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EMTALA Headed to the Supreme Court?
Michigan hospital petitions U.S. Supreme Court to overrule the Sixth Circuit Court of Appeals and declare finally that admission ends the application of EMTALA
By Robert A. Bitterman, MD, JD, FACEP, Contributing Editor
Whether the Emergency Medical Treatment and Active Labor Act (EMTALA) ends upon admission or extends indefinitely until the admitted patient is eventually discharged or transferred has been debated by the courts, government agencies, and EMTALA pundits for years without definitive resolution.1,2
In the early 1990s, courts held that EMTALA's duty to stabilize continued to apply throughout the patient's entire stay in the hospital, no matter how long.3,4 The Centers for Medicare and Medicaid Services (CMS), the agency charged by Congress to write EMTALA regulations, never touched the issue until the U.S. Supreme Court case of Roberts v. Galen in 1999,5 which tangentially involved the issue of EMTALA's application to inpatients. At that time, the U.S. Solicitor General advised the Supreme Court that CMS would draft regulations opining on whether EMTALA applied to inpatients.5,6
CMS published the proposed regulations in 2002, expressing its intent to apply EMTALA to inpatients.7 But CMS reversed itself shortly thereafter, and in late 2003 published final regulations holding that EMTALA ended when the patient was formally admitted to the hospital.6,8 In the interim, CMS had been pounded by the medical community, particularly hospitals (which had the most to lose), and a number of courts had ruled that EMTALA did not apply after admission. CMS ultimately endorsed the logic of two appellate court opinions on the matter, particularly the Ninth Circuit case of Bryant v. Adventist Health System.9,10 Nonetheless, CMS still believed hospitals would attempt to circumvent EMTALA by admitting patients and then immediately transferring the uninsured to avoid the cost of providing stabilizing treatment.7 Thus, its regulation included a "good faith" requirement that the hospitals actively endeavor to stabilize patients with emergency medical conditions (EMCs) after admission.11
In the years that followed, CMS's proclamation, or "admission defense," for hospitals, as it became know in the malpractice arena, withstood the inevitable assault from the plaintiffs' bar.
The courts decided that EMTALA does not "reach into the hospital room of a patient admitted" because such an interpretation would turn the law into a federal malpractice act;12 and the duty to stabilize or transfer must be cut off at some point, so once a hospital and physician–patient relationship and state law liability were established, EMTALA liability was terminated.13
Most courts simply accepted CMS's interpretation of the law as gospel.14,15,16,17,18 Others, such as Anderson v. Kindred Hospital and Preston v. Meriter, extensively analyzed whether CMS actually had the authority to promulgate regulations on the issue and whether its interpretation was consistent with the statute and legally binding upon the judiciary.19,20 The courts found that Congress had expressly delegated to 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 was therefore 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."19,20
Moses v. Providence Hospital and Medical Centers, Inc.
Then came the Sixth Circuit case of Moses v. Providence Hospital which muddied the waters once again.21,22 Twice before, in 1990 and 1997, the Sixth Circuit Court of Appeals had held that admission does not end EMTALA.3,23 But both cases occurred before CMS published its final rule stating that EMTALA did indeed end when the hospital admitted the patient in good faith.
The Sixth Circuit stuck to its own interpretation of EMTALA and overruled CMS. It held that the CMS regulation was contrary to EMTALA's plain language, which requires a hospital to "provide ... for such further medical examination and such treatment as may be required to stabilize the medical condition."21,24 Therefore, the court held that the hospital was required under EMTALA not just to admit patients with EMCs to the inpatient setting, but to actually treat them in order to stabilize them, so that at the time of discharge no further deterioration of the EMC was likely.21,24,25
The hospital sought a rehearing with the full Sixth Circuit, but was denied. One judge dissented and noted that the court had "perpetuated a serious conflict between our circuit and the Ninth Circuit, the Fourth Circuit, the federal regulations, and the vast majority of lower court decisions."26 He further stated, "Our panel decision misconstrues EMTALA, making it a general federal malpractice statute, rather than an act limited to emergency room screening and stabilization."26
Up until the Moses case, virtually all federal district and appellate case law had upheld CMS's interpretation and regulation as legitimate and legally binding. Providence Hospital, therefore, petitioned the US Supreme Court late in 2009 to accept the case and finally, once and for all, settle the issue of whether EMTALA applies to admitted patients.
Providence Hospital and Medical Centers, Inc. v. Moses
Only once before, in the Roberts v. Galenof Virginia case, which was another Sixth Circuit case, had an EMTALA issue reached the U.S. Supreme Court. In Roberts, a multiple trauma patient had been in the hospital for eight weeks and the Sixth Circuit allowed the plaintiffs to sue the hospital under EMTALA for allegedly discharging the patient in an unstable condition. (Remember that all "discharges" from a hospital, whether from an ED or the inpatient setting, are legally defined by EMTALA as "transfers," and the hospital's duty, if it has the capability to do so, is to provide sufficient treatment such that the patient is "stabilized" at the time of transfer.)3,5,23,27
The hospital appealed the Roberts decision to the Supreme Court. It lost the case on other grounds, but one of its arguments was that EMTALA was not meant to apply to inpatients or extended stays in the hospital.5 The Supreme Court, however, refused to decide whether EMTALA applied to inpatients, stating that the issue had not yet been "sufficiently developed below [in the trial or appellate courts] for us to assess the argument."5
Now the issue is certainly ripe for consideration by the high court. It has recently been listed among the cases up for consideration at the Justices' private Friday conferences,28 and on Jan. 25, 2010, possibly foretelling that the Supreme Court may accept the case, the Court invited the U.S. Solicitor General to file a brief expressing the views of the United States on the matter.29
Providence Hospital's Position. The hospital is asking the court to do three things (beyond accepting the case):
1.) Reject the ruling of the Sixth Circuit and accept the rulings of the Fourth and Ninth Circuits, as well as those of the plethora of state courts and lower federal courts that have all held that EMTALA ends upon admission.30
2.)Hold that CMS's regulation clarifying that EMTALA is inapplicable to hospital inpatients is valid.
3.)Hold that the regulation applies retroactively.30 The care of the patient in this case occurred before CMS issued its final rule in September 2003.21
Thus, even if the court decides the CMS regulation is valid, it is of no benefit to the hospital unless it can also convince the court to apply the regulation retroactively which it customarily does when an agency's clarifying regulation does not replace a prior agency interpretation on point.31 The Wisconsin Supreme Court directly addressed this issue last year, citing U.S. Supreme Court precedent, and did find that CMS's regulation applied retroactively.20 Moses argues that the 2003 final regulation replaced the 2002 proposed final rule,32 but a "proposed" rule doesn't count as a prior agency determination. There clearly had never been any previous CMS written opinion on the applicability of EMTALA to inpatients.
The hospital points out that the Sixth Circuit extends federally mandated hospital services far beyond Congressional intent of preventing economic discrimination in the emergency department (ED), in effect creating a "super federal malpractice statute superimposed upon and displacing state common law."30
Furthermore, 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, and thus any failure to treat thereafter was subject to ordinary state malpractice law or legal abandonment theories. Also, numerous Medicare conditions of participation protected all hospital inpatients, even if they were not covered under Medicare.
Moses's Position. Moses contends this is a case that directly implicates the antidumping policy behind EMTALA, because the hospital terminated the patient's inpatient treatment when it discovered that his insurance would not pay any part of that treatment.32
She notes that the screening section of EMTALA refers to care in the ED, but that the stabilization section refers to the "hospital," not just the ED.32 Moses also contended that the statute defines its key words and phrases without confining them to the ED setting. Thus, for example, the term "transfer" is defined in EMTALA as "the movement (including the discharge) of an individual outside a hospital's facilities." [Citing 42 U.S.C. §1395dd(e)(4) (emphasis added).32
Furthermore, Moses stated that "Congress could have limited the reach of EMTALA's anti-transfer provision to the actions taken within an emergency department by specifying that the word 'transfer' encompasses only a transfer from a hospital's emergency department. But, Congress did not so limit the anti-transfer provision of EMTALA."32
Regarding CMS's regulation, Moses viewed it appropriate for the Sixth Circuit to reject administrative constructions which are contrary to clear Congressional intent. To paraphrase the First Circuit, inpatient dumping "is equally as pernicious as what occurs in emergency departments, and we are unprepared to say that Congress did not seek to curb it."33
Moses contends that CMS's vacillation and reversal of its proposed rules extending EMTALA's stabilization requirements to patients who were admitted to the hospital highlight the fact that the language of EMTALA does not readily lend itself to the conclusion that the Act has no application whatsoever once a patient is admitted to the hospital.
However, Moses's allegation that the discharge of the patient was motivated by the hospital's payment concerns, for which EMTALA should provide a remedy, may be an argument better posited under the "good faith" exception of CMS's regulation.
Amicus Brief of the Michigan Health and Hospital Association. The Michigan Health and Hospital Association filed a brief urging the Supreme Court to take the case.34 Its primary argument is that the Sixth Circuit's ruling greatly expands the civil liability of hospitals, which would significantly and adversely impact Michigan's community hospitals, which are already suffering under the burden of uncompensated care for the uninsured.
Additionally, it would markedly expand the hospitals' regulatory liability, exposure to civil monetary penalties, and potential exclusion from the Medicare and Medicaid programs.
Furthermore, only Michigan's hospitals (and others in the 6th Circuit Ohio, Kentucky, and Tennessee) would suffer these greater obligations and burdens under EMTALA; with the rest of the country unencumbered and thus at a competitive advantage.
Ramifications of the Court's Decision
There are enormous consequences at stake for hospitals, physicians, and patients depending upon whether the Supreme Court hears the case and what it ultimately decides on the merits of the issues presented. (See Table.)
Regulatory and civil liability of hospitals. If the law applies to inpatients, it markedly expands hospital liability under federal law.35 All current "premature discharge" malpractice claims would be recast as federal "failure to stabilize" claims under EMTALA, and the hospital would be directly liable for any negligence of the admitting / discharging physician, moving hospitals ever closer to pure enterprise liability under federal law. Furthermore, the individual 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.
Note that EMTALA is already a federal malpractice act for emergency medicine; every patient we diagnose with an EMC and treat and release from the ED is subject to an EMTALA failure to stabilize claim against the hospital (because when we "discharge" the patient we have actually transferred them under the law, and the stabilization question is an objective one, subject to the battle of the experts exactly like ordinary malpractice "Dr. Emergency Physician / Mr. Hospital ... you should have given that anaphylaxis patient one more dose of epinephrine and one more liter of fluid before discharge, therefore you violated EMTALA for failing to stabilize the patient before discharge.").
Also, contrary to CMS regulations, EMTALA would apply to all inpatients with an EMC, including those who did not have an EMC upon admission but developed one while in the hospital, and not just those admitted through the ED. All direct admits would be subject to EMTALA at the time of discharge if an EMC was diagnosed before or during the time of admission.
One very important point to note, however, and especially relevant to defense lawyers, is that EMTALA's duty to stabilize applies ONLY at the time of transfer (or discharge). Therefore, the typical "failure to stabilize" claim plaintiffs try to bring against hospitals for failing to stabilize patients admitted through the ED will fail because either the patient died in the hospital (even if due to negligence in stabilizing the patient), in which case the law does not apply (read the definition of "transfer" it specifically excludes patients who leave the facility dead); or stabilizing treatment failed or was done negligently such that the patient suffered a bad result, but by the time the patient was ultimately discharged days or weeks later, the patient was by then stable to head to the nursing home. In other words, no matter how negligently the hospital or admitting physicians failed to stabilize / save the patient during the initial crisis at the time of admission, the only time this issue of stabilization under EMTALA comes into play is at the time the patient actually leaves the hospital it is irrelevant for purposes of compliance with EMTALA what the hospital did or did not do for the patient prior to the time of discharge / transfer. It is only the condition of the patient at the time of discharge or transfer that matters (stable or unstable at that point in time).
On the regulatory side, every inpatient discharge would be subject to second guessing retrospectively by CMS on whether the hospital violated EMTALA, each case subjecting the hospital to potential civil monetary penalties and termination from Medicare and Medicaid.36 Family complaints that the hospital "discharged grandma too soon" would now be investigated by CMS. Plaintiff attorneys would file a complaint with CMS and let CMS conduct an intensive investigation, crawling all over the hospital for three days at significant cost of both time and money to the hospital but none to the attorney, and later obtain all of CMS's materials under the Freedom of Information Act.
Duty to accept transfers EMTALA's non-discrimination requirement. If the Supreme Court upholds the Sixth Circuit's interpretation, it would also void CMS's 2008 regulation holding that hospitals are not required to accept inpatients in transfer from other hospitals.37 Neither side to the case notes this key issue, which could be a huge burden to academic and tertiary hospitals. If EMTALA continues through admission until discharge, CMS loses its basis for claiming that hospitals do not have to accept inpatients with an EMC in transfer.38,39
Presently, under CMS's regulations, a higher-level hospital can refuse to accept an inpatient with an emergency condition in transfer solely on account of insurance status, which is exactly the type of economic discrimination that EMTALA was originally enacted to prevent.
Consistency of interpretation of federal law EMTALA. The primary reason the court may accept the case is to resolve a split in interpretation of the law by the circuit courts of appeal. The court can't allow one interpretation of federal law for the 6th circuit states of Michigan, Ohio, Kentucky, and Tennessee and a radically different interpretation for every other state in the country. There is already way too much inconsistency in interpretation and enforcement by the ten regional offices of CMS; but the liability consequences are much greater for hospitals in the civil area than in the regulatory arena.
Authority of CMS. The court needs to settle the issues of whether CMS's regulation on application to inpatients is valid and whether it applies retroactively. Not precisely before the court, but which may be determined by implication, is whether CMS's regulation stating that other hospitals don't have to accept inpatients with emergency conditions in transfer is a valid interpretation of EMTALA's transfer acceptance requirement. Is an accepting hospital's duty under the law independent from the sending hospital's duties under the law, or is it contingent on the sending hospital's duties?
Should the Supreme Court hear the case? Absolutely, to finally settle all the major issues enumerated above after 25 years of ambiguity. Hospitals and physicians, but particularly hospitals, desperately need definitive "bright lines" on when EMTALA does or does not apply. Patients need to access to emergency specialty care; will EMTALA protect them from economic discrimination?
The most desired outcome may be for the Supreme Court accept the case, and decide that EMTALA does indeed end at the time of admission for the admitting hospital, but that other hospitals still have an independent duty to accept medically indicated transfers of inpatients who have an emergency condition that the admitting hospital is unable to stabilize.
That way EMTALA's reach is consistent with Congress's intent to prohibit economic discrimination against patients in the throws of an emergency, but not usurp state malpractice laws entirely and create a general federal malpractice act. Admitted patients would still be protected by state laws and other Medicare laws, since admission establishes a hospital-patient and physician-patient relationship and the attached legal duties of those relationships.
Moses would still have her day in court to prove the physicians / negligently discharged the patient under ordinary malpractice laws, or to prove under EMTALA that the physicians / hospital did not act in good faith to stabilize (or economically "dumped") the patient during his inpatient stay.
1. Bitterman RA. EMTALA ends once patient is 'admitted' to the hospital. ED Legal Letter 2008;19:121-125.
2. Bitterman RA, Fish MB. Sixth Circuit: Admission to the hospital does not end EMTALA liability. ED Legal Letter 2009; 20:73-76.
3. Thornton v. SW Detroit Hospital, 895 F.2d 1131 (6th Cir. 1990).
4. Lopez-Soto v. Hawayek, 175 F.3d 170 (1st Cir. 1999).
5. Roberts v. Galen of Virginia, 525 U.S. 249 (1999). The Supreme Court held that no illicit motive was necessary for a hospital to violate EMTALA's stabilization requirement; it is a pure objective determination.
6. 68 Fed. Reg. 53,221-53264 (Sept. 9, 2003).
7. 67 Fed. Reg. 31506-31507 (May 9, 2002). The CMS proposed EMTALA regulations that were the precursor for the final regulations of 2003.
8. 42 CFR 489.24(a)(1)(ii) and (d)(2).]
9. 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).
10. 68 Fed Reg 53244-5.
11. 42 C.F.R. § 489.24(d)(2)(i). The 2003 regulation provides in part as follows: ... (2) Exception: Application to inpatients. (i) If a hospital has screened an individual under paragraph (a) of this section and found the individual to have an emergency medical condition, and admits that individual as an inpatient in good faith in order to stabilize the emergency medical condition, the hospital has satisfied its special responsibilities under this section with respect to that individual.
12. Hussain v. Kaiser Foundation Health Plan, 914 F. Supp. 1331 (E.D.Va. 1996).
13. Scott v. Hutchinson Hosp, 959 F Supp 1351 (D.Kan. 1997); See also Dollard v. Allen, 260 F.Supp. 2d 1127 (D. Wyo. 2003).
14. Haight v. Robertson et al, 2008 U.S. Dist. LEXIS 30262 (N.D. Ind. March 31, 2008).
15. Quinn v. BJC Health Sys, et al, 364 F.Supp.2d 1046 (E.D. MO. 2005); Lopes V. Kapiolani Med. Ctr. for Women & Children, 410 F. Supp. 2d 939 (D. Haw. 2005).
16. Prickett v. Hot Spring County Med. Ctr. et al, 2007 U.S. Dist. LEXIS 76954 (W.D. Ark. October 5, 2007).
17. Hoffman v. Tonnemacher, 425 F. Supp.2d 1120, 1130 (E.D. Cal. 2006).
18. 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.
19. Anderson v. Kindred Hospital, U.S. Dist. LEXIS 23162 (E.D. Tenn. March 24, 2008).
20. Preston v. Meriter, 747 N.W.2d 173 (Wisc. App. Jan. 24, 2008)
21. Moses v. Providence Hosp. and Med. Ctrs., Inc., 561 F.3d 573 (6th Cir. April 2009).
22. See Gutwald TC. EMTALA's muddy waters: Making hospitals sing the blues. American Health Lawyers Association (AHLA) Connections. 2009;11:12-17.
23. Roberts v. Galen of Va., Inc., 111 F.3d 405 (6th Cir. 1997).
24. 42 USC § 1395dd(b)(1)(A) (2006). Citing Cleland v. Bronson Health Care Group, Inc, 917 F.2d 266 (6th Cir 1990).
25. 42 USC § 1395dd(c)(1) (2006).
26. Moses v. Providence Hosp. and Med. Ctrs., Inc., 561 F.3d 573 (6th Cir. April 2009), order denying rehearing en banc, 573 F.3d 397 (6th Cir. July 2009) (dissent of Judge Richard Griffin).
27. 42 U.S.C. § 1395dd(e)(4). Transfer definition.
28. Moses v. Providence Hosp. and Med. Ctrs., Inc., appeal docketed, No. 09-438, at Jan. 15 & 22, 2010 (U.S. Supreme Court, Oct. 15, 2009), available at http://origin.www.supremecourtus.gov/docket/09-438.htm.
29. Moses v. Providence Hosp. and Med. Ctrs., Inc., appeal docketed, No. 09-438, at Jan. 25, 2010 (U.S. Supreme Court, Oct. 15, 2009), available at http://origin.www.supremecourtus.gov/docket/09-438.htm.
30. Brief for Petitioner, Moses v. Providence Hosp. and Med. Ctrs., Inc., petition for cert. filed, No. 09-438 (U.S. Supreme Court, Oct. 15, 2009), available at http://www.scotusblog.com/wp-content/uploads/2010/01/09-438_pet.pdf.
31. Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 744 (1996).
32. Brief of Respondent, Moses v. Providence Hosp. and Med. Ctrs., No. 09-438 (U.S. Supreme Court, Dec. 16, 2009), available at http://www.scotusblog.com/wp-content/uploads/2010/01/ 09-438_bio1.pdf.
33. Lopez-Soto v. Hawayek, 175 F.3d 170 (1st Cir. 1999).
34. Motion for Leave to File and Brief of Michigan Health and Hospital Association, No. 09-438 (U.S. Supreme Court, Nov. 12, 2009), available at http://www.scotusblog.com/wp-content/uploads/2010/01/09-438_amicus-Michigan-Health-Hospital-Association.pdf.
35. 42 U.S.C. § 1395dd(d)(2).
36. 42 U.S.C. § 1395dd(d)(1).
37. 73 Federal Register 48,654 – 48,668 (August 19, 2008).
38. 42 U.S.C. § 1395dd(g) (2006).
39. Bitterman RA. Inpatient transfers and community on-call programs: New rules finalized. ED Legal Letter 2008;19:109-112.