CA Court Determines State's Damage Cap Does Not Apply to EMTALA Claim
By Michelle Bitterman Fish, JD and Robert A. Bitterman, MD, JD, FACEP, Contributing Editor
In a series of questionable decisions, a California federal court allowed a plaintiff to bring a "failure-to-screen" claim under the federal Emergency Medical Treatment and Active Labor Act (EMTALA) against a hospital for what was really an ordinary state malpractice claim for "failure to diagnose," and then held that California's $250,000 damages cap wouldn't apply because the EMTALA claim was not a "professional negligence" claim as contemplated by the state's tort reform law - the Medical Injury Compensation Reform Act (MICRA).1,2,3
Facts of the Case - Romar v. Fresno Community Hospital
Plaintiff Christina Romar, a toddler, presented to the emergency department (ED) of Fresno Community Hospital and Medical Center (FCH) with cold symptoms and a fever.
The clinicians noted the child had fever, cough/congestion, fussiness, pulling on the ears, runny nose with clear drainage, and a red, infected left ear. They diagnosed otitis media, prescribed acetaminophen and amoxicillin, and provided appropriate discharge instructions.2,3
Two days later, the child returned to the ED with bilateral periorbital swelling and a complaint of "mother thinks possible medication reaction." There was no fever, and examination of the ears and throat were normal (no signs of the ear infection). No diagnostic studies (such as a complete blood count [CBC], sedimentation rate, blood culture, or computed tomography [CT] scan) were obtained during this visit, which would be a major point of contention in the subsequent litigation. The child was diagnosed with an allergic reaction with acute angioedema and administered Decadron (steroid anti-inflammatory agent) and BenadrylTM, (an antihistamine). The amoxicillin was discontinued, and instead she was prescribed Prelone (steroid) and the antihistamine.2,3
Another three days later (five days from original presentation), the child was taken to a different hospital, where she was found to have orbital cellulitis, sinuses abscesses, and sepsis. She recovered after multiple surgeries, but suffered significant, permanent, debilitating injuries.2,3
Allegations and Claims / Theories of Liability
The child's mother sued the treating physician for malpractice, and the hospital and the physician for violating EMTALA by failing to provide an "appropriate" medical screening exam (MSE).1,2,3
Plaintiff's expert, Dr. Peggy Goldman, stated that the possibility that the child was suffering from a virulent bacterial infection "should have been recognized" by competent emergency medical practitioners. She also asserted that the hospital's medical screening exam was inappropriate under EMTALA because an acceptable "appropriate" MSE had to include, at a minimum, a CBC, blood differential, blood and urine cultures, a CT scan, and a sedimentation rate - none of which were ordered as part of the patient's screening examination. She asserted that the standard of care also required the hospital to conduct all these tests and to consult with a specialist and administer IV antibiotics at the time of the second visit.2
(Dr. Goldman also claimed that the hospital violated EMTALA because it failed to provide stabilizing treatment to the patient's emergency condition; despite the fact that every appellate court in the country has held that the hospital must have "actual knowledge," i.e., actually diagnose the emergency medical condition (in this case orbital cellulitis and/or sepsis), before it can be held liable under EMTALA for failure to stabilize that emergency condition.)2
The physician's standard of care expert, Dr. George Sternbach, opined that since there was no fever at the second visit, the child's ear was all better, and the periorbital swelling was bilateral (not unilateral, which is typical of an infectious process), it was reasonable and within the standard of care to diagnose the child with an allergic reaction to the amoxicillin at the time of the second visit.2 (Not to mention that most of our younger emergency physician colleagues have never seen orbital cellulitis due to the effective Haemophilus influenzae vaccine introduced in 1987.)
The hospital's EMTALA expert, Dr. Eric Weiss, stated that no diagnostic studies were necessary to screen the patient to comply with EMTALA. He stated that the child wasn't screened any differently than any other patient perceived to have the same or similar symptoms as the child. Whether the clinicians should have considered a more serious condition than an allergic reaction was a medical malpractice question under state law, not a federal question under EMTALA.2
The Court's Rulings
Medical Malpractice. In a legal snafu, the plaintiffs never actually had their medical expert opine at deposition that the emergency physician violated the standard of care. Therefore, since California law requires a plaintiff to produce expert medical testimony that the standard of care was breached, the involved physician was granted summary judgment and dismissed.1 Additionally, since a plaintiff can't sue physicians under EMTALA (they can only sue hospitals), the physician was gleefully out of the case entirely.4
EMTALA Failure-to-Screen Claim. To succeed on a failure-to-screen claim under EMTALA, the plaintiff must prove that the hospital provided no screening, screening so cursory that it was not reasonably calculated to detect emergency medical conditions, or disparate screening - a screening process that was not comparable to that offered other patients presenting with similar symptoms.
Usually, to prove a disparate screening claim, the plaintiff tries to show that the hospital didn't follow its own policies or procedures and thereby provided "disparate" care to the plaintiff. Romar didn't take that route, but instead alleged that the hospital's emergency physicians ordered diagnostic tests on other patients with similar presenting signs and symptoms but did not order such tests on the plaintiff, and thereby provided "disparate" screening in violation of the law.2
During discovery, the plaintiffs requested, and the court mandated the hospital to produce, "the emergency room records of all patients treated for a fever, possible infection, or other condition you deem similar to plaintiff's" in the month in question.2 After much bantering with the court over which medical records were deemed relevant, the hospital produced 287 ED medical records, of which the plaintiff claimed 30 presented with similar symptoms as the plaintiff but received superior screening exams.2 Essentially, the plaintiffs claimed that those 30 patients received diagnostic studies and the plaintiff did not, and therefore the hospital violated EMTALA because it provided "disparate screening" to the plaintiff.
The hospital's emergency physician EMTALA expert examined all 287 ED records and concluded that none revealed a similarly symptomatic patient screened differently than the plaintiff.2
The plaintiff's expert, Dr. Goldman, reviewed the same 287 cases and determined that numerous similarly situated patients received screening examinations that were, in crucial respects, more extensive and superior to those received by the plaintiff. She therefore opined that the MSE provide to the plaintiff was inappropriate and not in compliance with EMTALA. She noted that other cases received one or more of the studies she recommended and therefore the plaintiff did not receive the MSE she was entitled under EMTALA. (Interestingly, it appeared that none received all the tests she claimed were required by the standard of care.) Yet, Dr. Goldman readily admitted to the court that none of the cases reviewed presented the same as the plaintiff; i.e., none had bilateral periorbital edema without fever two days after initiation of antibiotics for a probable ear infection that was deemed to be allergic, not infectious, in origin.2
The court chose to let the decide jury the credibility of the experts and what weight to give their opinions on whether the records reviewed were sufficiently similar to determine the hospital provided the plaintiff with a disparate screening exam.2
The court failed to recognize that it is the process of the screening that needs to be disparate to violate EMTALA, not whether the physician's medical decision-making was different in patients with apparently similar symptoms or conditions. EMTALA requires the medical screening process to be uniform for all patients, not that the physician's judgment will be the same or correct in each case. The process refers to how the hospital goes about taking care of the patient: triage, vital signs, placement in a room, interaction with the emergency physician or mid-level provider sanctioned to provide the MSE on behalf of the hospital, material compliance with hospital policies and procedures, and that the physician undertakes medical decision-making based on medical indications (including testing, consulting, and disposition decisions), not based on any discriminatory reasons. EMTALA doesn't govern the accuracy or competency of the physician's medical decision-making; that's an issue for state malpractice law.5
Furthermore, the screening required is for the symptoms or condition as perceived by the examining physician, not for the symptoms or condition that actually existed or "should have been" diagnosed.6 If the physician judges a patient's back pain to be from a pulled muscle from lifting a heavy box, the standard screening exam would be limited to the history and physical exam; it wouldn't include a CT scan to rule out an aortic aneurysm or obstructing urinary tract stone. Only if the physician perceived the patient's symptoms to point to a possible ruptured aneurysm would the standard screening exam include a diagnostic study such as a CT or ultrasound. On the same line, is there any emergency physician who would order a CBC, blood culture, sedimentation rate, and CT scan for periorbital edema if the physician truly believed the etiology was a straightforward allergic reaction?
If the court's ruling is correct, it means every testing decision made by emergency physicians is subject to liability under EMTALA. If 287 headache patients present to the ED each month and on 30 of them the emergency physician orders a CT scan to rule out a bleed or tumor, does that mean he violates EMTALA in each of the other 257 cases for failure to conduct an "appropriate" MSE by providing "disparate" screening? Or does the emergency physician violate the law in the 30 cases by actually ordering the study, which is still "disparate" screening compared to the other 257 cases? Note that "disparate" just means "different," not necessarily "less extensive" thus, more extensive screening when ordering tests is equally as "disparate" as less extensive screening.
Plaintiff's allegation was nothing more than a garden variety "failure-to-diagnose" claim. The plaintiff was simply questioning the medical judgment of the hospital's medical staff regarding whether diagnostic testing was medically indicated during the ED visit at issue.
The judge should have dismissed the EMTALA screening claim at this stage of the proceedings, in which case the plaintiff's end-run on California's medical malpractice tort reform would have been averted.
California's Damages Cap. In a civil action under EMTALA, the plaintiff can only recover those damages available for personal injury under the law of the state in which the hospital is located.4 Thus, the damages available are subject to the limitations set by each state's tort reform legislation.
California's well-known and envied MICRA imposes a $250,000 limit on non-economic damages for professional negligence, among other limitations on the types of damages allowable and attorney fees.7
Plaintiff, however, contended that the screening claim under EMTALA was not a professional negligence claim and therefore the state caps didn't apply to the case.8
The court first noted that MICRA specifically defines "professional negligence," for purposes of enforcing the caps, as "a negligent act or omission to act by a health care provider in the rendering of professional services," which is the proximate cause of the plaintiff's injury.9
It then noted that under California law, "when a cause of action is asserted against a health care provider on a legal theory other than medical malpractice (such as EMTALA), the courts must determine whether it is nevertheless based on the 'professional negligence' of the health care provider so as to trigger MICRA." 10 In other words, the analytical approach adopted by the California Supreme Court for determining whether the MICRA cap applies to a particular EMTALA claim is to examine the nature of the health care provider's conduct itself to determine whether it would constitute "professional negligence" under California law.11
The court then made this astounding statement:
"Although a medical screening may be a service provided by a hospital, the provision of a screening is not governed by the standards of knowledge, care, and skill of members of the medical profession; a disparate screening claim is based on disparate treatment."2
The court decided the issue was whether the patient "received a materially different screening that that provided to others in her condition."12
How did the court think that question could be answered in this case? Whether to order diagnostic tests, and which tests would be indicated in a particular clinical scenario, is clearly determined by the professional judgment of the examining physician. Neither the court nor a lay jury would have sufficient knowledge or expertise to determine whether ordering tests was "disparate" treatment; that conduct is clearly medical decision-making - medical judgment - and requires expert testimony to assist the jury.
In fact, the Sixth Circuit, in the case of Smith v. Botsford General Hospital13. which was cited by the Romar court, specifically identified the need for expert testimony as the key distinguishing feature of claims involving professional negligence. The Sixth Circuit also looked to the conduct of the physician to determine if a plaintiff's EMTALA claim would constitute a professional negligence claim under Michigan law and come under the state's cap law.13,14
The Romar court, however, didn't accept the expert testimony argument or agree with the hospital that the screening standard clearly depended upon how the reasonable medical professional (standard of care) would act in the particular situation in question.
Therefore, the court concluded that disparate screening, in this case failure to order a diagnostic test, is not a "negligent act or omission," and thus not based on professional negligence as defined by the MICRA legislation.3 Therefore, the court held that MICRA's $250,000 non-economic damages cap does not apply to a failure to screen claim under EMTALA.3
Comparison to the California Supreme Court ruling in Barris v. County of Los Angeles
In Barris, the court had held that in order to violate EMTALA a hospital or physician would have to act negligently and fail to conform to professional standards, and therefore the MICRA cap applied.11 However, the Romar court declined to follow the California Supreme Court's ruling in Barris because it was a failure to stabilize case, not a disparate screening case.11 Romar simply ignored the concurring opinion in Barris, which stated, "a hospital's demonstrated failure to act in accordance with EMTALA is, in and of itself, 'a negligent ... omission to act by a health care provider in the rendering of professional services' under the MICRA definition of professional negligence."11 This justice concluded that any liability claim based on EMTALA, a screening or stabilization claim, constituted an action based on professional negligence subject to MICRA.15
Under the rationale of the California Supreme Court, the Romar court wrongly decided this case.
Ramifications of the Court's Decisions
The court's decisions have the potential to markedly expand hospital liability and void state legislative caps for non-economic damages. The precedent the court set by allowing failure-to-screen claims under EMTALA for the routine medical decision-making regarding ordering diagnostic tests in the ED is a dangerous one. Plaintiffs' attorneys will now try to fit all sorts of ordinary medical malpractice claims into an EMTALA failure-to-screen cause of action: first, to sue the hospital directly for the actions of the emergency physicians; and second, to circumvent the states' non-economic damages cap law. This is was not what the U.S. Congress intended when it enacted EMTALA, which was designed to prevent hospitals or physicians from refusing to treat patients or treating them in a disparate manner due to discriminatory reasons.
Also, this case clearly illustrates the need for careful and artful drafting of tort reform legislation. While MICRA was drafted prior to EMTALA's passage,16 the same issue has been litigated in many states that have more recently enacted tort reform and damages caps.17 The California legislature and that in other states should reconsider the language in their reform laws to explicitly include civil liability claims under EMTALA.
1. Romar v. Fresno Comm. Hosp. et al., 2007 U.S. Dist. LEXIS 25927 (E.D.Cal. Mar. 21, 2007).
2. Romar v. Fresno Comm. Hosp. et al., 2007 U.S. Dist. LEXIS 25959 (E.D.Cal. Mar. 21, 2007).
3. Romar v. Fresno Comm. Hosp. et al., 2008 U.S. Dist. LEXIS 85080 (E.D.Cal. Oct. 10, 2008).
4. 42 USC 1395dd(d)(2)(A).
5. Eg., Baker v. Adventist Health, Inc., 260 F.3d 987 (9th Cir. 2001).
6. Vickers v. Nash General Hosp., Inc., 78 F.3d 139, 144-45 (4th Cir. 1995).
7. Cal. Civ. Code § 3333.2 et seq. See http://www.micra.org/about-micra/micra-history.html. (Accessed 11/30/2008.)
8. California Civil Code § 3333.2(a).
9. Romar v. Fresno Comm. Hosp. et al., 2008 U.S. Dist. LEXIS 85080 (E.D.Cal. Oct. 10, 2008). Plaintiff argued that two federal district courts held that EMTALA claims are not subject to the severe non-economic damage limitations applicable to medical malpractice claims under MICRA. See Jackson v. East Bay Hosp., 980 F.Supp. 1341 (N.D. Cal. 1997); Burrows v. Redbud Community Hosp. Dist., 188 F.R.D. 356 (N.D. Cal. 1997).
10. Citing Smith v. Ben Bennett, Inc., 133 Cal.App.4th 1507, 1514 (2005).
11. Barris v. County of Los Angeles, 972 P.2d 966 (Ca. 1999).
12. Romar v. Fresno Comm. Hosp. et al., 2007 U.S. Dist. LEXIS 25959 (E.D.Cal. Mar. 21, 2007). The court noted that EMTALA was a statutory liability claim for disparate screening and not a negligence claim, in accord with other jurisdictions, and that Congress did not intend to impose a federal malpractice standard when it passed EMTALA.
13. Smith v. Botsford General Hospital 419 F.3d 513 (6th Cir. 2005).
14. Mich. Comp. Laws §600.1483.
15. Barris v. County of Los Angeles, 972 P.2d 966 (Ca. 1999), concurring opinion and citing Power v. Arlington Hosp. Ass'n. 42 F.3d 851 (4th Cir. 1994); concluding that an EMTALA claim based on alleged disparate medical screening by a hospital was subject to Virginia's cap on medical malpractice damages even though the claim did not allege a breach of the prevailing standard of care.
16. MICRA was passed by the California legislature in 1975.
17. E.g. See Power v. Arlington Hosp. Assoc., 42 F.3d 851 (4th Cir. 1994); Smith v. Botsford Gen. Hosp., 419 F.3d 513 (6th Cir. 2005); Brooks v. Maryland Gen. Hosp., 996 F.2d 708, 715 (4th Cir. 1993); Valencia v. St. Francis Hosp. & Health Ctr., 03-cv-0252-LJM-WTL, 2004 U.S. Dist. LEXIS 7929 (S.D. Ind. Mar. 1, 2004) (agreeing with Power); Hughes v. PeaceHealth, No. A123782 (Or. Ct. App. Mar. 15, 2006); and Jeff v. Univ. Health Servs., Inc., No. Civ.A.04-1507 (E.D. La. July 27, 2005).