Plaintiffs may push cases alleging EMTALA violations

Plaintiffs' attorneys soon may use the discharge of homeless patients to push the boundaries of the Emergency Medical Treatment and Labor Act (EMTALA), cautions John Wagner, JD, an attorney with Nossaman Guthner in San Francisco. While the definition of stabilization largely has been a medical decision, he says the issue of homeless patients may change that definition.

"I think we're going to see some cases in which plaintiffs' attorneys argue that the patient isn't really stabilized within the meaning of EMTALA until the follow-up is done and the stitches are removed or the follow-up X-rays are taken," Wagner says. "Everyone leaves the emergency department with a form saying what you need to do after you leave, and if it's clear that the patient has no means to follow up, attorneys are going to argue that they weren't really stable when they left your facility."

Attorneys likely will argue that merely telling the patient what to do after discharge is insufficient and that you must ensure it is possible for the patient to follow those instructions, he says. But wouldn't that mean that homeless patients would never meet the definition of stable for EMTALA and be eligible for discharge?

"I think some plaintiffs will argue that position, and obviously there can be bigger motive behind that in terms of changing how homeless people are treated," Wagner says. "One of the next waves of EMTALA litigation is going to be what stabilization means when there are no supporting resources."

Leila Narvid, JD, an attorney with Sideman & Bancroft in San Francisco, is skeptical about whether plaintiffs could be successful with such an argument. She says EMTALA is fairly clear about what stabilization means and says it would be difficult for an attorney to argue that it includes follow-up care. For instance, if a patient presents with malignant cancer and obviously needs follow-up care in the near future, there still is no EMTALA issue, she says.

"As long as there is no emergency condition, the facility could still refuse treatment, even though you need follow-up therapy," she says. "I'd see the issue in the same way if a homeless patient clearly needs follow-up care after you have stabilized and provided care. As long as there is no emergency medical condition, EMTALA does not apply."

However, Narvid notes that there is nothing to stop states from enacting laws that are stricter in this regard than EMTALA. That could be a bigger risk than plaintiffs stretching the definition of stabilization, she says.

"I think as long as you have made the good-faith effort to find a shelter for this person, you're in the clear as far as EMTALA is concerned," Narvid says. "Once that person is stabilized, your EMTALA obligation ends. A hospital would be well advised to go beyond that, but not because of EMTALA."

Sources

For more information on EMTALA issues and homeless patients, contact:

  • John Wagner, JD, Nossaman Guthner Knox & Elliott, 50 California St., 34th Floor, San Francisco, CA 94111. Telephone: (415) 398-3600. E-mail: jwagner@nossaman.com.