Courts continue to limit COBRA liability for prehospital destination decisions

By Catherine Harris

The family of a Honolulu man who died after his ambulance was rerouted from one hospital to another facility does not have grounds to sue under EMTALA because the patient never physically presented to the first hospital’s emergency department (ED), states a recent Hawaii district court ruling.

According to court documents in the case of Arrington v. Wong, 59-year-old Harold Arrington was on his way to work when he began to have trouble breathing. An ambulance was called to the scene, and paramedics found Arrington in "severe respiratory distress." The decision was made to transport him to Honolulu’s Queen’s Medical Center. En route, the paramedics sought medical advice from the emergency room physician at Queen’s. During the conversation, paramedics mentioned that Arrington was a "Tripler patient," meaning he was a patient at a nearby hosptial. The emergency physician then advised paramedics that, "if you start with nitro and oblasics, then I think it would be OK to go [to the other hospital]." The patient was taken to the other facility, where he "coded" and was unable to be revived.

His family sued Queen’s, the emergency room physician, the physician’s medical group, the city and county-owned ambulance service, and the attending emergency medical technicians under EMTALA.

This federal law requires hospitals to provide an appropriate medical screening examination sufficient to rule out an emergency medical condition to any patient who "comes to" the hosptal’s ED. Furthermore, EMTALA requires hospital personnel to ensure that any emergent condition of any patient who has "come to" the hospital be stabilized before transfer to another facility.

Arrington did not meet the definition of "coming to" the hospital even though he was in an ambulance that was on its way to the hospital, and, therefore, his family could not sue on EMTALA grounds, the court found.

Ruling Reinforces Prior Decision

There has already been a landmark legal decision in this area, and the Arrington case just strengthens that decision, states Robert Bitterman, MD, JD, Director of Risk Management and Managed Care in the Department of Emergency Medicine at Carolinas Medical Center in Charlotte, NC.

In a 1992 case, Johnson v. University of Chicago, a mother sued the local hospital that operated a service directing ambulances to various area hospitals after they directed the ambulance carrying her daughter to a hospital more distant than the others, where the girl died.

The case is unusual in that the U.S. Court of Appeals for the Seventh Circuit first ruled against the hospital, then reversed itself, ruling that, because the girl had not actually been physically present in the hospital, the case did not meet the standard to sue under EMTALA, says Bitterman.

The U.S. Court of Appeals for the Ninth Circuit, which covers Hawaii, has not addressed this question of law, but the district court cited the Seventh Circuit’s decision in its ruling.

"The Seventh Circuit upheld the dismissal of the EMTALA claim because of its conclusion that, under the plain meaning of the statute, the child never came to’ the emergency department," the decision states.1

In its ruling, the district court also cited a 1994 ruling from the Fifth Circuit, in Miller v. Medical Center of Southwest Louisiana, which found that a patient was denied admittance to the hospital over the phone but never presented to the emergency room in question. The appeals court for that circuit also ruled that the plaintiff had not met the standard for "coming to" the emergency department.

EMTALA Not Intended to Cover Medical Decisions

The decision in this case is encouraging because it continues to show that the courts are willing to limit EMTALA liability to cases that concern a diversion of patients due to financial concerns, says James Augustine, MD, FACEP, Chief Executive Officer of Premier Health Care Services, an emergency medical practice group based in Dayton, OH.

"EMTALA was intended to prevent hospitals from sending out indigent patients to other hospitals," he emphasizes. "These cases are not patient-dumping issues. It gets into local protocols for medical direction."

For example, it is legitimate for a hospital to go on "ambulance bypass," refusing to receive patients by ambulance when they believe they are too busy to care for them properly. It is also common for an ambulance under the medical supervision of one hospital’s ED to pick up a patient who requests to be taken to the hospital where he normally receives medical care, he explains.

"In those cases, the paramedics will communicate by telephone with the [ED] physician, get the OK to go [to the other facility], and get instructions about medications and care," he notes. "It is appropriate medical practice."

The plaintiff’s bar has shown an inclination to take cases to court under EMTALA and attempt to stretch its protections far beyond what Congress originally intended, he contends.

There have been cases where a person has filed an EMTALA claim after they were treated in the ED, admitted to the same hospital, moved upstairs to an inpatient bed, then had a poor outcome, he says. "They file a claim saying that the patient was not properly stabilized in the ED and that’s a violation of COBRA."

Impact on EMS and Managed Care

Rulings in this area may have a substantial impact on the move by many medical groups to integrate transportation services into their group practices.

Ideally, through these integrated arrangements, an ambulance could pick up a patient, evaluate his or her condition (using medical guidance from supervising emergency room providers), then either take them to the ED, treat them at the scene, or redirect the patient to a lower level of care.

If managed correctly, these arrangements could save health plans and health providers thousands, while improving patient care at the same time, Augustine notes.

Premier is working on establishing such a system in the Dayton area.

Many health plans, including those administered by the federal government, already attempt to direct patients to certain medical facilities and levels of care, Augustine notes.

For example, in the Dayton area there is a Veterans Administration hospital. In many cases, ambulances will pick up a veteran who requests to go to the VA facility.

"They have had it drilled into them that they are supposed to go to that hospital for their wound care, for everything else," Augustine says. "They get very upset if you just bring them to the nearest hospital."

It should be up to the medical community to ensure ways of getting patients to the medical facilities that provide care covered by their health plans, yet do so in a safe and medically accepted manner, he states.


1. Arrington v. Wong, D. Haw. 98-00357 DAE 9/23/98.