Of 215,028 patients seen in EDs for three common conditions (asthma, pneumonia, or COPD) in 2015, 66.5% were discharged from the ED, 32.1% were admitted, and 1.5% were transferred to another hospital, according to the authors of a recent study.1 Compared with privately insured patients, those without insurance were more likely to be both discharged and transferred.

“A more innocuous explanation for this trend is that individuals without insurance or with Medicaid may not have a primary care physician,” offers Timothy C. Gutwald, JD, a healthcare attorney in the Grand Rapids, MI, office of Miller Johnson. With so many patients with non-urgent problems using the ED as a primary care practice, lower admission rates would make sense.

“Others would argue that hospitals want to avoid running up large inpatient bills when Medicaid is the payer or when a patient has no insurance,” Gutwald says. Other cultural and socioeconomic factors also come into play, such as Medicaid and uninsured patients more likely to check in to the hospital to treat avoidable conditions.2 “This is a complicated issue the health system has been attempting to address for decades,” Gutwald notes.

Whatever the case, repeatedly discharging or transferring patients with certain conditions that are more prevalent in low-income patients may draw the wrong kind of attention from the Centers for Medicare & Medicaid Services. “Patients returning to the ED shortly after discharge may also result in scrutiny from state and federal regulators,” Gutwald warns.

However, plaintiff attorneys probably would face an uphill battle trying to establish this kind of pattern in an ED. “I think a court would be hesitant to allow an attorney to engage in a fishing expedition and give them access to the records of enough patients to establish a pattern of disparate treatment,” Gutwald predicts.

Even if a plaintiff did get access to other patient charts, the court will not necessarily allow the charts to be admitted. This prevents the attorney from showing that other uninsured patients or Medicaid patients were treated similarly to the plaintiff, or that privately insured patients were treated differently. “Such evidence may be more prejudicial than probative,” Gutwald explains.


  1. Venkatesh AK, Chou S, Li S, et al. Association between insurance status and access to hospital care in emergency department disposition. JAMA Intern Med 2019; Apr 1. doi: 10.1001/jamainternmed.2019.0037. [Epub ahead of print].
  2. Fisher MA, Ma ZQ. Medicaid-insured and uninsured were more likely to have diabetes emergency/urgent admissions. Am J Manag Care 2015;21:e312-e319.