Overcrowded Emergency Department Leads to Lawsuit Over EMTALA
By Robert A. Bitterman, MD, JD, FACEP, Contributing Editor
A patient, Scruggs, presented to Danville (VA) Regional Medical Center (DRMC) ED about 2 a.m. complaining of two days of prolonged dry heaves. He was triaged in the usual manner, prioritized as "non-urgent," and instructed to wait in the waiting area until his name was called. The court pointedly noted that the triage nurse failed to document the patient's "diabetic ketoacidosis condition or his history of diabetes."1
Almost 12 hours later, Scruggs was finally examined by the emergency physician on duty, who learned of the history of diabetes, conducted a full examination, and noted the patient to be tachycardic. The physician ordered intravenous fluids, oxygen, a cardiac monitor, and laboratory tests, which included a blood glucose. An hour later, an ED nurse found Scruggs unresponsive and in cardiopulmonary arrest. He was successfully resuscitated, admitted to the hospital, and recovered to be eventually discharged home.
Plaintiff Scruggs sued and alleged that the hospital violated EMTALA for "failing to provide an appropriate and prompt medical screening examination," claiming that the hospital staff ignored his repeated pleas for help.1 (Emphasis added.) Furthermore, he asserted that triage alone is not a medical screening exam (MSE) and the nurse's triage of him was insufficient to meet the hospital's screening duty under the law.
The defendant hospital moved to dismiss the lawsuit and argued that the complaint failed to set forth facts sufficient to establish that it failed to provide an "appropriate" medical screening examination, as that term is defined under EMTALA by the federal courts. The hospital asserted that Scruggs' claim was simply one for negligent triage and that EMTALA is not a substitute for state law medical negligence claims.1
The court's opinion
The court agreed with the hospital that an "appropriate" medical screening exam (MSE) refers to the hospital's process of screening patients and whether it was applied uniformly to all patients presenting with similar complaints. The court also acknowledged that "triage is a necessary part of emergency care utilized to determine the priority by which patients are examined," but then emphasized that "triage is not the equivalent to a MSE and merely determines the order by which patients are seen in the ED."1
Furthermore, the court accepted established precedent of the Fourth Circuit, affirming that "EMTALA is not a substitute for state law malpractice actions, and was not intended to guarantee proper diagnosis or to provide a federal remedy for misdiagnosis or medical negligence."2
However, the court cited the same case law that makes it clear that EMTALA requires hospitals to provide some medical screening, which is reasonably calculated to determine "whether a patient with acute or severe symptoms has a life threatening or serious medical condition."1,2 Thus, the court determined that it is possible that the hospital's screening procedures could be so substandard as to amount to no screening at all.1
In essence, the court was stating that Scruggs might be able to prove that the extensive delay in screening him essentially amounted to denial of an adequate or appropriate MSE in violation of EMTALA, i.e., the prolonged delay constituted "constructive denial" of his federal right to an "appropriate" medical screening exam.
The district court also focused on language in the seminal case of Baber v. Hospital Corp. of Am. and stated "whether the hospital's screening is 'appropriate' is inherently a factual determination and is not a candidate for determination on a motion to dismiss."3 Because the hospital moved to dismiss the case pursuant to federal rule 12(b)(6), the court was required to take the facts as alleged in the complaint to be true.4 Thus, the court assumed, as the plaintiff asserted, that the hospital ignored his pleas for help and provided absolutely no medical treatment for 11½ hours subsequent to the time he presented to Danville's emergency department. The court held that Scruggs could possibly make out a claim under EMTALA for failure to provide an "appropriate" MSE. Therefore it denied the hospital's motion to dismiss and allowed plaintiff Scruggs to proceed with his litigation against the hospital.
Procedural legal analysis
Before physicians at all overcrowded backed-up EDs in the country start hyperventilating, it must be pointed out that this was a federal "12(b)(6) motion" to dismiss for failure to state a claim and not a motion for summary judgment.4 A motion to dismiss under Rule 12(b)(6) is disfavored in law and rarely granted.5 The court must accept all the pleaded facts as true and view them in the light most favorable to the plaintiff; then it will dismiss the claim only if it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief.
Thus, the hospital's contention that the allegations were unsubstantiated and therefore warrant dismissal was not relevant, since a Rule 12(b)(6) motion merely tests the adequacy of the pleadings and not plaintiffs' ultimate evidentiary burden. If the plaintiff fails to substantiate the allegations with admissible evidence though the discovery process, then the hospital would be entitled to summary judgment.6
Substantive legal analysis
The real issue of this case is whether an "appropriate" MSE should be construed to mean a reasonably prompt MSE.7 Said another way, does the EMTALA statute or regulations require the MSE to be performed within a certain period of time after the patient's arrival to the ED?
The Centers for Medicare & Medicaid Services (CMS) specifically instructs its state survey investigators to examine "emergency department visits where the patient is logged in for an unreasonable amount of time before the time indicated for commencement of the medical screening examination."8 CMS has cited hospitals for unreasonably delaying the provision of MSEs to indigents when no other emergencies were being treated, based on the premise that delay of access is equivalent to denial of access. But in each case there was obvious discrimination or disparate treatment; it was not a situation in which someone, as did all others in the same triage category, had to wait an inordinate amount of time simply because the ED was overwhelmed.9
The Office of the Inspector General (OIG), which enforces EMTALA along with CMS, is on record stating it believes the immediacy of the MSE is part of what is "appropriate" under EMTALA's screening duty. Therefore, under the OIG's reading of the statute, the amount of waiting time from presentation to actual screening in the ED could conceivably be a factor in judging whether a hospital provided an appropriate MSE.10
In a November 1999 Special Advisory Bulletin, CMS and the OIG warned hospitals as follows: "It is our view that hospitals should be very concerned about patients leaving without being screened. Since every patient who presents seeking emergency services is entitled to a screening examination, a hospital could violate the patient antidumping statute if it routinely keeps patients waiting so long that they leave without being seen ..."11
Scruggs didn't leave the ED, fortunately, but he was kept waiting a very long time. CMS and the OIG could construe an "appropriate" MSE to mean one that is reasonably prompt.
The appellate courts, to my knowledge, have not yet opined on the exact scenario of the Scruggs v. DRMC case. One appellate court, in the case of Correa v. Hospital San Francisco, held that a hospital's delay in screening constituted a constructive refusal to screen a patient, in violation of EMTALA12 The patient presented with chest pain but still was not triaged after waiting more than two hours. The court interpreted the word "appropriate" to mean that patients should be examined within a reasonable period of time depending on the nature and circumstances of the complaints for which they presented. The court held that the excessive delay constituted a constructive denial of the MSE on behalf of the hospital, stating that: "EMTALA should be read to proscribe both actual and constructive dumping of patients."12
However, in the Correa case, the court's decision stemmed from the hospital's failure to follow its own policies, not that the patient was constructively denied screening due to non-discriminatory delay. The hospital's written policies required the emergency department to "promptly take the vital signs of every patient who visited the facility, make records of all such visits, triage patients complaining of chest pains as critical cases, and to refer all critical cases to an in-house physician immediately."12
Policy and procedure considerations
Hospitals must be careful how they define their own reasonable time frames in policies and procedures. If a hospital commits to performing an MSE or triage examination within a certain period of time, it will be held to that standard, as in the Correa case. Failure to complete those procedures within the stated time frame will be a violation of federal law. For example, a Florida hospital's EMTALA policy stated that all patients would be triaged within three minutes of their arrival to the emergency department. One patient was not triaged until well over 45 minutes after arrival and died of a ruptured abdominal aneurysm that was not diagnosed in a timely fashion. The hospital was held to have violated EMTALA because it failed to triage the individual within the 3 minutes specified in its own policies.13
Hospital policies should state that triage or the MSE will be done "as soon as reasonably possible" or "within a reasonable time frame depending upon the circumstances," but never guarantee performance within a set period of time. The practice of emergency medicine is simply too unpredictable.
A semi-analogous situation arises when a hospital is asked to accept a patient in transfer under EMTALA's non-discrimination clause.14 It is not uncommon for the requested hospital to take an inordinate amount of time to respond to the request, typically because of difficulty locating the hospital's on-call physician who must accept the patient in transfer. Such delays are really a "no" answer; a constructive denial of the request to accept the patient in transfer. A potential accepting hospital should respond within a reasonable time frame so that the transferring hospital can arrange proper care for the emergency patient in a timely fashion. The expected "standard of care" should be that an accepting hospital has addressed the issue in its policies and procedures and is able to asses its capacity and capabilities, including its on-call physician expertise and availability, in a reasonably prompt time frame.
What is a reasonable amount of time for a patient to wait before the hospital conducts the MSE? Obviously, wait times in emergency departments vary from day to day. Longstanding Medicare Conditions of Participation require hospitals to be adequately staffed to meet the reasonably anticipated ED volume.15 If the hospital commits resources and staffing personnel to the ED judged reasonable for the expected volume and acuity under ordinary circumstances, it should be adequate under EMTALA. Only if patients routinely wait egregiously long times should the government or the courts be allowed to claim that the hospital constructively denied patients appropriate MSEs.16 Occasional long waits, such as those that occur in flu season or during a night of multiple auto crashes after an ice storm, shouldn't be an issue under the law.
Waiting times have increased all across the country. Hospitals have no control over the volume entering their doors due to the EMTALA mandate and, in some states such as Massachusetts, the decision by state or local authorities to prohibit ambulance diversion. Public "safety-net" hospitals are known to have prolonged waiting times, particularly for patients triaged as non-urgent. How many minutes or hours are too long before a MSE is not "reasonably prompt"? Will every mistaken categorization of a patient's acuity status by the triage nurse that delays necessary emergency care, whether negligent or not, become an EMTALA violation? If such cases are allowed to routinely go to a jury, the plaintiff's bar will have a field day claiming "egregiousness" of ED wait times and engendering outrage to inflame the jury.
The ultimate outcome of the Scruggs v. Danville Regional Medical Center case could send some serious reverberations through our nation's emergency departments.
1. Scruggs v. Danville Reg'l Med. Ctr., No. 4:08CV00005 (W.D. Va. Sept. 5, 2008).
2. Power v. Arlington Hosp. Ass'n, 42 F.3d 851 (Fourth Cir. 1994); Vickers v. Nash Gen. Hosp., Inc., 78 F.3d 139 (Fourth Cir. 1996).
3. Baber v. Hosp. Corp. of Am., 977 F.2d 872 (Fourth Cir. 1992); emphasis added.
4. Federal Rules of Civil Procedure Rule 12(b)(6).
5. E.g., Thompson v. Goetzmann 337 F.3d 489, 495 (5th Cir. 2003).
6. Eg., Southard v. United Regional Health Care System, Inc., Civil Action No. 7:06-CV-011-R, U.S. Dist. LEXIS 47319 (N.D. Texas July 12, 2006).
7. Bitterman RA. A critical analysis of the federal COBRA hospital "antidumping law": ramifications for hospitals, physicians, and effects on access to healthcare, Univ Detroit Mercy Law Rev 1992; 70:125-190; McClurg AJ. Your money or your life. Interpreting the federal act against patient dumping. Wake Forest Law Rev 1989; 24:173.
8. HHS CMS/Survey and Certification Group. S&C-04-34, Revised Final EMTALA Interpretive Guidelines, May 13, 2004; available at www.cms.hhs.gov/manuals/Downloads/som107ap_v_emerg.pdf.
9. Frew SA. Patient Transfers: How to Comply With the Law. Dallas: American College of Emergency Physicians; 1991.
10. Statements of Sandra Sands, Esq, Senior Counsel, OIG, at the Emergency Department Practice Management Association Advanced EMTALA Workshop in New Orleans, April 8, 2000, and at the American College of Emergency Physicians Scientific Assembly in Las Vegas, Oct. 11, 1999.
11. 64 Fed Reg 61353 (Nov. 10, 1999).
12. Correa v. Hospital San Francisco, 69 F3d 1184 (First Cir. 1995).
13. Diamond v. Adventist Health Systems, Case No 97-14041-CIV-DAVIS, (SD Fla. 1997).
14. 42 USC 1395dd(g). Transfer acceptance requirement of EMTALA.
15. 42 CFR 482.55 et seq.
16. Bitterman RA. Providing Emergency Care under Federal Law: EMTALA. Dallas: American College of Emergency Physicians; 2001.