EMTALA may be at odds with appropriate treatment

By Gregory F. Reis, JD

Adams, Hill, Reis, Adams, Hall & Schieffelin

Orlando, FL

In October 1992 at a Virginia hospital, "Baby K." was born with anencephaly, a congenital malformation in which a major portion of the brain, skull, and scalp are missing. Her brain stem provides autonomic function and reflex action, but because she lacks a cerebrum, she is permanently unconscious and has no cognitive abilities or awareness. She cannot see, hear, or otherwise interact with her environment. Her condition cannot be improved by medical treatment, and she will remain in this state for life. According to her treating doctors, most anencephalic infants die within a few days of birth, because of respiratory difficulties and other complications.

At birth, Baby K. was placed on a mechanical ventilator because she had difficulty breathing on her own. This respiratory support provided time for the doctors to confirm the diagnosis and for her mother to understand fully her baby's diagnosis and prognosis. Her doctors recommended she only be provided with nutrition, hydration, and warmth, since aggressive treatment would serve no therapeutic or palliative purpose.

The mother disagreed and insisted that Baby K. receive mechanical breathing assistance when needed, even though the doctors contended such care was inappropriate. Because of this disagreement, attempts were made to transfer Baby K., but none of the other area hospitals with pediatric intensive care units would accept her.

In November 1992, Baby K. no longer needed the services of an acute care hospital and was transferred to a nursing home.

Later, Baby K. was readmitted to the hospital several times because of breathing difficulties. Each time, breathing assistance was provided and after stabilization, she was discharged to the nursing home. After the second admission, the hospital -- as agreed by Baby K.'s father and guardian ad litem but opposed by her mother -- sought a declaratory judgment from the courts, to allow the hospital to refuse respiratory support or other aggressive treatments. In other words, the hospital went to court to resolve its obligation to provide emergency medical treatment that it deemed medically and ethically inappropriate.

The court denied the hospital's request. The hospital appealed to the United States Fourth Circuit Court of Appeals, which upheld the trial court's ruling on the basis of EMTALA.

The hospital advanced the following four arguments for not providing Baby K. with respiratory support. The Fourth Circuit disagreed with all four arguments, finding that respiratory treatment was required for Baby K. under EMTALA.

Argument 1. EMTALA only requires hospitals to provide uniform treatment to all patients with the same emergency condition. Therefore, as long as the hospital provided Baby K. with the same treatment it would provide other anencephalic infants (supportive care in the form of warmth, nutrition, and hydration), it would not be violating the act.

In response to this argument, the court differentiated "screening" from "treatment," saying the act requires "uniform screening" to all individuals requesting treatment at a hospital emergency department (ED) and stabilizing treatment to prevent material deterioration of any emergency medical condition revealed by the screening.

Even assuming the hospital were required only to provide uniform treatment, the court held that because Baby K. had resided at the nursing home with anencephaly for several months without emergency medical treatment, the emergency medical condition was not anencephaly, but rather the respiratory distress. Therefore, the hospital was required to provide Baby K. with the same stabilizing treatment (respiratory support) it provided all other patients presenting with respiratory distress.

Argument 2. Because of anencephalic infants' extremely limited life expectancy and the futility of any treatment of their condition, the prevailing standard of medical care is to provide only warmth, nutrition, and hydration. Thus, mechanical ventilation exceeds the prevailing standard of medical care.

The court ruled the language of the act does not provide exceptions to the requirement for stabilizing treatment when such treatment exceeds the prevailing standard of medical care or is even considered morally or ethically inappropriate. The court recognized the dilemma of this situation, but considered itself bound by the plain language of the act.

Argument 3. Virginia law allowed physicians to refuse to provide medical care determined to be medically or ethically inappropriate; therefore EMTALA should not require such treatment.

Here, the court reiterated its view that EMTALA does not provide an exception for stabilizing treatment deemed medically or ethically inappropriate; therefore, federal law overrides Virginia law.

Argument 4. EMTALA applies only to patients transferred from a hospital in an unstable condition, and because Baby K. was not transferred, EMTALA was not applicable.

The court found this argument to be without merit because it would allow hospitals and physicians to avoid liability under EMTALA simply by accepting and screening a patient, then refusing to treat the patient because the patient cannot or will not be transferred.

[In the Matter of Baby "K," 16 Fed.3d 590 (4th Cir. 1994).]

Background

Under the 1986 Emergency Medical Treatment and Active Labor Act (EMTALA) (42 U.S.C. § 1395dd), any hospital participating in Medicare must provide medical screening to all patients
presenting to the emergency department. If an emergency medical condition is found, stabilizing treatment or an appropriate transfer is required. The purpose of the act is to prevent hospitals from refusing to treat people with emergency medical conditions who might not be able to pay, a practice generally referred to as "patient dumping."

To enforce these requirements, the act provides administrative sanctions, including severe financial penalties, as well as private rights of action by aggrieved patients.

Although the original intention of EMTALA was to prevent patient dumping, its scope, as written, is so vast that the litigation explosion predicted early on by many legal experts is starting to occur. Court rulings have been inconsistent and seem to ignore the original intent of the law. In this issue are cases and commentaries pertinent to health care risk managers. *

Considering the Baby K. case had nothing to do with patient dumping, it may seem senseless that EMTALA can require treatment even when it is not consistent with the prevailing standard of care or is considered medically or ethically inappropriate. Because of its seemingly illogical result, this case has critical implications for risk managers.

ED health care providers need to understand that if an emergency medical condition exists, stabilizing treatment. Develop policies and procedures consistent with this requirement and review them periodically with regard to any new developments in the law.

When caregivers are in doubt, they should provide treatment. In the meantime, the hospital should consult with the family and with legal counsel knowledgeable about EMTALA and the ever-changing case law.

The potential penalties for violating EMTALA can be financially devastating to a hospital, including fines and loss of Medicare funding. As risk manager, it is critical for you to keep abreast of the developing EMTALA law, make sure the hospital's policies and procedures promote compliance, and ensure that ED physicians, consulting physicians, and hospital staff are informed. *