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The Tension between the Affordable Care Act and EMTALA and its Potential Legal Implications
Date: June 1st, 2015    Written by Daniel E. Shapiro


I. Introduction

Even 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. [1]   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. [2]  

The Emergency Mandate Treatment and Active Labor Act (EMTALA) was enacted by Congress in 1986. [3]   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. [4]   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. [5]   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. [6]   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. [7]

II.  Hospital and Physician Liability Under EMTALA 

An 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 treatment. [8] 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.

Since 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. [9]   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.

Under EMTALA, hospitals and both treating and on-call physicians face federal fines of up to $50,000 per violation. [10]   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. [11]   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.” [12]

While 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. [13]   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. [14]

As 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. [15]    Courts have repeatedly cautioned: "EMTALA is not a federal medical malpractice statute.” [16]   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. 

The 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. [17] 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.   

III. Early 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. [18]   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. 

An 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. [19]   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. [20]   Strikingly, 77% of the physicians polled think that their facilities are not sufficiently prepared to handle the influx they anticipate. [21]   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 findings. [22]

The 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. [23]   The impact that this shortage will have on emergency rooms is potentially devastating.

In 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. [24] 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. [25]   The national average is 272 minutes. [26]   Given these figures, it is not surprising that patients have died while awaiting treatment in ER waiting rooms in New York. [27]   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. [28]   The state’s expressed goal is ambitious.  It intends to achieve a 25% reduction over this period.

Regarding 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. [29]   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. [30] 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. [31]   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. [32]   

IV.   Public Policy v. Strict Interpretation of EMTALA’s Provisions

The 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 looms overhead.

In 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. [33]   EMTALA contains a whistleblower provision which provides that:

A participating hospital may not penalize or take adverse action [1] 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 [2] against any hospital employee because the employee reports a violation of a requirement of this section. [34]

Even 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. [35]    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. [36]   Notwithstanding, the Court did note that patient "hoarding” could ultimately lead to the type of patient dumping that EMTALA was enacted to prevent. [37] 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 one.” [38] 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 appear foreseeable. [39]  Evidently, the Court did not adopt this public policy argument.

As 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 effective legislation. 

[1] 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. 

[2] The ACA generally requires people living in the United States to obtain health insurance or pay a tax penalty called a "shared responsibility payment.” 26 U.S.C. § 5000A and 26 C.F.R. § 1.5000A-1.

[3] 42 U.S.C. § 1395dd.

[4] Office of the Inspector Gen., Dep’t. of Health & Human Servs., The Emergency Medical Treatment and Labor Act: Patient Dumping Archive, available at https://oig.hhs.gov/fraud/enforcement/cmp/patient_dumping.asp.

[5] 42 U.S.C. § 1395dd(a) requires hospital emergency department to provide for an "appropriate medical screening examination” to determine whether an "emergency" medical condition exists. 42 U.S.C. § 1395dd(e)(3)(A) defines "stabilize” as "provid[ing] such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility, or, with respect to an emergency medical condition described in paragraph (1)(B), to deliver (including the placenta).”

[6] 42 U.S.C. § 1395dd(b)(1)(B).

[7] Because EMTALA applies to all Medicare-participating hospitals with emergency departments and because hospitals are dependent on Medicare reimbursement payments and subsidies as a income source, the laws mandate has a global application. 

[8] Although commentators continue to debate whether this surge in ED usage is primarily attributable to EMTALA or is multi-factorial--attributable to hospital closures, increased population, hospital implementation of cost cutting measures, etc.-- since the law’s enactment, emergency department use has surged from 85 million visits per year to almost 140 million visits per year.  See Laura D. Hermer, The Scapegoat: EMTALA and Emergency Department Overcrowding, 14 J.L. & Poly 695 (2006); see also Center for Disease Control, Dep’t of Health & Human Servs., Emergency Dep’t. Visits Archive, available at http://www.cdc.gov/nchs/fastats/emergency-department.htm; Cindy Mann, Centers For Medicare and Medicaid Services, Informational Bulletin: Reducing Nonurgent Use of Emergency Departments and Improving Appropriate Care in Appropriate Settings,  available at http://www.medicaid.gov/Federal-Policy-Guidance/Downloads/CIB-01-16-14.pdf; Lynne D. Richardson, et. al., Emergency Department Crowding as a Health Policy Issue: Past Development, Future Directions, 40 Ann. Emergency Med. 388, 388-93 (2002).

[9] 42 U.S.C. § 1395dd(b)(1)(B).

[10] 42 U.S.C. § 1395dd(d).

[11] It is generally settled that plaintiffs may prosecute EMTALA claims against the hospital for damages they sustained, but several courts have held that EMTALA does not create a private cause of action against individual physicians. See e.g. Eberhardt v. Los Angeles, 62 F.3d 1253, 1256 (9th Cir. 1995), King v. Ahrens, 16 F.3d 265, 271 (8th Cir. 1994); Delaney v. Cade, 986 F.2d 387, 393-94 (10th Cir. 1993); Baber v. Hospital Corporation of America, 977 F.2d 872, 876-878 (4th Cir. 1992); Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1040 n.1 (D.C. Cir. 1991); Fisher by Fisher v. New York Health & Hosps. Corp., 989 F. Supp. 444 (E.D.N.Y. 1998).

[12] 42 U.S.C. §1395dd(d)(2)(A).

[13] See e.g. Cox v. Cabell Huntington Hosp., Inc., 2012 WL 685870, No. 3:11-0843 (S.D. W.V. Mar. 2, 2012)(plaintiff permitted to file an EMTALA claim despite failing to provide the state law required notice of claim to healthcare providers and/or a verification of merit to the court as required under state law); Godwin v. Memorial Medical Center, 25 P.3d 273, 281-282 (N.M. App. 2001)(Court held that New Mexico's 90-day notice-of-claim requirement for tort claims was preempted by EMTALA's two-year statute of limitations with respect to EMTALA causes of action.); Jackson v. East Bay Hospital, 980 F. Supp. 1341, 1348-1350 (N.D. Cal. 1997) (state’s damage cap for malpractice claim did not apply to EMTALA claim); Cooper v. Gulf Breeze Hospital, Inc., 839 F. Supp. 1538, 1541-1543 (N.D. Fla. 1993)(same); Bird v. Pioneers Hosp., 121 F.Supp.2d 1321 (D.C. Colo. 2000) (Colorado’s notice statute does not apply to EMTALA claims).

[14] Both the Centers for Medicare & Medicaid Services (CMS) and the Office of the Inspector General (OIG) have administrative enforcement powers with regard to EMTALA violations. There is a 2-year statute of limitations for civil enforcement of any violation.   See American College of Emergency Physicians, News Media, EMTALA, available at http://www.acep.org/News-Media-top-banner/EMTALA/.

[15] See e.g. Eberhardt v. City of Los Angeles, 62 F.3d 1253 (9th Cir.1995); Repp v. Anadarko Municipal Hosp., 43 F.3d 519 (10th Cir.1994); Holcomb v. Monahan, 30 F.3d 116 (11th Cir.1994).

[16] Repp v. Anadarko Municipal Hospital, 43 F.3d 519, 522 (10th Cir. 1994); Power v. Arlington Hospital Ass’n, 42 F.3d 851, 856 (4th Cir. 1994); Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1039 (D.C. Cir. 1991);  Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266, 271-72 (6th Cir. 1990); Brenord v. Catholic Med. Ctr. of Brooklyn & Queens, Inc., 133 F. Supp. 2d 179, 185 (E.D.N.Y. 2001).

[17] See e.g. 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).

[18] Brandy 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.

[19] American College of Emergency Physicians, 2014 ACEP Polling Survey Results (April 2014), available at http://newsroom.acep.org/ACEP-Emergency-Visits-Up-Since-Implementation-of-ACA; see also Brett Logiurato, Doctors Think Emergency Room Visits Are Going To Explode Under Obamacare, Business Insider, at http://www.businessinsider.com/obamacare-emergency-room-visits-study-2014-5#ixzz3TXQr5bfn (May 22, 2014).

[20] Id. at http://newsroom.acep.org/ACEP-Emergency-Visits-Up-Since-Implementation-of-ACA.

[21] Id.

[22] American 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.

[23] Association of American Medical Colleges, Physician Supply and Demand Through 2025: Key Findings (March 2015), available at https://www.aamc.org/download/153160/data/physician_shortages_to_worsen_without_increases_in_residency_tr.pdf.

[24] American College of Emergency Physicians, America’s Emergency Care Environment: A State-by-State Report Card (2014 Ed.), available at http://www.emreportcard.org/uploadedFiles/EMReportCard2014.pdf.

[25] Id.

[26] Id.

[27] In June 2008 a woman died on the floor of the psychiatric emergency room at Kings County Hospital Center after waiting for more than 24 hours for treatment.  See Sewell Chan, City to Pay $2 Million in Death After Hospital Wait, The New York Times, at http://www.nytimes.com/2009/05/28/nyregion/28settle.html (May 27, 2009).  In January 2014, a 30 year old man was found dead in the waiting room of Saint Barnabas Hospital in the Bronx eight hours after he arrived to the ER complaining of a rash.  See Rich Schapiro, Man, 30, found dead after 8-hour wait in Bronx Emergency Room For Rash, New York Daily News, at http://www.nydailynews.com/new-york/bronx/man-30-dies-8-hour-wait-bronx-emergency-room-article-1.1591629 (Jan. 26, 2014). 

[28] New York State Dep’t of Health, Redesigning New York’s Medicaid Program: Delivery System Reform Incentive Payment (DSRIP) Program, available at https://www.health.ny.gov/health_care/medicaid/redesign/dsrip/.

[29] Sarah L. Taubman et al., Medicaid Increases Emergency Department Use: Evidence from Oregon's Health Insurance Experiment, 343 Science 263 (2014).

[30] Id. at 265.

[31] Alexander T. Janke, et. al., Access to Care Issues and the Role of EDs in the Wake of the Affordable Care Act, 33 Am. j. Emerg. med. 181, 181-185 (2015)

[32] American College of Emergency Physicians, Newsroom, The Uninsured: Access to Medical Care Fact Sheet, available at http://newsroom.acep.org/index.php?s=20301&item=30032#footnote_ix (Jan. 4, 2009). 

[33] Genova v. Banner Health, 734 F.3d 1095 (10th Cir. 2013).

[34] 42 U.S.C. §1395dd(i)

[35] Genova, 734 F.3d at 1103. 

[36] Id. at 1098 - 1101.

[37] Id. at 1098.

[38] Id. at 1099.

[39] Brief of Amicus Curiae American Academy of Emergency Medicine in Support of Appellant, Genova v. Banner Health, 734 F.3d 1095 (10th Cir. 2013) (NO. 12-1314), available at http://www.aaem.org/UserFiles/Genovaamicuscuriaefiling.pdf.

Daniel Shapiro is partner with Jaspan Schlesinger LLP located in Garden City, New York and is a member of the firm’s litigation and appellate practice groups.  Mr. Shapiro represents both private and corporate clients, which include physician owned professional corporations, provider and management service organizations.  

Reprinted with permission from: Health Law Journal, Spring/Summer 2015, Vol. 20, No. 2, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.

 

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