EMTALA Ends Once Patient is "Admitted" to the Hospital
Courts Agree with CMS
By Robert A. Bitterman, MD, JD, FACEP, Contributing Editor
In the early civil cases litigated under the law in the 1990s, the courts held that EMTALA's duty to stabilize continued to apply throughout the patient's entire stay in the hospital, no matter how long it was.1,2 For example, in Thornton v. Southwest Detroit Hospital the patient was discharged after a three-week inpatient admission and the court allowed the plaintiff to sue the hospital under EMTALA for allegedly discharging the patient in an unstable condition.1
If this interpretation became mainstream law, it would create an enormous expansion of hospital liability under federal law. All "premature discharge" claims would become federal "failure to stabilize" claims under EMTALA, the hospital would be directly liable for any negligence of the admitting/discharging physician, and the states would be stripped of their sovereign right to determine for themselves the balance necessary between tort remedies or protections to ensure availability of access to care for its denizens. Litigation under EMTALA for "failure to stabilize" patients would render the court's mantra that "EMTALA is not a federal malpractice law" to mere "gobbledygook."3
The Centers for Medicare & Medicaid Services (CMS), the agency within the Department of Health and Human Services (HHS) that Congress delegated rulemaking authority on EMTALA, remained silent on the issue until the U.S. Supreme Court case of Roberts v. Galen in 1999,4 which in part involved the question of whether EMTALA applied to hospital inpatients. At that time, the U.S. Solicitor General advised the Court that HHS/CMS would draft regulations clarifying its position on whether EMTALA applied to inpatients.4,5
Three years later, in May of 2002, CMS published a proposed regulation expressing its intent to apply EMTALA to inpatients.6 A torrential response from the medical community immediately followed, condemning CMS for failing to follow Congressional intent and/or interpret the statute correctly. EMTALA was meant to attach a duty to treat, a duty that was conspicuously absent under most state laws and federal law, and once that duty attached EMTALA was no longer necessary. Upon admission, a doctor-patient relationship and a hospital-patient relationship was established; thus, any failure to treat thereafter was subject to ordinary state malpractice law or legal abandonment theories. Furthermore, numerous Medicare conditions of participation protected all hospital inpatients, even if they were not covered under Medicare. Nevertheless, CMS actually believed that hospitals would attempt to circumvent EMTALA by admitting patients and then immediately transfer the uninsured to avoid the cost of providing stabilizing treatment.6
The courts had already been chipping away at the expansive Thornton ruling, limiting EMTALA's duty to stabilize to the "immediate aftermath" of the admission process, a nebulous concept and not the definitive "bright line" cut off of liability that hospitals were seeking.7 Then, literally within days of publication of CMS's proposed rule, two federal appellate courts opined that EMTALA's duty to stabilize did not extend to the inpatient setting.8 (Though only one of the two courts stated definitively that EMTALA ended upon admission, directly opposite the Thornton ruling.)
After nearly 18 months of mulling over the comments it received and court opinions on the issue, CMS actually changed its mind and in September 2003 published its final regulation; it held that EMTALA ended when the patient was formally admitted to the hospital.5
Legal Attacks on CMS' Interpretation
However, it remained to be seen if CMS's "admission defense" for hospitals, as it became known in the malpractice arena, for claims of failure to stabilize or treat emergency conditions would withstand assault by the plaintiff's bar. In typical fashion, it takes 3-5 years for cases to percolate through the legal system; however, in the past 8-12 months a flurry of cases have been decided on whether EMTALA ends upon admission. Virtually all of the cases upheld CMS's interpretation and regulation as legitimate and legally binding.
Some courts simply took CMS's interpretation at face value and accepted it in conclusionary fashion.9 Two courts in particular, in Anderson v. Kindred Hospital and Preston v. Meriter, extensively analyzed whether CMS had the authority to promulgate regulations on the issue and whether it's interpretation was consistent with the statute and legally binding upon the judiciary.10,11 Both found that Congress had expressly delegated to HHS/CMS rule-making powers with respect to EMTALA and determined that there was a rational basis for its decision that was not "arbitrary or capricious" and, therefore, was valid. The courts specifically cited CMS's deliberate approach to its decision making, including publishing a proposed regulation, accepting comments from the provider and legal communities, considering the case law on the issue, and that CMS' decision was not "manifestly contrary to the statute."10,11
Ramifications and Pitfalls
There are two essential conditions that must be met before hospitals can use the "admission defense" to avoid lawsuits under EMTALA for failure to stabilize a patient once the patient has been admitted to the hospital.
Admission Must be in "Good Faith." In both Anderson and Preston, the courts also were persuaded to accept admission as a defense to EMTALA liability claims for failure to stabilize because CMS included a qualifying factor in its regulation the admission had to be made in "good faith" and not as a subterfuge to avoid the law.5,10-12 CMS inserted the good faith precondition because it was still concerned that hospitals would attempt to circumvent EMTALA through the admission process. Therefore, admission is not an absolute defense to a failure to stabilize claim under EMTALA. Each case will be examined objectively under a facts and circumstances analysis to determine whether the hospital's actions were in good faith. If a plaintiff can demonstrate that the person was admitted but quickly discharged or transferred for financial reasons (before stabilization), or as a ruse to avoid EMTALA's duty to stabilize, then the hospital could still be held liable under the law.10,11
In the case of Morgan v. North Mississippi Medical Center, an uninsured elderly man presented to the ED after falling 12 feet from a deer hunting tree stand, sustaining serious injuries.13 The emergency physician diagnosed fractured ribs, a dislocated shoulder, and a pulmonary contusion and admitted the patient to the trauma surgeon on-call.
The plaintiffs alleged that the hospital demanded financial arrangements immediately upon emergency room arrival, then announced it would discharge Mr. Morgan the next day, despite knowledge of the "vertebrae compression fractures, intense pain, inability to walk, pulmonary contusions, and blood in his lungs."13 They also alleged that after several stalled attempts to discharge the patient, commencing within a day after his admission, the hospital discharged Mr. Morgan nine days after he was admitted, without conducting an MRI scan of his badly injured back, and despite his serious ongoing medical difficulties. Furthermore, the hospital transported Mr. Morgan in an ambulance it owned or controlled more than five hours away to his home in Alabama, where ambulance attendants had to "physically carry him inside the house to his bed on a stretcher," where the patient died within hours from untreated injuries relating to his fall.13
The court initially refused the hospital's motion to dismiss the family's "failure to stabilize" claim under EMTALA, even though the patient had been admitted for nine days, because there were enough indicia to indicate possible bad faith on the part of the hospital. The facts as alleged could reasonably support a conclusion that the admission was a facade with no intention to stabilize the injuries before discharge.13
Later, after a hearing on the issue and fortunately for the hospital, the court determined as a matter of law that the hospital had indeed acted in good faith in its efforts to stabilize the conditions it knew existed. There was evidence that the emergency physician and/or trauma surgeon did not diagnose the vertebral fractures or felt they were "old injuries" and that the patient had expressly and repeatedly refused an MRI to evaluate his back and refused physical therapy; multiple consultations with various specialists were obtained to evaluate his complaints; and the patient died from internal bleeding that no one at the hospital had diagnosed.14 (Hospitals are not liable for failing to stabilize conditions they do not diagnose and know to exist.15)
Additionally, the court noted that the extensive diagnostic testing, consultations, treatment regimens, and pain management ran up a hospital bill exceeding $24,000, the vast majority of which was incurred after the hospital's business office had been apprised that Mr. Morgan was uninsured and unable to pay for his medical care. The court also pointed out that "Mr. Morgan insisted that she [Mrs. Morgan, the plaintiff] pay the hospital's ambulance drivers a generous tip of $50 to buy their dinners, calling them "the nicest two people I've ever seen."'14
In the end, the court cited a "compelling backdrop of good-faith treatment" and that the plaintiff had not presented sufficient evidence to conclude that Mr. Morgan's hospital admission was a mere charade. The court held that the plaintiff's complaints about failure to diagnose and treat the vertebral compression fractures or internal bleeding were actionable only under state malpractice law, not EMTALA.14
The Patient Also Must Be "Formally Admitted" as Defined by CMS. The definition of "admitted" for the purposes of cutting off EMTALA liability is very important for hospitals and emergency physicians:
"Inpatient means an individual who is admitted to a hospital for bed occupancy for purposes of receiving inpatient hospital services as described in §409.10(a) of this chapter with the expectation that he or she will remain at least overnight and occupy a bed even though the situation later develops that the individual can be discharged or transferred to another hospital and does not actually use a hospital bed overnight."5,12
This is the same definition in the Medicare Hospital Manual, which is utilized by Medicare for purposes of Medicare payment, so it is well known to hospitals.16
Boarded Patients in the ED
CMS originally proposed to define inpatients as a patient who is "receiving inpatient hospital services" [as defined in 42 CFR 409.10(b)]," which may have excluded admitted patients boarded in the ED. After receiving comments about the crisis of ED boarding, CMS further considered the issue and amended its definition to be as noted above; it specifically commented that "individuals who are 'boarded' and admitted in the dedicated emergency department would be determined to be inpatients for purposes of EMTALA."5
Notice that under CMS's definition, even if the ED boarded patient is eventually discharged from the ED or transferred elsewhere and never actually gets to an inpatient bed or remains overnight, that EMTALA does not apply to that discharge or transfer. Because CMS and the courts hold that EMTALA ends upon admission, which is when the admitting order was written, any transfer of the patient after that point in time is not governed by the law in any way.5,10-12
Direct Admits via the ED
Direct admits who come through the ED and are held in the ED awaiting a bed also would meet the definition of "admitted" and exempt from EMTALA's stabilizing mandate. This also means that no medical screening examination is required for these patients while in the ED. The key here is that the patient must have formal written admitting orders that either come with the patient from the admitting physician's office or in transfer from another hospital, or have been called into the ED/hospital in advance of the patient's arrival. The physician can't send the patient to the ED "intending to admit" the patient, or claim that the patient is so sick that he "obviously will be admitted;" these patients still need to be screened and stabilized according to the law.
Admission to "Observation"
Admission to "observation" status does not meet CMS's regulatory definition of "admitted."5 Thus, EMTALA continues to apply to observation patients until they are stabilized or formally admitted to the hospital. For example, patients held in an ED chest pain unit or observation area continue to come under the umbrage of EMTALA. Similarly, if a hospitalist, an on-call physician, or the patient's private attending writes the order "admit to 'OBS,'" EMTALA continues to apply to the stabilization treatment of the patient; observation patients have not been formally or legally admitted yet in the eyes of the government for EMTALA purposes. The physical location of the patient within the hospital (ED, chest pain center, observation unit, urgent care center, inpatient unit, monitored bed, cath lab, radiology suite, ICU, etc.) isn't what counts; it's the legal status of the patient that matters formally "admitted," an "observation" patient, or still an ED patient.
This is an extremely important concept to consider if the patient could conceivably need to be transferred in the near term. Since CMS has just recently decided that other hospitals have no duty under EMTALA to accept transfers of inpatients with emergency conditions from other hospitals (as discussed in last month's issue of ED Legal Letter),17 these patients should be placed in "observation" status for the first 24 hours in case the transfer becomes necessary. That way the patient is still covered by EMTALA and other more capable hospitals still would be legally required to accept the patient in transfer under EMTALA's transfer acceptance provision.18
Examples would include trauma patients when there is concern for hidden injury that the hospital would not have the ability to treat if discovered or suicidal psychiatric patients in a hospital with psychiatric services that need their medical emergency, such as an overdose, treated before being transferred to a psychiatric facility.
It is absolutely critical that the medical record contain appropriate documentation that the patient was formally admitted to ensure use of the "admission defense" to end EMTALA (and similarly that the patient was kept in "observation" status and not formally admitted if the hospital wants to effect a transfer utilizing EMTALA to "convince" another hospital to accept the patient in transfer).
CMS and the courts will look to the medical record to see whether the hospital/physicians expected the patient to be admitted to an inpatient bed, eventually utilize inpatient services, and stay overnight.5,11 A formal written admitting order "admit to Dr. Smith" should generally be sufficient, especially if hospital policies and procedures define what admission means at your facility and the expectations for the patient and the admitting physician related to that admission. In essence, the hospital's admission process and procedure will be subject to retrospective scrutiny to determine if indeed the patient met the hospital's formal "admission" criteria to cut off EMTALA liability.
Emergency physicians also should be very careful when writing "admitting orders" or "holding orders" to cover the patient until the admitting physician assumes care of the patient in the inpatient setting. The first line of those orders should always read "Admit to Dr. Smith." Emergency physicians typically neither have admitting privileges nor are they credentialed to provide inpatient services; therefore, they can't formally admit the patient to themselves and "holding" the patient would appear more "observation" than "admission."
1. Thornton v. SW Detroit Hospital, 895 F.2d 1131 (6th Cir. 1990)
2. Lopez-Soto v. Hawayek, 175 F.3d 170 (1st Cir. 1999)
3. Brooks v. Maryland Gen. Hosp., Inc., 996 F.2d 708 (4th Cir. 1993)
4. Roberts v. Galen of Virginia, 525 U.S. 249 (1999)
5. 68 Fed. Reg. 53,221-53264 (Sept. 9, 2003)
6. 67 Fed. Reg. 31506-31507 (May 9, 2002). The CMS proposed EMTALA regulations that were the precursor for the final regulations of 2003.
7. E.g., Bryan v. Rectors and Visitors of the Univ. of Virginia, 95 F.3d 349 (4th Cir. 1996)
8. Bryant v. Adventist Health System, 289 F.3d 1162 (9th Cir. May 20, 2002) and Harry v. Marchant, 291 F.3d 767 (11th Cir. May 16, 2002).
9. Haight v. Robertson et al, 2008 U.S. Dist. LEXIS 30262 (N.D. Ind. March 31, 2008); Quinn v. BJC Health Sys, et al, 364 F.Supp.2d 1046 (E.D. MO. 2005); Prickett v. Hot Spring County Med. Ctr. et al, 2007 U.S. Dist. LEXIS 76954 (W.D. Ark. October 5, 2007); Hoffman v. Tonnemacher, 425 F. Supp.2d 1120, 1130 (E.D. Cal. 2006); But see Lima-Rivera v. UHS of Puerto Rico Inc, 476 F.Supp.2d 92 (D.P.R. 2007), which held that EMTALA did apply to inpatients but the case occurred before CMS published its rule on the matter and the court declined to apply the rule retrospectively.
10. Anderson v. Kindred Hospital, U.S. Dist. LEXIS 23162 (E.D. Tenn. March 24, 2008).
11. Preston v. Meriter, 747 N.W.2d 173 (Wisc. App. Jan. 24, 2008)
12. 42 CFR 489.24.
13. Morgan v. North Mississippi Med. Ctr., Inc., 403 F.Supp.2d 1115 (S.D. Ala. 2005)
14. Morgan v. North Mississippi Med. Ctr., Inc., 458 F.Supp.2d (S.D. Ala. 2006)
15. E.g., Vickers v. Nash General Hosp., Inc., 78 F.3d 139 (4th Cir. 1996); Stringfellow v. Oakwood Hosp. and Medical Center, 409 F. Supp.2d 866, 871 (E.D. Mich. 2005).
16. Medicare Hospital Manual, Section 210 (CMS Publication No. 10, 1989)
17. 73 Federal Register 48,654-48,668 (Aug. 19, 2008). Available at http://edocket.access.gpo.gov/2008/pdf/E8-17914.pdf.
18. 42 USC 1395dd(g).