EXECUTIVE SUMMARY

Plaintiff attorneys cannot recover against individual EPs under EMTALA, but some still threaten to in an attempt to coerce the defense to settle the claim. Some considerations:

  • Fines are not covered by medical malpractice insurance, but defense costs may be.
  • EMTALA claims directed against individual EPs generally can be dismissed quickly and easily.
  • EMTALA claims are easier and less costly for plaintiff attorneys than negligence claims.

Plaintiffs are not entitled legally to win on a claim against any individual EP under the Emergency Medical Treatment and Labor Act (EMTALA). Surprisingly, this doesn’t stop some attorneys from threatening to file these claims.

“Most of the time I’ve seen it, it’s been either a mistake or an attempt to obtain leverage in an attempt to coerce the defense into settling,” says Andy Walker, MD, FAAEM, a Signal Mountain, TN-based EP who offers legal consultation on the defense of EPs.

No Cause of Action

Federal courts have ruled consistently that EMTALA is not a malpractice statute. “Negligence has nothing to do with EMTALA,” Walker explains. “Unless the ED is treating people differently based on their financial resources and insurance, EMTALA has nothing to do with it.”

Some plaintiff attorneys file an EMTALA suit anyway, just to intimidate the defense. “You need a defense attorney who understands that filing an EMTALA claim is usually groundless and that it’s just a legal maneuver, and responds appropriately,” Walker says. “It’s almost always an empty threat.”

Even if EMTALA was violated, there is no cause of action for a civil suit against the EP. “A lot of EPs don’t realize that,” Walker notes. “All they realize is that they can be fined up to $50,000 for a single EMTALA violation, which isn’t covered by their malpractice insurance.”

There are two common allegations: that the patient should have been admitted, but was improperly discharged from the ED, or that the patient was subjected to an inadequate medical screening exam. “I’ve even seen cases where the patient was admitted to the hospital, something bad happens after discharge, and the plaintiff attorney alleges an EMTALA violation — even though the patient was admitted to the hospital,” Walker recalls.

Some plaintiff attorneys who add an EP to an EMTALA lawsuit are confusing an inadequate screening exam with negligence. If an EP sends a chest pain patient home who later dies of a heart attack, Walker says, “it may or may not be negligent — but it’s certainly not an EMTALA violation.”

Quick, Easy Dismissal

William M. McDonnell, MD, JD, medical director of the ED at Children’s Hospital & Medical Center in Omaha, NE, says EMTALA claims directed against individual EPs generally are dismissed quickly and easily.

However, says McDonnell, “plaintiff’s attorneys often will add a claim against the hospital under EMTALA to their malpractice claim, or even preferentially seek to characterize their malpractice claim as an EMTALA claim.” The amount of the personal injury award likely will not be greater under EMTALA than under negligence principles. However, there are certain advantages for the plaintiff.

“EMTALA claims are easier — and less expensive — for plaintiff attorneys to bring,” McDonnell says. EMTALA claims generally avoid the pre-trial barriers that many states have enacted for malpractice claims, such as pre-litigation review panels.

“Additionally, EMTALA claims are easier for plaintiffs to win,” McDonnell adds. In malpractice cases, the plaintiff must prove that the defendant EP acted “unreasonably,” and that a reasonable EP under the same or similar circumstances would not have acted, or failed to act, in the same manner as the defendant. “This generally necessitates expensive expert witnesses testifying for the plaintiff,” McDonnell says.

Under EMTALA, the burden of proof is much easier for the plaintiff to meet. “EMTALA is essentially a strict liability statute,” McDonnell explains. “The plaintiff simply needs to prove the underlying facts.”

The plaintiff would need to show only that the patient came to the hospital, that a request was made for care, and that a medical screening exam was not provided. It is unnecessary for the plaintiff to compare the defendant’s actions to a “reasonableness” standard.

“There is generally no need for the plaintiff to find an expert witness to testify about what a reasonable provider would have done,” McDonnell adds.

SOURCES

  • William M. McDonnell, MD, JD, Medical Director, Emergency Department, Children’s Hospital & Medical Center, Omaha, NE. Phone: (402) 955-5142. Email: wmcdonnell@ChildrensOmaha.org.
  • Andy Walker, MD, FAAEM, Signal Mountain, TN. Email: awalkermd@comcast.net.