Strict Liability of Hospitals Under EMTALA

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Phil Puccio

In 1986, Congress passed the Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 USCS § 395dd, mandating treatment for any person presenting to an emergency department, regardless of their insurance status or ability to pay. This is commonly referred to as the “anti-dumping” law. Although EMTALA is a federal regulation, hospitals and other healthcare facilities are subject to civil liability for violations of EMTALA. Therefore, it is important that hospitals implement and enforce appropriate policies and procedures to ensure compliance.

What does EMTALA need?

EMTALA applies when a person presents to an emergency room with an emergency. An emergency condition is defined as “a medical condition manifested by acute symptoms of sufficient severity (including severe pain)” that could reasonably be expected to (i) seriously endanger health, (ii) seriously impair bodily function, (iii) or serious dysfunction of any body organ. 42 USCS § 395dd(e)(1).

If an emergency department under EMTALA determines that the person has an emergency, the hospital must either provide treatment to stabilize the person’s medical condition or transfer the person to another medical facility. With respect to transfers, a person with an unstabilized medical emergency may not be transferred unless:

  • The individual request for referral to another medical facility.
  • A doctor has signed a certificate stating that the medical benefits expected from treatment at another facility outweigh the increased risk to the individual.
  • The transfer will be made to an entity that has available space and qualified personnel and has accepted the transfer.

If the person refuses further medical treatment or does not agree to a transfer, the hospital has met the requirements of EMTALA only if The hospital informed the individual of the risks and benefits and took reasonable steps to obtain written informed consent. It is imperative that hospitals maintain adequate records of consent to avoid liability.

Which healthcare providers are subject to EMTALA?

EMTALA applies to hospitals with emergency departments that participate in Medicare, hospital-owned third-party emergency care facilities, and physicians who provide services in those facilities, including on-call physicians.

Civil Actions under EMTALA:

In addition to state fines for violating EMTALA, an individual may bring a civil lawsuit against participating hospitals under the laws of the state where the hospital is located. This allows plaintiffs to obtain personal injury damages as well as equitable relief. It should be noted that another medical facility may also bring a civil action against a Participating Hospital for financial loss incurred as a direct result of the Participating Hospital’s refusal of treatment or improper transfer. The statute of limitations for both actions is two years from the date of the EMTALA violation.

As recognized by the Nebraska Supreme Court in Gestring vs. Mary Lanning Mem’l Hosp. Ass’n, 259 Neb. 905, 613 NW2d 440 (2000), a hospital’s liability under EMTALA is not based on tort. Rather, “It is based on the violation by the hospital of a federal statute, resulting in the hospital strictly liable for any personal damage resulting directly from that injury.” string, 259 Neb. at 920, 613 NW2d at 452 (emphasis added). This allows a plaintiff to essentially recover under two separate and distinct theories – one arising from the Malpractice Act and the General Principles of Negligence, and the other arising from a breach of EMTALA. ID.

Because a hospital is strictly liable for violations of EMTALA, the plaintiff only needs to show that the hospital failed to follow the precise legal requirements and such failure resulted in injury. This allows a plaintiff to defend himself against a hospital despite not being able to prove medical malpractice.

Tips to ensure compliance with EMTALA:

Given the risks of litigation and fines for violating EMTALA, participating hospitals should take reasonable steps to ensure their emergency departments meet the requirements of EMTALA. Here are some examples of steps hospitals can take to maintain compliance:

  • Implement consistent patient screening guidelines
  • Do not delay patient screening while assessing patient ability to pay
  • Document efforts to educate patients about the risks and benefits of treatment or transfer to another healthcare facility
  • Document all cases of patients refusing treatment or transfer and ask patients to sign written informed consent forms
  • Educate emergency department staff and providers about EMTALA

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