June 2002 Bulletin

EMTALA and physician liability under state law

A square peg in a round hole

By Robert E. Wanerman, JD, MPH

The line that distinguishes the Emergency Medical Treatment and Active Labor Act (EMTALA) from medical malpractice or negligence concepts is sometimes blurry in practice for many physicians who provide call coverage for hospital emergency departments. In any given emergency department encounter, it is possible to violate EMTALA without any malpractice liability and vice versa.

One example of the confusion that surrounds EMTALA is the scope of available remedies whenever a violation of that statute’s obligations occurs. Some litigants are eager to bring their case before a federal court for perceived strategic reasons. However, federal courts have consistently ruled that EMTALA is not a federal malpractice statute, and have dismissed actions brought by individuals under that law that only allege an injury rather than some specific harm attributable to a failure to screen for or stabilize an emergency medical condition.

Louisiana Case

This raises the question of whether or not there are alternatives available under state laws that would permit a separate cause of action against a physician for a failure to adhere to the mandates of EMTALA. In a recent decision, the Supreme Court of Louisiana found that it did not (Coleman v. Deno 2002 La. LEXIS 142 (La. 2002)).

The case before the Supreme Court of Louisiana involved a patient who sought treatment at Jo Ellen Smith Hospital in New Orleans for pain and swelling in his left arm. He was examined by an emergency room physician, who concluded that the patient had cellulitis and required intravenous antibiotics. The emergency room physician decided to transfer the patient to Charity Hospital of New Orleans, a state-operated facility.

The emergency room physician stated that his decision was based on the availability of a better on-site laboratory at the latter hospital; and that it had experience treating cellulitis, especially among suspected intravenous drug users. No antibiotics were administered at that time, and the emergency room physician believed that the patient was stable for discharge. The physicians at Charity Hospital admitted the patient and started intravenous antibiotics.

On the second day after admission, the patient was examined by a general surgeon and a consulting orthopaedic surgeon, who confirmed that the patient’s arm was infected with alpha- and beta-streptococcus as well as peptostreptococcus, and had developed necrotizing fascitis as a result of the cellulitis. The arm was amputated the same day. He subsequently sued the physicians at Smith Hospital for malpractice and for violating EMTALA. There were no allegations made under a Louisiana statute prohibiting hospitals or staff physicians from denying emergency services to individuals.

The trial court dismissed the EMTALA claim on the ground that the federal law did not authorize a private cause of action against individual physicians for alleged violations. Even though Congress created several remedies for violations of EMTALA’s requirements, only one is available to individuals: a patient who is injured as a direct result of a hospital’s failure to adhere to the statute’s obligations may have a cause of action against the hospital under the law of the state where the hospital is located. Accordingly, the trial court ruled that there was no ground for a private remedy involving an individual physician.

The Louisiana Court of Appeals, the intermediate appellate court, disagreed with this finding and concluded that under state law the plaintiff could allege an injury resulting from an improper transfer. Moreover, the court stated that this claim was independent of state malpractice law and thus not subject to any cap on damage awards. It then reallocated the jury’s award of malpractice damages to compensate the patient for the improper transfer.

The Louisiana Supreme Court reversed the Court of Appeals. It analyzed the state malpractice act and EMTALA, and concluded that the lower court had erred by taking a claim based on allegations of an improper diagnosis or a failure to stabilize and recasting it as an improper transfer. The state Supreme Court gave two reasons for its finding. First, it found that the issue of any intentional harm was never presented to the jury. Second, after confirming that neither federal nor state law provides for a private cause of action against a physician for an allegation of patient dumping, the Supreme Court ruled that the lower court had incorrectly characterized the decision to transfer the patient as distinct from the underlying duties of care and professional skill that are elements of malpractice.

Instead, it reasoned that under state law, the intentional tort of "patient dumping" as described by the Court of Appeals was too intertwined with the medical malpractice law to permit it stand as a distinct allegation. Accordingly, it held that the dumping claim was subsumed within the scope of the state malpractice law and subject to its liability limits. It further observed that to the extent that the attending physician may have known of the patient’s ability to pay for the services provided, this did not provide a basis for analyzing the physician’s conduct outside of the state malpractice law.

Ruling provides some guidance

The Louisiana state Supreme Court’s holding in Coleman should provide some guidance in future cases involving attempts to create a remedy under state law to supplement the remedies Congress wrote into EMTALA. In addition, it should make it easier to argue in future cases that although EMTALA and malpractice concepts can overlap, both the elements of any successful claim and the available remedies remain distinct.

Nevertheless, because this decision was based on a narrow fact pattern, it may be possible that under a slightly different set of facts a court could conclude that a decision to treat or transfer could trigger an analysis under state law that would be distinct from both the federal EMTALA law as well as state malpractice law. As a result, a careful review of emergency department treatment and transfer policies would be a worthwhile step in minimizing EMTALA risks.

Robert Wanerman is counsel at Reed Smith LLP, Washington, D.C. He can be reached at (202) 414-9242 or via e-mail rwanerman@reedsmith.com.

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