALA is not a federal medical malpractice statute.” Nevertheless,
where the plaintiff’s claims are actually grounded on the emergency
department’s failure to adequately screen and stabilize the patient, the claims
will withstand Federal Rule 12(b)(6) and Rule 56 motions.
success of an EMTALA-based claim generally hinges on whether a plaintiff is
able to prove that he or she was not screened and/or stabilized in a manner
commensurate with his or her medical condition and that the hospital’s failures
resulted in further quantifiable harm.
Naturally, defenses based on emergency room overcrowding, lack of resources,
limited staffing or poor funding are not valid affirmative defenses even though
such impediments are often the cause of the hospital’s EMTALA violation.
Interaction between EMTALA and the ACA
Before the ACA was enacted in
2010, its proponents, including President Barack Obama, argued that with more
people insured, fewer would turn to the emergency room for treatment as their
first line of defense. The idea was that patients would schedule
appointments with their newly assigned primary care physicians or with
in-network specialists who would provide necessary treatment and preventative
care, which would also serve to minimize the likelihood that those patients
would require emergency care later. Such a conclusion seemed logical. However, early studies reveal that the
intended results have yet to materialize.
In fact the current numbers contradict the theories espoused by the ACA
proponents who saw the law as a panacea to emergency room overcrowding.
April 2014 survey conducted by American College of Emergency Physicians (ACEP)
found that 46% of emergency physicians had experienced a rise in patients
presenting to the emergency room since the enactment of the ACA, while 23% reported
a decrease and 27% reported no change. Additionally, 45% of emergency physicians
expect a "slight” influx in emergency room patients over time, while 41% expect
that they will face a far greater increase in the next three years. Strikingly, 77% of the physicians polled
think that their facilities are not sufficiently prepared to handle the influx
they anticipate. Although the figures cited in ACEP’s survey
are by no means conclusive -- as they are entirely based upon the voluntary
online submissions of emergency medicine physicians – the American Hospital
Association (a national non-profit organization that represents nearly 5,000
hospitals, health care systems and network providers) has defended the survey’s
problem of emergency room overcrowding is also compounded by the fact that the
nation’s population continues to grow at an increasing rate. With the demand for physicians on the rise
and the projections revealing that we will face a shortage of primary care
physicians in the future, demand for non-emergency based care is expected to
exceed supply by 2025. The impact that this shortage will have on emergency
rooms is potentially devastating.
New York, the consequences are particularly dire. According to ACEP, New York State has the
highest hospital occupancy rate in the nation, and the fourth fewest emergency
departments per capita.
New York also suffers from the fourth longest average time that patients spend
in the ER (366 minutes) before being transferred to their hospital bed or
discharged. The national average is 272 minutes. Given these figures, it is not surprising
that patients have died while awaiting treatment in ER waiting rooms in New
However, it does bear noting that the
state remains focused on addressing these issues and has implemented a Delivery
System Reform Incentive Payment (DSRIP) program as a preemptive measure.
Through this program, the state has allocated eight billion dollars for
distribution to Medicaid providers over the next five years, with the funds
being tied to projects and reforms focused on reducing avoidable hospital use. The state’s expressed goal is ambitious. It intends to achieve a 25% reduction over
the question of whether more patients who were not previously insured will be
more likely to seek treatment in the emergency room given the ACA’s mandate, a
2013 landmark study performed by the Oregon Health Insurance Experiment proves
illustrative. In short, the study concluded that the expansion
of Medicaid to low-income individuals increased both their visits to primary
care centers and to emergency rooms. The
study reviewed records from 25,000 low income patients, some with Medicaid
access and some without, and determined that those with insurance ended up in
the emergency room with a 40% greater frequency while many of the conditions
that brought them there were deemed non-emergent.
Also, in February 2015, the American Journal of Emergency Medicine published a
related study based on research performed by the Wayne State University School
of Medicine in Detroit, Michigan. This
study found that Americans who receive public insurance under the ACA use the
emergency department more frequently than before they were insured. Although there are many groups in the medical
community that do not subscribe to the theory that emergency room overcrowding
is tied to hospitals still having to provide non-urgent care to Medicaid and
other low income patients in the emergency room, it is difficult to deny that
there exists a relationship between the two.
IV. Public Policy v. Strict
Interpretation of EMTALA’s Provisions
implications of these reports (as they relate to hospital overcrowding and
EMTALA liability) are clear. On the
legal front, hospitals have a multitude of reasons to be concerned as their exposure
to liability will surely be impacted if these trends hold. And based on a recent newsworthy case in
which a court denied whistleblower protections to a physician who complained
that his hospital was not properly screening patients in its overcrowded emergency
room, it appears the judiciary is doing little to help calm the storm that
the Tenth Circuit case titled, Genova v. Banner Health, et. al.,
a doctor plaintiff whose staff privileges at the private hospital where he
worked had been terminated, alleged that he had been retaliated against for
reporting that the hospital was "hoarding” emergency room patients for
financial reasons rather than transferring them to another facility where they
could be treated more expeditiously. EMTALA contains a whistleblower provision
which provides that:
A participating hospital may not
penalize or take adverse action  against a qualified medical person . . . or
a physician because the person or physician refuses to authorize the transfer
of an individual with an emergency medical condition that has not been
stabilized or  against any hospital employee because the employee reports a
violation of a requirement of this section.
though EMTALA bars hospitals from disciplining physicians who refuse to
transfer unstabilized patients suffering from emergency medical conditions, the
Court determined that the doctor’s actions did not qualify for whistleblower
status. The Court strictly interpreted the language
of the statute and held that because the doctor neither claimed that he had
been harmed as a result of an EMTALA violation nor that had he been discharged
for reporting a EMTALA violation arising out of the hospital’s failure to
screen or stabilize a patient or based on its transfer of an unstable patient,
his claims failed as a matter of law. Notwithstanding, the Court did note that
patient "hoarding” could ultimately lead to the type of patient dumping that
EMTALA was enacted to prevent.
But it also reasoned that the law permits a suit only where a plaintiff was
harmed "by or reported an existing
EMTALA violation, not an impending
Parenthetically, the American Academy of Emergency Medicine filed an amicus brief with the Tenth Circuit
on behalf of the plaintiff urging it to protect physicians who voice concerns
related to EMTALA violations, whether they presently exist, are imminent or
Evidently, the Court did not adopt this
public policy argument.
our country enters into a new healthcare age, the problems that we will
assuredly face will run the gamut. One
thing that is clear is that emergency rooms will be forced to navigate new roadblocks
as the mandates set out in EMTALA and the ACA appear to be headed for a
collision course. Absent adequate
government funding, universal emergency department guidelines and a greater
supply of quality physicians, Congress may be forced to take on the healthcare
debate down the road, yet again.
Unfortunately, taking up the debate is far simpler than enacting
The Supreme Court granted cert in the case titled King v. Burwell, 759 F.3d 358 (4th Cir. 2014), cert. granted, No. 14-114, 2014 U.S. LEXIS 7428, at *1 (U.S. Nov. 7, 2014) to resolve the issue of whether the IRS may extend tax subsidies to states that had not set up their own health care exchanges under the ACA. The case raised constitutional issues related state sovereignty and state’s rights. A decision was issued on June 25, 2014 upholding the ACA.
Brooks v. Maryland Gen. Hosp., 996 F.2d 708 (4th Cir. 1993) (patient complaining of acute weakness and
a sudden inability to walk who presented to the emergency room and experienced excessive delays in treatment and evaluation, could assert a
screening claim under EMTALA); Scruggs v. Danville
Regional Medical Center of Virginia, LLC, No. 08-00005, 2008 U.S. Dist.
LEXIS 68630, *10-12 (W.D. Va. Sept. 5, 2008) (denying
motion to dismiss plaintiff’s EMTALA screening claim,
where plaintiff asserted that over eleven and a half hours had elapsed between
the time he presented himself to the emergency room and the time that he was
examined by a doctor); Byrne v. Cleveland Clinic, 684 F. Supp. 2d 641
(E.D. Pa. 2010) (dismissal of plaintiff’s EMTALA claim that it took two hours
after his arrival for an ED physician to attend to his condition denied).
Zadrozny, Obamacare Had a New Problem: It
Won’t Fix Emergency Rooms, The Daily Beast, Jan. 2, 2014, available at http://www.thedailybeast.com/articles/2014/01/02/obamacare-has-a-new-problem-it-won-t-fix-emergency-rooms.html.
Hospital Association, Always there Ready to Care: The 24/7 Role of America’s
Hospitals (March 2015), available at http://www.aha.org/research/policy/2015.shtml.
of American Medical Colleges, Physician Supply and Demand Through 2025: Key
Findings (March 2015), available
Sarah L. Taubman et al., Medicaid Increases Emergency Department Use: Evidence from Oregon's Health Insurance Experiment, 343 Science 263 (2014).
Id. at 265.