Texas Emergency Physician Sues Hospital in EMTALA Whistleblower Claim

By Robert A. Bitterman, MD, JD, FACEP, Contributing Editor, ED Legal Letter

A U.S. District Court in Texas allows a physician's retaliation claim against the hospital that allegedly terminated his privileges for reporting violations of the Emergency Medical Treatment and Labor Act (EMTALA).

The Case of Dr. Walter Zawislak v. Memorial Hermann Hospital System1

Memorial Hermann Hospital suspended the medical staff privileges of Dr. Zawislak, purportedly for substandard care, and reported the adverse action to the National Practitioner Data Bank (NPDB). Consequently, his employer, Team Health, terminated his contract to work at Memorial Hermann.

Dr. Zawislak claimed that the hospital rescinded his clinical privileges in retaliation for disclosing and reporting EMTALA violations committed by the hospital. He alleged that two unstable emergency department (ED) patients were transferred from Memorial Hermann to another trauma center because Memorial Hermann's trauma surgeon on-call was either unavailable or unqualified to manage the patients' injuries. He reported the trauma surgeon's conduct to the ED medical director and the hospital's "Root Cause Analysis Committee."

Unable to work out his differences with the hospital, Dr. Zawislak sued Memorial Hermann under EMTALA's whistleblower provision for money damages and equitable relief, and also filed a state law claim of defamation against the hospital for publishing in the NPDB that it took an adverse action against his clinical privileges for the reason of providing substandard care.

The hospital asked the court to dismiss Dr. Zawislak's claim of defamation arising from the NPDB report because he failed to exhaust his administrative remedies with the Department of Health & Human Services (HHS — the agency responsible for the physician data bank); and/or because it was immune from suit under the Health Care Quality Improvement Act ("HCQIA").

Memorial Hermann also petitioned the court to dismiss the EMTALA claim, contending that Dr. Zawislak did not qualify as a whistleblower under EMTALA's anti-retaliation provision.

The Court's Opinion1

1. "Exhaustion." The hospital argued that Dr. Zawislak did not follow the procedures set out in the applicable federal regulations2 to dispute the accuracy of Memorial Hermann's report to the NPDB. The HHS permits a physician to dispute the accuracy of an NPDB report by filing a written dispute with the Secretary of Health and Human Services within 60 days of receiving the report.2 Dr. Zawislak first asked Memorial Hermann to retract its report, then waited another 120 days before he sent a dispute letter to HHS. Therefore, the court determined that Dr. Zawislak did not follow the procedures set out in the regulations.1

However, the court noted that the HHS regulatory language is permissive, not mandatory, providing that a physician "may" dispute the accuracy of a report by requesting a revision of the report.2,3 Thus, disputing the accuracy of the report with the Secretary of Health and Human Services is not a prerequisite to filing suit.1

The court also pointed out that Dr. Zawislak did not actually seek correction of the report. Instead, he complained of damages he suffered as a result of the hospital's already filed report.

Therefore, since the procedures under the regulations4 only provide for the correction of a report, the Court held that Dr. Zawislak did not have to resort to or "exhaust" administrative remedies before filing suit.1

2. Immunity Under the Healthcare Quality Improvement Act (HCQIA). Congress passed the HCQIA to provide for effective peer review and nationwide monitoring of incompetent physicians. Congress also provided qualified immunity for peer-review contributors to encourage them to participate in the process.5,6

For immunity to apply under the HCQIA, the "professional review action"7 must be taken:

(1) in the reasonable belief that the action was to further quality health care;

(2) after a reasonable effort to obtain the facts of the matter;

(3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances; and

(4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3) [above].8

The hospital is presumed to have complied with each of the four elements of the law, unless the physician can rebut the presumption by a preponderance of the evidence.8 Here, the court was convinced that Dr. Zawislak's allegations were sufficient to suggest that the hospital failed to make a "reasonable effort to obtain the facts." First, the peer-review committee did not even consider the actions of the on-call trauma physicians or Dr. Zawislak's treatment of the patients at issue. Second, since Dr. Zawislak claimed that the hospital suspended his privileges in retaliation for reporting the on-call physicians at Memorial Hermann for transferring unstable patients in violation of EMTALA, the jury could find that the hospital's decision to transfer the patients was not based on considerations for quality health care, but was instead intended to protect Memorial Hermann's on-call physicians and other hospital personnel.1 Therefore, the court rejected the hospital's plea that it was immune from suit under the HCQIA.

It also is worth noting that even if the court granted the hospital HCQIA immunity, it would not totally defeat Dr. Zawislak's EMTALA claim of retaliation. Dr. Zawislak sought both compensatory money damages and equitable relief under the EMTALA count of his complaint. But the HCQIA confers immunity only from liability for money damages; it does not protect hospital defendants from suits for other forms of relief, such as equitable relief.9,10 Examples of equitable relief would be the court requiring the hospital to reinstate the physician's privileges, or require the hospital to correct the NPDB report, notwithstanding the procedural requirements of HHS's regulations.

3. EMTALA Whistleblower Claim. If a physician or hospital employee qualifies as a whistleblower, he or she can sue the hospital for any personal harm suffered as a direct result of the hospital's violation of the whistleblower provision or any other requirement of the statute.11 The damages available under such an EMTALA lawsuit are those damages available for personal injury under the law of the state in which the hospital is located, and such "equitable relief" as is appropriate.11

Memorial Hermann contended that Dr. Zawislak was not a whistleblower according to EMTALA and, therefore, could not sue the hospital under EMTALA.1

EMTALA's federal whistleblower provision only protects physicians and hospital employees from retaliation by a Medicare-participating hospital for two types of actions.12 A hospital may not penalize or take adverse action:

• against a physician (or a qualified person acting at the direction of a physician) because the physician refuses to authorize the transfer of an individual with an emergency medical condition that has not been stabilized; or

• against any hospital employee because the employee reports a violation of a requirement of this section (EMTALA).

The Centers for Medicare and Medicaid Services (CMS — the federal agency within HHS charged with the interpretation and enforcement of EMTALA) regulations on this issue simply parrot the statute.13 However, CMS' interpretive guidelines expand the interpretation to add that a hospital employee reporting an alleged violation of EMTALA is also protected by the regulation.14

Hermann Memorial first argued that because Dr. Zawislak did not allege that he refused to transfer any unstable emergency room patients, he did not fall within the first class of individuals protected by the statute. Dr. Zawislak claimed there were two occasions in which unstable emergency room patients were transferred to other trauma centers because the hospital's on-call trauma surgeon refused or was unqualified to treat the patient's injuries. He did not claim on either occasion that he refused to transfer the patients. In one instance, he stated that he "challenged" the on-call physician's transfer orders, but, nevertheless, he still transferred the patient to another trauma center. Therefore, the court held that Dr. Zawislak did not fall within the first class of whistleblowers because he failed to allege a situation in which he refused to authorize the transfer of an unstable patient.1

Next, the hospital argued that Dr. Zawislak was clearly not a hospital employee, since he was employed by Team Health, the company which held the ED contract and, therefore, he did not fall within the second class of protected individuals.1

But it was not so straightforward. First, the court could not identify any HHS/CMS regulations or case precedent construing the meaning of "employee" in the EMTALA whistleblower provision.1 Second, the court couldn't buy the notion that because the law affirmatively prohibits hospitals from taking adverse action against "any hospital employee," it would impliedly allow hospitals to take adverse action against members of its own medical staff who observed and reported EMTALA violations. That interpretation would seem to contradict the very purpose of EMTALA, so the court ruled that, "The legislative purpose of the statute is best served by construing it to prohibit participating hospitals from penalizing physicians with hospital privileges."1

The court noted that, "Physicians in the hospital's 'emergency room,'" [courts seem to have a problem saying "emergency physicians"], "have an advantageous position to observe whether a hospital is encouraging and instructing physicians to dump patients."1 Accordingly, the court determined that EMTALA's whistleblower provision must be construed to include physicians with hospital privileges within the definition of "hospital employee," and it denied the hospital's motion to dismiss Dr. Zawislak's EMTALA claim.1,15

Additional Comments

Interestingly, the hospital didn't question whether Dr. Zawislak actually "reported" the alleged EMTALA violations in the manner intended by the statute. He reported the incidents to his ED medical director and the hospital's "Root Cause Analysis Committee." "Reporting" EMTALA violations typically means providing the information to the federal agency charged with enforcing EMTALA, which is CMS (or via the state agency that serves as the survey agent for CMS in that state). There is no case decision on this issue, and CMS' regulations and interpretive guidelines do not address it either, although there is one regulation that requires a hospital to report to CMS or the state survey agency a transfer violation if the hospital receives an inappropriate transfer of an unstable patient.16

There have been other EMTALA whistleblower cases. For example, in the case of O'Connor v. Jordan Hospital, a nurse and 38-year veteran employee of the hospital alleged she was fired for reporting an EMTALA violation by her hospital to the Massachusetts Department of Public Health, which is the state survey agency responsible for EMTALA investigations for CMS in Massachusetts.17 She informed federal authorities that the hospital transferred a diabetic woman who was 6 months pregnant with twins to another hospital 26 miles away without first performing a medical screening exam. The patient suffered serious complications after an emergency C-section on arrival at the second hospital.

Allegedly, Ms. O'Connor consulted the hospital's attorney prior to reporting.17 The attorney told her to "self report" before the hospital that received the transfer reported them, as it would be required to do under CMS regulations16 or face termination from Medicare itself for failure to report the transferring hospital.18

CMS subsequently conducted a full-scale review of the hospital's EMTALA compliance that confirmed the inappropriate transfer violation as reported, and found four additional EMTALA violations as well, exposing the hospital to potential termination from Medicare and $250,000 in civil monetary penalties. The same day CMS' investigators showed up, the hospital fired nurse O'Connor, only six months after she reportedly received an exemplary performance evaluation.17,19

In the O'Connor case, the elements required in the EMTALA whistleblower provision were clear: she was definitely an employee of the hospital and she reported the case to the proper governmental authorities.17

In another case, Ritten v. Lapeer Regional Medical Center (LRMC), a Michigan obstetrician also brought an EMTALA retaliation claim. Dr. Ritten alleged his staff privileges were summarily suspended because he refused to transfer a patient with an emergency condition that had not been stabilized, in violation of EMTALA, which fits nicely into the first category of protected actions in EMTALA's whistleblower clause.12,20

The patient in question arrived at LRMC's emergency department and was promptly triaged to the hospital's labor and delivery unit. She was 20 weeks pregnant with vaginal bleeding and moderate cramping. Dr. Ritten examined the patient (performed the hospital's EMTALA-mandated medical screening examination) and determined her membranes had ruptured and that she was in labor. He deemed the proper treatment was to evacuate the uterus.

Somehow the hospital CEO, Mr. Barton Buxton, got involved and allegedly suggested transferring the patient to another facility, ostensibly because it was against hospital policy to "perform an abortion." Dr. Ritten responded that an abortion was "inevitable" because "the baby's not viable" and the patient's membranes were "already ruptured."20 The hospital's chief nursing officer then asked another obstetrician to examine the patient, and that obstetrician determined the membranes were not ruptured, just "hourglassing," and that the patient was not in labor and could be transferred.20

After this, Mr. Buxton allegedly told Dr. Ritten that he wanted the patient transferred out, and then threatened Dr. Ritten with loss of his job if he didn't do so. Dr. Ritten protested against the transfer, allegedly advising Mr. Buxton that "she's not stable for transfer" and could "deliver at any point in time."20 Nevertheless, Dr. Ritten did contact another hospital to discuss transferring the patient, but was told that the patient would not be accepted in her present condition, as described by Dr. Ritten. Mr. Buxton then called the other hospital himself, stating that another LRMC obstetrician had reached a different conclusion, and that he'd have that physician call to report her findings for possible transfer. The patient went into active labor before the second obstetrician could call, and the patient delivered not long after, but the baby did not survive.20

As in the Zawislak case, the hospital and its CEO claimed immunity under the HCQIA, which the court quickly denied, stating, "Taking the allegations as true, no inferences would be required to conclude that Plaintiff's refusal to transfer the patient 'was a motivating factor' in Buxton's decision to suspend his privileges."20

They also claimed that Dr. Ritten was wrong about whether the patient, in fact, had an emergency medical condition and whether the patient was unstable for transfer. The court held that whether Dr. Ritten was right or wrong was irrelevant to his EMTALA retaliation claim. He clearly had a "reasonable and good faith belief that the opposed practices were unlawful."20

Moreover, the court stated, "A hospital is not free to discount a physician's reasonable evaluation and then retaliate against the physician with impunity, on the ground that it did not accept or agree with the physician's stated finding of an emergency medical condition."20

Conclusions

Litigation under EMTALA's whistleblower provision is still in its infancy. It remains to be conclusively determined when physicians will qualify as a hospital "employee" for purposes of protection under the law, and exactly what constitutes a proper "reporting" of an alleged EMTALA violation to trigger the whistleblower protection. Furthermore, it behooves physicians to know that not all refusals to partake in a hospital's violations of the law are protected; only the refusal to authorize an unstable transfer is covered under the EMTALA whistleblower umbrella.

References

1. Walter Zawislak v. Memorial Hermann Hosp. Sys., No. H-11-1335 (S.D. Tex. Oct. 26, 2011).

2. 45 C.F.R. § 60.16(b).

3. See also 42 U.S.C. § 11136; Congress specifically authorized the Secretary of HHS to "promulgate by regulation... procedures in the case of disputed accuracy of the information."

4. 45 C.F.R. § 60.16.

5. See 42 U.S.C. § 11111(a).

6. See Poliner v. Texas Health Sys., 536 F.3d 368 (5th Cir. 2008).

7. 42 U.S.C. § 11151(9). The HCQIA defines a "professional review action" as an action or recommendation of a professional review body which is taken or made in the conduct of professional review activity, which is based on the competence or professional conduct of an individual physician (which conduct affects or could affect adversely the health or welfare of a patient or patients), and which affects (or may affect) adversely the clinical privileges, or membership in a professional society, of the physician."

8. 42 U.S.C. § 11112(a).

9. 42 U.S.C. § 11111(a).

10. See also Singh v. Blue Cross Blue Shield of Massachusetts, Inc., 308 F.3d 25, 44 (1st Cir. 2002).

11. 42 U.S.C. § 1395dd(d)(2)(A).

12. 42 U.S.C. 1395dd(i).

13. 42 C.F.R. 489.24(e)(3).

14. CMS State Operations Manual (SOM), Appendix V — Interpretive Guidelines — Responsibilities of Medicare Participating Hospitals in Emergency Cases – EMTALA, Effective May 29, 2009; revised July 16, 2010. Available at: http://www.cms.hhs.gov/manuals/Downloads/som107ap_v_emerg.pdf. See Tag A-2401.

15. To support its position, the Texas court cited a U.S. Supreme court case which stated: "In rare cases where application of the literal terms of the statute will produce a result that is 'demonstrably at odds with the intentions of its drafters,' those intentions must be controlling." Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (1982).

16. 42 C.F.R. 489.20(m).

17. Margaret O'Connor v. Jordan Hospital, et al, Case #1:10-cv-11416-MMB (D.Ct. Mass. Dec. 9, 2011) (amended complaint filed December 9, 2011).

18. 42 C.F.R. 489.53(a).

19. See also Davis, Caralyn: Fired Nurse Files Whistleblower Lawsuit re: EMTALA Violations. Available at: http:/www.fiercehealthfinance.com/story/fired-nurse-files-whistleblower-lawsuit-re-emtala-violations/2010-08-18

20. Ritten v. Lapeer Regional Medical Center, 611 F.Supp.2d 696 (E.D. Mich. 2009).