A homeless man presented to an ED twice in 18 hours, complaining of severe pain, and died of a ruptured ulcer a few hours after the second discharge.1

The family sued for malpractice, and the plaintiff attorney also alleged an Emergency Medical Treatment and Labor Act (EMTALA) violation. A jury awarded the plaintiff $25,000 in compensatory damages and $1.45 million in punitive damages.

The plaintiff alleged that the hospital failed to stabilize the patient as required by EMTALA. The decedent’s family brought suit against the hospital, along with several EPs and ED nurses.

“EMTALA permits the recovery of damages obtainable for personal injury under the forum state’s law. In some states, adding an EMTALA claim can make a lot of sense,” explains Timothy C. Gutwald, JD, a healthcare attorney in the Grand Rapids, MI, office of Miller Johnson.

In this case, the recovery of punitive damages in connection with the EMTALA claim was governed by Kentucky law. The patient’s consistent complaints of severe pain and return trips to the ED were key factors in both the malpractice and EMTALA claims. “It appears that the plaintiffs had a strong malpractice claim,” Gutwald notes.

The Kentucky Court of Appeals noted that under EMTALA, a plaintiff may “obtain damages available for personal injury under the law of the state in which the hospital is located.”

Including an EMTALA claim doesn’t usually lead to bigger awards than would be obtained in a regular malpractice case, Gutwald notes. “But it does seem that the jury and court of appeals were particularly appalled by what happened here,” he says. “I think the EMTALA violations were a key factor in the jury’s punitive damages award.”

Gutwald adds, “Anytime a plaintiff attorney sees only a cursory screening exam, or no screening exam at all, it makes sense for him or her to think about adding an EMTALA violation.” The same is true if it appears as though the patient wasn’t stabilized prior to transfer or discharge. A jury may view those actions as patient dumping.

“As the large punitive damage award shows, juries strongly disapprove of any attempt to dump a difficult patient,” Gutwald concludes. “This is particularly true if the patient is part of a vulnerable population.”


  1. St. Joseph Healthcare, Inc. v. Thomas, S.W.3d, 2016 Ky. LEXIS 179 (Ky. May 5, 2016).


  • Timothy C. Gutwald, JD, Miller Johnson, Grand Rapids, MI. Phone: (616) 831-1727. Fax: (616) 988-1727. Email: gutwaldt@millerjohnson.com.