Plaintiffs Strive to Twist EMTALA Into a Federal Malpractice Act?

By Robert A. Bitterman, MD, JD, FACEP, Contributing Editor, ED Legal Letter

Plaintiff attorneys continue efforts to turn ordinary "failure to diagnose" malpractice claims into claims for "failure to provide an appropriate medical screening exam" under federal law, the Emergency Medical Treatment and Labor Act – EMTALA.

The Case of Macamaux v. Day Kimball Hospital1

In Macamaux, the Connecticut district court had to decide "whether this was a case of misdiagnosis based upon an appropriate screening examination or a case of failure to provide an appropriate screening examination" under EMTALA.1


Mr. Macamaux presented to the Day Kimball Hospital emergency department (ED) via EMS after a motor vehicle accident (MVA). He arrived in a cervical collar on a back board due to a complaint of neck and back pain. The triage nurse assessed him and listed complaints of neck pain, back pain, and pain between the shoulders. The emergency physician documented a chief complaint of "upper back pain" and did not document the presence or absence of neck pain. The physician later testified that the patient never complained of neck pain, but the physician did order trauma cervical spine X-rays with a chest X-ray (CXR).1

There was no radiologist in the hospital (it was just after 5 p.m. on a Monday) so hospital policy called for the emergency physician to initially read the X-rays and a radiologist to review the X-rays "subsequently."1 After reviewing the images, the emergency physician reassessed Mr. Macamaux and determined that he had scapular pain, but no neck pain or tenderness (which was not documented in the record). However, he then ordered a repeat CXR and repeat lateral cervical spine film, allegedly because of the poor quality of the initial set of X-rays, along with an X-ray of the left scapula.1

The emergency physician interpreted the second set of X-rays to be negative and discharged the patient "Home with son — stable" on a diagnosis of "MVA — back strain."1

The next day, the hospital's radiologist reported that the C-7 vertebral body was, due to difficulty penetrating the shoulders, "not well seen" on the first X-ray and "is not included" on the second X-ray. The radiologist recommended that the patient follow-up with his physician, and these findings were reported to the ED. However, the radiologist's concern, for unknown reasons, was not communicated in a timely manner to Mr. Macamaux. The hospital did mail him a letter 5 days after his visit to the ED, but 2 days before it was sent, due to neck pain, arm pain, and difficulty breathing, he presented to the ED of a Rhode Island hospital where a CT scan revealed multiple cervical spine fractures and significant dislocation at the level of C7–T1.1

Mr. Macamaux's end result post surgery was not favorable, so he sued the emergency physician for negligence and sued the hospital pursuant to EMTALA for "failure to provide an appropriate medical screening exam," and for "failure to stabilize" his fractures and dislocation.1

The Court's Opinion on the "Failure to Screen Claim"

When a person comes to the ED requesting examination or treatment, a hospital is required by EMTALA to:

"provide for an appropriate medical screening examination within the capability of the hospital's emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition . . . exists."2

The term, "appropriate medical screening examination," is not defined in the statute.3 However, the courts have consistently held that this screening requirement is not a substitute for state law on medical malpractice4 and was "not intended to guarantee proper diagnosis or to provide a federal remedy for misdiagnosis or medical negligence."5

Instead, EMTALA requires hospitals to provide uniform or non-discriminatory screening examinations, consistent with their own policies and based on the hospital's available resources and capabilities.6,7 Consequently, the courts allow EMTALA "failure to screen claims" when a hospital does not follow its own standard policies and procedures, best summed up by the judge in Gatewood v. Washington Health Care Corporation, "any departure from standard screening procedures constitutes inappropriate screening in violation of the EMTALA."8

Plaintiff attorneys have latched onto these court declarations in an effort to file EMTALA claims for "failure to provide an appropriate medical screening examination" instead of suing providers under ordinary state malpractice law. They are highly motivated to do so for a host of reasons: sue hospitals, not physicians; get at the hospital's "deep pocket"; end run state tort reform on such things as expert witness requirements, affidavits of merit, and statutes of limitation; gain access to peer review documents (the federal rules of evidence do not recognize state peer review protections); and the big prize — attempt to circumvent state damages caps on non-economic damages.

In California, a federal court recently held that the state's famed MICRA, it's malpractice reform and damages cap law, does not apply to federal "failure to screen claims" under EMTALA, thus the state's $250,000 cap on non-economic damages is inapplicable.9 The plaintiff lawyers in California are consequently scrambling to recast every ordinary "failure to diagnose" claim against EDs as a "failure to screen" claim so as to avoid the state cap.

The effort to recast malpractice claims into federal EMTALA claims is so pervasive in Puerto Rico that even judges comment on the practice in their formal written opinions.10 The reason is straightforward: in Puerto Rico, there are no jury trials in civil malpractice cases, unless the claim is heard in federal court.10

In light of this background, Day Kimball Hospital asked the court to dismiss Mr. Macamaux's failure to screen claim under EMTALA, claiming that it followed its usual screening process in examining and treating Mr. Macamaux in its ED.1

The plaintiffs counter argued that Day Kimball had a "Diagnostic Services Manual Policy" regarding the images that must be taken when cervical spine trauma X-rays are ordered. The policy listed a number of steps that "must be performed" that included a requirement that the "C7-T1 junction must be clearly visualized."11

The policy also further stated that if these X-rays are ordered when a radiologist is not on duty, as was the case here, the images will be brought to the emergency physician to review and the "emergency physician will notify the technologist whether or not the patient needs any additional films." The court noted it was uncontested that none of the X-rays received and reviewed by the physician permitted him to see and evaluate the C7 vertebrae or the C7-T1 junction.11

Day Kimball argued that the imaging policy applied to the radiology department, not the ED, and that it provides instructions to the radiology technicians for producing the images, not to the interpretation by the emergency physicians. The court, however, said that Day Kimball cited no authority that EMTALA liability may be founded only on a failure to follow policies directed specifically at the ED.1

In fact, EMTALA expressly imposes a duty and a corresponding liability upon hospitals, not specifically upon emergency departments: "the hospital must provide an appropriate medical screening examination within the capability of the hospital's emergency department, including ancillary services routinely available to the emergency department. . ."2 And radiology/cervical spine imaging is certainly an ancillary service routinely available to the ED, so the court had no problem ruling that the hospital could be liable for failing to provide an appropriate screening exam regardless of whether the failure was attributed directly to the ED or to an ancillary service, such as radiology, that was working in conjunction with the ED to screen patients.1

The court then poignantly stated in a footnote, "It bears noting that, under the circumstances of this case, it fell to the emergency department doctor to read the insufficient X-rays."1

Below are some thoughts/suggestions to deal with this issue:

• Radiologists should provide proper service to the 120 million patients seen in our nation's emergency departments every year to avoid the long-known frequency of adverse patient outcomes and subsequent litigation due to non-contemporaneous interpretations by radiologists;

• Every single imaging study done in an ED, 24/7 and 365 days per year, should be interpreted in real time, before the patient leaves the ED, by an appropriately trained and skilled radiology specialist.

• Payment Ramifications: (1) The federal government should mandate it be done for Medicare/Medicaid patients and pay for absolutely nothing less;12 (2) hospital boards and CEOs should require such in the contract with their radiology group, or for any radiology group that seeks to bid on the hospital's business; and (3) the hospital's primary insurance carrier or reinsurer should mandate the practice or refuse to cover the hospital and physicians for liability related to missed findings that occur as the result of not providing real-time contemporaneous interpretations. Sometimes, physicians must be forced to do the right thing for patients, and taking their money or voiding their liability coverage is probably the mechanism most likely to succeed.

In the end, the court held that the radiology policy could reflect Day Kimball's expectations for its ED screening practice, and that a jury could "reasonably infer that, if Day Kimball insists that an X-ray 'MUST' show the C7-T1 junction, this is because the standard screening procedure for cervical spine trauma involves consideration of such an image."1

Therefore, the court said that the policy prevented it from deciding, as a matter of law, whether "this is a case of misdiagnosis based upon an appropriate screening examination or a case of failure to provide an appropriate screening examination."1 Thus, the case will go to the jury for it to decide whether an appropriate EMTALA medical screening examination was done for Mr. Macamaux.

The Court's Opinion on the "Failure to Stabilize" Claim

The court easily dispatched the plaintiff's EMTALA failure to stabilize claim against the hospital.1 It is settled law that the hospital must fist determine that the patient has an emergency medical condition (EMC) — have "actual knowledge" that an EMC exists.13

Here, it was clear that the emergency physician diagnosed contusions/strains — non-emergency conditions — and did not diagnose fractures/dislocations or any other injury that needed immediate stabilizing treatment. Nonetheless, the plaintiffs alleged that the hospital and physician were well aware of the potential severity of Mr. Macamaux's injuries and, if not, they "should have known." The court was steadfast, agreeing with accepted appellate law that suspicion of an EMC, the "potential" for an emergency condition, considering an emergency condition in the differential diagnosis, or even that the physician "should have known" the emergency condition existed are all insufficient for the EMTALA claim — they simply don't constitute "actual knowledge" that the emergency condition exists.1

The Case of Hale v. Northeastern Vermont Regional Hospital (NVRH)14

In Hale v. NVRH, a 35-year-old woman presented to the ED with neck pain radiating to her temples and back. She was diagnosed with torticollis and discharged. Three days later, she returned complaining of bad head pain, neck pain, and back pain and was examined by the same emergency physician, who, this time, did a head CT scan and a lumbar puncture (LP). The results were suspicious for a subarachnoid hemorrhage (SAH), so the patient was transferred to a tertiary center that diagnosed a cerebral artery aneurysm. During an attempted coiling procedure, the aneurysm ruptured, leaving Ms. Hale neurologically devastated.14

The patient's family sued, claiming the hospital failed to provide an "appropriate medical screening examination" on the initial ED visit by failing to perform the CT and LP at that time.

(For the sake of discussion, ignore whether the standard of care indicated that a CT or LP be done then, and whether the initial visit played any role in the causation of the patient's injuries — causation being a necessary element to prove a malpractice or EMTALA claim for damages — as the patient almost certainly would have had the coiling procedure irrespective of whether the leaking aneurysm was diagnosed three days sooner.)

The court in Hale agreed with the Macamaux court that negligence alone is insufficient to support a claim for inappropriate screening under EMTALA, but it, too, stated that "departure from standard screening procedures constitutes inappropriate screening in violation of EMTALA."15 Twice previously, in 2003 and 2004, Ms. Hale had presented to the NVRH ED complaining of headache, neck, and back pain, and both times an LP was performed. Thus, the court concluded that "a jury could reasonably infer that NVRH's standard screening includes performing an LP when a patient presents with head pain."14

More incredulously still, the court pointed to the fact that the hospital didn't have a "written LP policy," and couldn't produce "any evidence explaining its LP policy," which could lead to the jury's "reasonable conclusion."14 Couldn't this bizarre uninformed logic have been dispelled by the hospital producing a zillion ED headache cases that did NOT get an LP? (Yes, the hospital will get its chance at trial, but it shouldn't be a trial issue.) Does any hospital in the United States have a written policy on the use of a lumbar puncture in the performance of EMTALA-mandated medical screening examinations? Why can't courts grasp the fact that physician judgment is the determining factor on when an LP (or, for that matter, any other invasive or noninvasive diagnostic study) is indicated under the particular circumstances of each individual case? The very nature of human biology and the practice of medicine dictate that there can be no "standard policy" on performing "screening" LPs.

Additionally, the plaintiffs asserted that when Ms. Hale presented to the ED in 2003 and 2004, and the LP was done, she was covered by insurance, whereas in 2006, she was not insured. The court stated that this assertion further supported an inference of disparate treatment (seemingly ignoring the fact that when Ms. Hale returned three days later and did get the CT/LP, she was still uninsured).14

Based on these issues, the court concluded that there was a question of fact as to whether or not NVRH performed a screening examination that conformed to its standard screening procedures. Furthermore, exactly as the Macamaux court stated, this court opined, "the question is whether this is a case of misdiagnosis based upon an appropriate screening examination or a case of failure to provide an appropriate screening examination under EMTALA."14

Final Comment

The real issue is whether the courts will respect the intent of Congress, which did not intend to supplant state law medical malpractice liability with a federal malpractice standard of care. EMTALA was designed solely to prevent the specific injury of patient "dumping," for which state law typically did not redress.16 As federal appellate courts have stated, "the avowed purpose of EMTALA was not to guarantee that all patients are properly diagnosed, or even to ensure that they receive adequate care,"17 but rather it was intended as "a federal law that provided a remedy for emergency care patients where state malpractice provisions fell short."18

Lessons Learned

• Define your hospital's "appropriate" medical screening policy in terms of the law (i.e., a non-discriminatory approach to evaluating patients' complaints) and do not define your screening policy and procedures in terms of the medical "standard of care."

• Specifically state in your medical screening policy that all diagnostic testing or consultation with on-call specialists is discretionary, based on the judgment of the examining physician, and that no tests whatsoever are included as part of the hospital's "standard medical screening policy."

• Review the policies and procedures of other hospital departments that routinely interact with the ED, such as radiology, to ensure that those departments don't burden or bury the ED with respect to EMTALA compliance and litigation.

• Blind triage, nursing, and emergency physicians to the patient's insurance status until after the MSE and initiation of stabilizing treatment — it voids the argument that certain diagnostic tests were not done because the patient was uninsured.

• Document your medical decision-making when you don't take actions, such as CT/LP, that would normally be "considered," or when you don't follow an expected pathway or "guidelines."

• Always read and address triage, nursing, and EMS notes before the patient is discharged.

• Document the presence or absence of an EMC on all ED patients, so that it will never be a "question of fact" for a jury as to whether the emergency physician had "actual knowledge" that an emergency condition existed. (Place two boxes at the bottom of every ED chart: EMC Identified or No EMC Identified.)

• Advocate for accountable "radiology reform," which serves patients, not doctors.


1. Macamaux v. Day Kimball Hospital, Case No. 3:09-cv-164, 2011 WL 4352007, (D. Conn. Sept. 16, 2011).

2. 42 USC § 1395dd(a).

3. 42 USC § 1395dd.

4. Eg., Hardy v. NYC Health & Hosp. Corp., 164 F3d 789 (2d Cir. 1999), and Gatewood v. Washington HC Corp., 933 F2d 1037 (D.C. Cir. 1991).

5. Macamaux v. Day Kimball Hospital, quoting Power v. Arlington Hosp. Ass'n, 42 F3d 851 (4th Cir. 1994).

6. E.g., Marshall v. East Carroll Parish Hosp., 134 F.3d 319, 323 (5th Cir. 1998). ("Most of the courts have defined 'appropriate medical screening examination' as a screening examination that the hospital would have offered to any other patient in a similar condition with similar symptoms.")

7. See also, Brooks v. Maryland Gen. Hosp. Inc., 966 F.2d 708, 710-11 (4th Cir. 1993) (Under EMTALA, "the hospital must apply its standard of screening uniformly to all emergency room patients, regardless of whether they are insured or can pay." (emphasis in original).

8. Gatewood v. Washington HC Corp., 933 F2d 1037 (D.C. Cir. 1991). See also, Repp v. Anadarko Mun. Hosp., 43 F.3d 519 (10th Cir. 1994). ("A hospital violates EMTALA when it does not follow its own standard procedures.")

9. Romar v. Fresno Comm. Hosp. et al., 2008 U.S. Dist. LEXIS 85080 (E.D.Cal. Oct. 10, 2008).

10. Cruz-Vasquez v. Mennonite Gen. Hosp. Inc., et al., Case 3:08-cv-01236, (D. PR. Sept. 20, 2011).

11. Macamaux v. Day Kimball Hospital, citing the Day Kimball Policy No. DI: Trauma Procedure.

12. There exists presently a 'contemporaneous' interpretation requirement for payment of reading imaging studies in the CMS regulations, but CMS refuses to enforce it and instead counts the reading done a day or two after the ED visit as 'contemporaneous' enough to warrant payment. Emergency physicians should bill for interpretations they provide in real-time; unfortunately, the politics or power positioning in most hospitals is still such that, contractually, radiologists are allowed to bill and the emergency physicians prohibited from doing so.

13. See, e.g., Toretti v. Main Line Hosps., Inc., 580 F.3d 168 (3d Cir. 2009) (noting stabilization claim requires the hospital "actually knew" of the emergency medical condition); Bryant v. Adventist HS West, 289 F.3d 1162 (9th Cir. 2002) ("A hospital has a duty to stabilize only those medical conditions that its staff detects."); and Holcomb v. Monohan, 30 F.3d 116 (11th Cir. 1994) ("To succeed on an EMTALA stabilization claim, a plaintiff must present evidence that . . . the hospital knew of the emergency medical condition.")

14. Hale v. Northeastern Vt. Reg'l Hosp., Inc., No. 1:08-cv-82-jgm (D. Vt. Sept. 30, 2011).

15. Hale v. NE Vt. Reg'l Hosp, citing Gatewood v. Washington HC Corp., 933 F2d 1037 (D.C. Cir. 1991).

16. Reynolds v. Maine General Health, 218 F.3d 78 (1st Cir. 2000).

17. Baber v. Hosp. Corp. of America, 977 F.2d 872, (4th Cir. 1992).

18. Correa v. Hospital San Francisco, 69 F.3d 1184, (1st Cir. 1995).