Court decides if EMTALA should apply to inpatients

Issue likely to come up again, says Frew

A 2003 Center for Medicare & Medicaid Services (CMS) regulation that interpreted EMTALA not to apply to inpatients does not have the "force and effect of law," according to a recent decision by a U.S. District Court in Puerto Rico.

The court ruled that a mother could continue with her suit alleging that Hospital San Pablo del Este (HSPE) transferred her newborn child without providing stabilizing care while the infant was in a profoundly unstable condition.

The judicial finding that the regulation is only an interpretation has the potential to bring up the issue on appeal in this or other cases, and perhaps ultimately return the Emergency Medical Treatment and Labor Act to the Supreme Court for further clarification, says Stephen A. Frew, JD, a web site publisher and risk management specialist (

The mother gave birth by Caesarean section at the HSPE and the infant originally was taken to the hospital's newborn unit, according to a summary of the case. The child developed emergency conditions, including upper gastrointestinal bleeding, and was vomiting blood, the court opinion stated.

The following day, the physician at HSPE ordered the infant transferred to Hospital Interamericano de Medicina Avanzada, where the child was described on arrival as being "critically ill." Medical records showed that the infant left HSPE "totally unstable &hellilp; with active upper gastrointestinal bleeding," the court noted. The child died two days later.

The hospital moved to dismiss the case on the grounds that under the 2003 CMS regulations, it was not bound by the stabilization and transfer rules of EMTALA because the infant was an inpatient.

The court ruled that the 1998 Lopez-Soto v Jose Hawayek case had held previously that EMTALA did apply in almost identical circumstances, and emphasized that EMTALA's clear language is not limited to hospital emergency departments. The Lopez-Soto case is the only significant court of appeals case to interpret the Supreme Court ruling on EMTALA in the 1999 Roberts v Galen case.

The judge refused to throw out the case because of the CMS interpretation not being binding on the court, and stated that it would not apply in any case because the interpretation was issued after the child's death. The court noted that retroactive applications are not favored by law.

The decision allows the mother to proceed to trial, but she still must prove her allegations and that the conduct did violate EMTALA. Further appeal of the ruling is not likely to be allowed until a final verdict has been rendered in the case, Frew said.

"The original Roberts court clearly felt that EMTALA was not affected by what door the patient entered or what the patient's status in the hospital was, and applied it to an inpatient discharge situation," he notes.

"The interpretation that EMTALA sections are to be read separately is also critical to the building debate over whether the CMS interpretation that 'EMTALA does not apply to inpatients' alters the requirements for hospitals with specialized capabilities to accept transfers under EMTALA," Frew adds.

Specialty units, transfers explained

In other EMTALA-related comments made in answer to a query he received, Frew goes on to emphasize that — despite what some providers assume — whether hospitals have a specialty unit has nothing to do with whether they have to accept EMTALA transfers.

"If you have the specialists or special equipment, you have to accept," he adds. Frew cites a ruling in the St. Anthony v U.S. Department of Health and Human Services case, which states in part, "The Act does not define precisely the term 'specialized capabilities or facilities.' Section 1867(g) provides examples of the types of capabilities or facilities that are considered to be specialized: 'burn units, shock trauma units, neonatal intensive care units, or regional referral centers.' But, it neither states nor suggests that such capabilities or facilities are limited to those examples."

The ruling concludes that Congress did not intend the term "specialized capabilities or facilities" to be interpreted narrowly or limited to the examples stated in the act. Rather, it states, the term is intended to encompass those capabilities and facilities that enable a hospital to offer specialized care that is not offered by hospitals that are less well-endowed.

In response to a question Frew received regarding physicians who maintain that "they are the specialists and will decide when, how, and if a patient will be transferred — not the [sending physician]," he says:

"Wrong again. EMTALA rules state that the responsibility for deciding if, when, where, and how belongs to the sending physician, because he or she is signing the certification." The receiving hospital and its physicians, Frew continues, can turn down a patient if the following conditions apply:

  • The patient is not an EMTALA patient in need of a higher level of care.
  • It is a patient-initiated transfer, rather than a transfer for need.
  • The hospital lacked the capability or capacity to care for the patient.

Even if it turns out the sending physician was wrong, the receiving hospital or physician likely will still be cited for turning down the request, he adds. "The first physician will just get cited for his errors along with you for yours."