Does EMTALA Really End When a Hospital Admits an ED Patient?
By Robert A. Bitterman, MD, JD, FACEP Contributing Editor
The courts don’t always agree with or follow the Centers for Medicare & Medicaid Services’ interpretation that EMTALA ends once an emergency department patient with an emergency condition is admitted to the hospital in good faith for stabilizing treatment.
For over 20 years now, the issue of whether EMTALA applies to hospital inpatients has been in a state of flux and vigorously debated.1 The Centers for Medicare & Medicaid Services (CMS), which interprets and enforces EMTALA for the government, went through numerous gyrations and iterations before eventually declaring in 2003 that EMTALA ended once an ED patient was admitted to the hospital.2 In 2008, it reexamined the issue and confirmed its position.3
There were three basic reasons behind CMS’ decision. First, EMTALA was meant to attach a duty to treat, a duty that was conspicuously absent under federal law and most state laws, and since admission established a doctor-patient relationship and a hospital-patient relationship subject to ordinary state malpractice law, EMTALA was no longer necessary. Second, Medicare’s conditions of participation protected all hospital inpatients, even if they were not insured under Medicare. And third, determining that EMTALA ended upon admission had the advantage of setting an unambiguous “bright line” for compliance, enforcement, and liability.2
However, and less well-understood by providers and the courts alike, CMS set two conditions on what has become known as the “admission defense” for hospitals — the patient must actually be formally admitted as defined by Medicare and the hospital must admit the patient in good faith for the purpose of stabilizing the patient’s emergency medical condition.4
The Patient Must Be Formally Admitted
The definition of “admitted” for the purposes of ending EMTALA is critically important for hospitals and physicians:
“Inpatient means an individual who is admitted to a hospital for bed occupancy for purposes of receiving inpatient hospital services as described in §409.10(a) of this chapter with the expectation that he or she will remain at least overnight and occupy a bed even though the situation later develops that the individual can be discharged or transferred to another hospital and does not actually use a hospital bed overnight.”4
This is the same definition as in the Medicare Hospital Manual, which is utilized for purposes of Medicare payment, so it is well known to hospitals.5
Although, note that outpatients who have been “admitted” to the ED or labor and delivery unit (L&D), or patients “admitted” to the hospital under “observation” status, do not meet CMS’ regulatory definition of “admitted.”4 Thus, EMTALA continues to apply to ED, L&D, and observation patients until they are stabilized or formally admitted to the hospital. For example, patients held in an ED chest pain unit or observation area continue to come under the umbrage of EMTALA. Similarly, if a hospitalist, an on-call physician, or the patient’s private attending writes the order “admit to OBS,” EMTALA continues to apply to the stabilization treatment of the patient. Observation patients have not been formally or legally admitted yet in the eyes of the government for purposes of EMTALA. The physical location of the patient within the hospital (ED, chest pain center, observation unit, fast-track area, inpatient unit, monitored bed, cath lab, radiology suite, ICU, etc.) isn’t what counts; it’s the legal status of the patient that matters — formally “admitted,” an “observation” patient, or still an ED/L&D outpatient.
The Admission Must Be in Good Faith
CMS was concerned that hospitals would attempt to circumvent EMTALA by admitting patients and then rapidly transfer those who were uninsured to reduce the cost of providing stabilizing care.6 Consequently, CMS imposed a qualifying factor in its regulation — the admission had to be made in “good faith” and not as a subterfuge to avoid the law.2
Therefore, admission is not an absolute defense to a failure to stabilize claim under EMTALA. Each case will be examined objectively under a facts-and-circumstances analysis to determine whether the hospital’s actions were in good faith. If CMS or a plaintiff can demonstrate that the person was admitted but later discharged or transferred for financial reasons (before stabilization), or as a ruse to avoid EMTALA’s duty to stabilize, then the hospital could still be held liable under the law.7
But Did the Courts Accept CMS’ Regulation that EMTALA Ended Upon Admission?
Yes, virtually all federal district and appellate courts accepted and upheld CMS’ interpretation as legitimate and legally binding.8 That is, until the 2009 6th Circuit case of Moses v. Providence Hospital.9,10 The 6th Circuit had twice before, in 1990 and in 1997, held that admission did not end EMTALA, but both of those cases occurred before CMS promulgated its EMTALA regulations in 2003.11 Nonetheless, in the Moses case, the 6th Circuit stuck to its previous interpretation and overruled CMS, giving no deference to the agency’s rule-making authority, nor credence to the myriad of other federal and state courts that had addressed the issue and affirmed CMS’ view that EMTALA ends upon admission.9 Instead, the 6th Circuit stated that CMS’ interpretation was contrary to the plain language of the EMTALA statute, which requires a hospital to “provide ... for such further medical examination and such treatment as may be required to stabilize the medical condition.”9
The court noted that emergency care “does not stop when a patient is wheeled from the emergency room into the main hospital.”9 Therefore, it held that EMTALA required the hospital to not just admit the patient into an inpatient unit for further care, but to actually provide sufficient treatment until the patient’s emergency condition was stabilized.9
The 6th Circuit’s controversial decision in Moses was appealed to the U.S. Supreme Court, but the high court declined to review the case and settle the dispute between the various circuits.12 Ironically, one of the 6th Circuit’s two earlier cases, Roberts v. Galen of Virginia, reached the U.S. Supreme Court, the only EMTALA case ever to do so.13 In Roberts, the 6th Circuit allowed the plaintiffs to sue the hospital under EMTALA for allegedly discharging a multiple trauma patient in an unstable condition after the patient had been in the hospital for eight weeks. One of the hospital’s arguments was that EMTALA was not meant to apply to inpatients or extended stays in the hospital. Unfortunately, the Supreme Court 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.”13
CMS Revisited the Issue of EMTALA’s Application to Inpatients — Again
In response to Moses and the Supreme Court’s decision to refuse to hear the case on appeal, in late 2010 CMS published an “advanced notice of proposed rulemaking” soliciting comments on whether it should rewrite the rules on the application of EMTALA to hospital inpatients.14 After re-re-re-examining the issue and considering copious comments submitted by the health care community, CMS held steadfast and reiterated early this year yet again its interpretation that EMTALA ends once a hospital admits the patient, in good faith, for stabilizing care.15
Nonetheless, even since CMS’ re-affirmation, the courts, attorneys, and hospitals remain all over the map with respect to understanding or applying CMS’ regulation, and in addition to the 6th Circuit, a few courts still refuse to accept it. Some of the more interesting court decisions all occurred in the past few months.
The Case of Money v. Banner Churchill Community Hospital16
Mr. Money was admitted to this Nevada hospital after presenting to the ED with chest pain. The hospital later determined he needed to be transferred, but before it could arrange the transfer, Mr. Money went into cardiac arrest and died. The family filed a wrongful death claim against Banner and also alleged the hospital failed to stabilize Mr. Money in violation of EMTALA. The hospital asserted the “admission defense,” stating that the patient was admitted to the hospital and, therefore, EMTALA ceased to apply, so the hospital couldn’t be liable for failure to stabilize the patient under EMTALA.16
The court found for the hospital, accepting the “admission defense” based solely on case law, holding that “EMTALA was not enacted to create a federal malpractice cause of action.”17 The court never even cited or addressed CMS’ regulation, and either the plaintiff didn’t raise the contrary opinion of the 6th Circuit in Moses or the court never considered it.
Most peculiar, though, was the obvious failure of the hospital to assert a clean-kill defense — the patient was never transferred! The duty to stabilize a patient under EMTALA only arises when the hospital actually transfers a patient with an emergency medical condition, and the definition of “transfer” under the law specifically excludes the movement of an individual who has been declared dead.18
It’s not a defense one should like to use often, but if the patient dies in the ED, the ICU, or anywhere on hospital property before transfer or discharge, there can never be a failure to stabilize claim against the hospital under EMTALA.
The Case of Liles v. TH Healthcare19
Mr. Liles presented to the ED at one of the defendant’s Texas hospitals with respiratory failure and was admitted. He claimed the hospital attempted to transfer him away on 18 separate occasions because he was uninsured. He also claimed that the hospital falsely certified he was stable for transfer, although he was never transferred to another facility because he went into cardiac arrest when the ambulance arrived to collect him. Eventually he was discharged from the hospital, only to return to the ED two days later when his condition deteriorated again.19
One of his many claims against the hospital was a “failure to stabilize” claim under EMTALA, contending that his discharge violated the law because his condition was unstable at the time of discharge. (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.)20
The hospital filed a motion to dismiss the claim, asserting that EMTALA didn’t apply since Mr. Liles was admitted to the hospital in good faith. However, the court ruled as a “matter of law,” based on the plain language of the statute, that EMTALA continues past admission until the patient is actually stabilized.21 The court quoted the 5th Circuit, which holds that a “hospital’s responsibility under the statute ends when it has stabilized the individual’s medical condition.”22
The court also stated that none of the cases cited by the hospital persuaded the court that an EMTALA claim was barred simply because a patient has been admitted to a hospital as a bona fide inpatient.23 One has to wonder what cases the hospital cited. Most quizzically, though, was that the hospital never cited CMS’ regulation to support its position.
Furthermore, the court stated that, “This statute’s application does not turn on the administrative status of the patient but on his or her medical status.”19 One could quibble with the court here, since technically the statute turns on the patient’s legal status, not his or her medical status — “stabilized” is a legal determination under EMTALA, not a medical determination.
In the end, the court held that the plaintiff provided sufficient facts to state a plausible claim that his condition was never stabilized before discharge (“transferred” home); therefore, the case was sent to the jury (the “trier of fact”) to determine whether the hospital’s actions violated EMTALA.
The Case of James v. Jefferson Regional Medical Center24
An unemployed Mr. James presented with suicidal ideation to this Missouri hospital’s ED and was admitted to the psychiatric ward, where he was “well known.” After a couple of fights, or “altercations,” with other patients, he was discharged the next day and dropped off at a shelter in downtown St. Louis. He alleged he was not provided any medication or stabilizing treatment required by EMTALA before discharge/transfer.24
The hospital asserted CMS’ regulations barred the EMTALA claim because the patient had been admitted. The plaintiff countered with the argument culled from the 6th Circuit in the Moses case. The court rejected the analysis of Moses, instead accepting CMS’ interpretation as rational, compatible with the purpose and text of EMTALA, and worthy of judicial deference. The court pointed out that in his complaint, Mr. James admitted that he had been admitted to the hospital and, therefore, his EMTALA protections ended upon admission.24
Interestingly, the issue of whether the admission was in “good faith” to stabilize his emergency condition was never raised by counsel or addressed by the court.
The Case of Lopez v. Contra Costa Regional Medical Center (CCRMC)25
Maybe the most interesting recent case is from a California federal court last month.
Ms. Lopez was “admitted” to the L&D to deliver her third child. She suffered serious complications, including pre-eclampsia, eclampsia, and HELLP syndrome. After delivery, her physicians ordered her to be transferred to the ICU. However, she never entered the ICU because it was full. Instead, she was “admitted” to another inpatient section of the hospital and ultimately died while still in the hospital.25
The family sued, claiming the hospital failed to stabilize Ms. Lopez’s emergency conditions.
Alternatively, the family argued that the hospital failed to transfer Ms. Lopez to another hospital, as required under EMTALA, which did have ICU capacity available.
The hospital asserted the CMS “admission defense” and pointed out that the plaintiffs admitted that the patient had been admitted in their complaint. The court ruled in favor of the hospital, finding CMS’ regulation to be controlling and, thus, leaving the plaintiff’s remedy to state malpractice law — not EMTALA.25
However, the court seemed to equate “admitted to the L&D unit” as “admitted to the hospital,” wholly not recognizing that admission to a dedicated emergency department, which includes L&D as well as the ED itself, does not satisfy CMS’ definition of “admitted” for purposes of EMTALA. It can’t be gleaned from the opinion whether the patient was really an outpatient in the L&D area, was “admitted to OBS” during the delivery period, or was actually formally admitted in compliance with CMS’ regulatory definition.
Furthermore, there is a very real issue of when the patient was “formally admitted.” If the legally sufficient admission order was the order to admit to the ICU, then there is a “good faith” argument regarding whether the admission to a non-ICU area, rather than transfer to another hospital ICU, was truly in “good faith.”
The court also rejected the family’s claim that the hospital violated EMTALA when it failed to transfer Ms. Lopez to another hospital’s ICU after discovering that its own ICU was full. The court held that EMTALA “does not establish a cause of action for failure to transfer an admitted hospital patient just because that patient originally was admitted to the hospital through the emergency room or the labor and delivery department.”25
But the court’s opinion relies on the premise that the patient was legally “admitted” to the hospital. Once a hospital diagnoses a patient with an emergency medical condition, it has a duty to stabilize the emergency condition or transfer the patient to a hospital that can stabilize the emergency. Admitting the patient to the hospital, assuming the “admission” meets CMS’ regulatory definition, constitutes an exception to the duty to stabilize, essentially cutting off any further EMTALA obligations of the hospital. However, if the hospital has not yet admitted the patient in good faith for purposes of stabilization, and it is unable to stabilize the emergency, then it does indeed have a duty to transfer the patient to a hospital that can stabilize the emergency. So the plaintiff’s claim should not have been rejected without analyzing whether the patient had already been admitted in compliance with CMS’ regulation.
Finally, note that once again the hospital failed to assert a dispositive defense. Since Ms. Lopez died in the hospital, she was never legally transferred; therefore, the hospital had no duty as a matter of law under EMTALA to provide stabilizing care. A “standard of care” duty under state law, yes; but not an EMTALA duty under federal law. Thus, whether she was “admitted” as defined by CMS, or whether that admission was in “good faith,” would not be relevant to her “failure to stabilize” claim under EMTALA.
The issue of whether EMTALA applies to inpatients is not yet settled law, although CMS’ regulation has moved the bar close to the finish line. There are two essential conditions that must be met before hospitals can use the CMS “admission defense” to avoid lawsuits under EMTALA for failure to stabilize a patient once the patient has been admitted. First, the patient must be formally admitted as defined by CMS; second, the admission must be in good faith; and it is absolutely critical that the medical record contain the appropriate supporting documentation.
Definitions matter — and they particularly matter a lot when dealing with EMTALA. Hospitals need to appreciate the distinction between “admitted to the ED or L&D” as an outpatient, “admitted to observation” status, and formally “admitted” to the hospital under the CMS Medicare definition.
1. See, for example, Bitterman RA. EMTALA ends once patient is “admitted” to the hospital — courts agree with CMS. ED Legal Letter 2008;19:121-125; Kamoie BE. EMTALA: Reaching beyond the emergency room to expand hospital liability. J Health Law 2000;33:25-48; Bitterman RA, Fish MB. Sixth Circuit: Admission to the hospital does not end EMTALA liability. ED Legal Letter 2009; 20:73-76; Gutwald TC. EMTALA’s muddy waters: Making hospitals sing the blues. American Health Lawyers Association (AHLA) Connections. 2009;11:12-17.
2. 68 Fed. Reg. 53,221-53,264 (Sept. 9, 2003).
3. 73 Federal Register 48,654-48,668 (Aug. 19, 2008).
4. 42 CFR 489.24; 68 Fed. Reg. 53,221-53264 (Sept. 9, 2003).
5. Medicare Hospital Manual, Section 210 (CMS Publication No. 10, 1989).
6. 67 Fed. Reg. 31506-31507 (May 9, 2002). The CMS proposed EMTALA regulations that were the precursor for the final regulations of 2003.
7. For example, see Morgan v. North Mississippi Med. Ctr., Inc., 458 F.Supp.2d (S.D. Ala. 2006); Anderson v. Kindred Hospital, U.S. Dist. LEXIS 23162 (E.D. Tenn. March 24, 2008); and Preston v. Meriter, 747 N.W.2d 173 (Wisc. App. Jan. 24, 2008).
8. E.g., Preston v. Meriter, 747 N.W.2d 173 (Wisc. App. Jan. 24, 2008); Anderson v. Kindred Hospital, U.S. Dist. LEXIS 23162 (E.D. Tenn. March 24, 2008); Haight v. Robertson et al, 2008 U.S. Dist. LEXIS 30262 (N.D. Ind. March 31, 2008); Quinn v. BJC Health Sys., et al, 364 F.Supp.2d 1046 (E.D. MO. 2005); Prickett v. Hot Spring County Med. Ctr., et al, 2007 U.S. Dist. LEXIS 76954 (W.D. Ark. October 5, 2007); Hoffman v. Tonnemacher, 425 F. Supp.2d 1120, 1130 (E.D. Cal. 2006).
9. Moses v. Providence Hosp. and Med. Ctrs., Inc., 561 F.3d 573 (6th Cir. 2009).
10. The 6th Circuit includes Michigan, Ohio, Tennessee, and Kentucky.
11. Thornton v. SW Detroit Hospital, 895 F.2d 1131 (6th Cir. 1990); and Roberts v. Galen of Va., Inc., 111 F.3d 405 (6th Cir. 1997).
12. Moses v. Providence Hosp. and Med Ctrs., Inc., 561 F.3d 573 (6th Cir. 2009), certiorari denied, No. 09-438, 2010 WL 255241 (U.S. June 28, 2010). http://www.supremecourt.gov/orders/courtorders/062810zor.pdf.
13. Roberts v. Galen of Va., Inc., 525 U.S. 249 (1999).
14. CMS advanced notice of proposed rulemaking; EMTALA: Applicability to hospital and critical access hospital inpatients and hospitals with specialized capabilities. 75 Fed. Reg. (246) 80762-80765 (Dec. 23, 2010). http://edocket.access.gpo.gov/2010/pdf/2010-32267.pdf.
15. 77 Fed. Reg. (22) 5,213-5,217 (February 2, 2012).
16. Money v. Banner Health, et al, 3:11-CV-00800-LRH-WGC (D. Nev. July 13, 2012).
17. Id, citing Bryant v. Adventist Health Sys. W., 289 F.3d 1162 (9th Cir. 2002).
18. 42 USC 1395dd(e)(3) and 1395dd(e)(4).
19. Liles v. TH Healthcare, Ltd., No. 2:11-CV-528-JRG (E.D. Tex. Sept. 10, 2012).
20. 42 USC 1395dd(e)(4).
21. 42 U.S.C. § 1395dd(c)(1).
22. Green v. Touro Infirmary, et al., 992 F.2d 537 (5th Cir. 1993); emphasis by the court.
23. Citing, for example, Harry v. Marchant, 291 F.3d 767 (11th Cir. 2002) and Bryant v. Adventist Health Sys. W., 289 F.3d 1162 (9th Cir. 2002).
24. James v. Jefferson Reg’l, No. 4:12CV267 JAR (E.D. Mo. May 15, 2012).
25. Lopez v. Contra Costa Reg’l Med. Ctr., No. C 12-03726 (N.D. Cal. Oct. 10, 2012).