Does a Phone Call from a Clinic or Physician’s Office Signify the Patient Has “Come to the ED” for the Purpose of Triggering EMTALA Obligations?: AHC Media

Robert A. Bitterman, MD, JD, FACEP

Contributing Editor

Kansas court rules that a patient had not “come to the emergency department” by virtue of a clinic physician calling and asking the hospital to accept the patient. Furthermore, the court determined that EMTALA’s duty to accept a patient in transfer is only actuated when the hospital is called by another hospital, not by a clinic or physician’s office.

The Case of Penn v. Salina Regional Health Center1

Theresa Penn presented to a Kansas primary care clinic with crushing chest pain radiating to her neck, jaw, and both arms. Ms. Penn’s physician, Dr. Yoxall, examined her and determined she was experiencing an acute myocardial infarction — a life-threatening emergency. Dr. Yoxall called Salina Regional Health Center because Salina was the closest hospital with an emergency room and “specialized facilities.” Salina was a “supporting hospital” for the clinic, but there was no relationship of any kind between the two entities with legal significance under EMTALA (The Emergency Medical Treatment and Labor Act — 42 USC 1395dd).2

Dr. Kauer, the on-call cardiologist at Salina, took the phone call but declined to accept Ms. Penn, ostensibly because there were no beds open in the intensive care unit. Consequently, Ms. Penn was taken by ambulance to another hospital 85 miles from Salina. She suffered a cardiac arrest en route and died a few hours after arriving at the second hospital. The ambulance service that transported Ms. Penn was not owned by, or in any way affiliated with, Salina Regional.1

Ms. Penn’s family sued Salina Regional for violating EMTALA, claiming that the hospital failed to provide Ms. Penn a medical screening exam, failed to provide stabilizing treatment, and failed to accept her in transfer from the Kansas primary care clinic, as requested by her physician.1

Did Salina Regional Have a Duty to Screen and Stabilize Ms. Penn Under EMTALA?

Under EMTALA, a hospital must provide medical screening and stabilizing care if, and only if, there is a request for examination or treatment of a medical condition, and the individual has “come to the emergency department” — which the government CMS (Centers for Medicare & Medicaid Services) and the courts have interpreted to mean anywhere on hospital property, including in a ground or air ambulance owned and operated by the hospital.2

Ms. Penn’s physician obviously requested emergency care for her, so the whole case boiled down to whether Ms. Penn had “come to” Salina Regional. The answer may seem simple and obvious, but the terms “simple” and “obvious” are rarely congruent with government regulations or court interpretations of law.

The plaintiffs, faced with the incontrovertible facts that Ms. Penn never reached Salina Regional property and was not transported in a Salina Regional ambulance, asserted the requirement that a patient “comes to” the emergency department was met by Dr. Yoxall’s phone call from the primary care clinic to the hospital requesting emergency services. They pointed out that other courts have accepted such an expansive interpretation of the “comes to” language of EMTALA.1

For example, in two civil cases, federal appellate courts held that once an ambulance contacts a hospital, the patient has “come to the emergency department” for purposes of triggering EMTALA obligations on that hospital. Each time, the hospital’s emergency physician had re-routed the patient to another hospital farther away via telemetry orders to the medics in the ambulance.3,4

In the first case, Arrington v. Wong,3 a non-hospital owned ambulance began transporting a Hawaiian man suffering a heart attack to Queen’s Medical Center, the nearest hospital. The medics radioed ahead to alert the hospital of their arrival and offered (or in response to the emergency physician asking who was the patient’s regular doctor) that the patient typically went to Tripler Army Medical Center, 5 miles away from Queen’s. The emergency physician then opined, “I think it would be OK to go to Tripler,” whereupon the medics diverted to Tripler, where the patient died shortly after arrival.3

The Arrington family sued Dr. Wong and Queen’s Medical Center under EMTALA, convincing the court to stretch the “comes to the ED” language to include phone contact from a non-hospital owned ambulance that was not on hospital property. Additionally, the 9th Circuit Court ruled that once the ambulance was en route to the hospital, the hospital could not divert the ambulance elsewhere unless it was on “diversionary status.”3

The second case cited by the plaintiffs was Morales v. Sociedad Espanola de Auxilio Mutuo y Beneficencia, which, in turn, relied on the Arrington decision.4 In the Morales case, a patient with a potentially ruptured ectopic pregnancy was in a non-hospital owned ambulance on the way to the ED of a Puerto Rico hospital when the paramedics contacted the emergency physician on duty. Allegedly, the physician inquired as to whether the patient was medically insured or a member of the hospital’s insurance program. Upon learning of her uninsured status, the physician abruptly terminated the call, which the paramedics interpreted as a refusal to accept the patient into the hospital’s ED. Feeling stymied, the paramedics took the patient elsewhere.

Again, a suit was filed claiming the hospital violated EMTALA. The plaintiff argued that once the paramedics decided to take her to the hospital, started driving in that direction, and had contacted the physician in the emergency department to facilitate her arrival, she had, for all practical purposes, “come to” the hospital, and that she was rebuffed due to her lack of insurance.

Again, the issue was whether the patient had “come to” the hospital’s emergency department, and once more, the court, citing the Arrington decision, ruled for the plaintiff and allowed the lawsuit to proceed.

Furthermore, the Morales court agreed with the Arrington court that the hospital could not turn away an individual in a non-hospital-owned ambulance that had not yet reached hospital property unless it was on “diversionary status.”4

Must a Hospital Be on Diversionary Status Before it Can Divert an Incoming Ambulance?

Both appellate courts relied on the EMTALA regulations promulgated by CMS to reach their conclusion.5 The relevant section related to “comes to the emergency department” and “diversionary status” is:

Comes to the emergency department means ...the individual — is in a ground or air non-hospital-owned ambulance on hospital property for presentation for examination and treatment of a medical condition at a hospital’s dedicated emergency department. However, an individual in a non-hospital owned ambulance off hospital property is not considered to have come to the hospital’s emergency department, even if a member of the ambulance staff contacts the hospital by telephone or telemetry communications and informs the hospital that they want to transport the individual to the hospital for examination and treatment.

The hospital may direct the ambulance to another facility if it is in ‘‘diversionary status,’’ that is, it does not have the staff or facilities to accept any additional emergency patients. If, however, the ambulance staff disregard the hospital’s diversion instructions and transport the individual onto hospital property, the individual is considered to have come to the emergency department.6

The Arrington court interpreted these four sentences to mean that only if the hospital was on diversion could it re-route a non-hospital-owned ambulance before it arrived on hospital property. It essentially ignored CMS’ simple and obvious declaration in the second sentence that a person in a non-hospital owned ambulance off hospital property has not come to the ED, even when the medics call the hospital expressing their desire to bring the patient there.3

The Morales court found these four sentences “imprecise,” “ambiguous,” and “absent of reliable guidance” from CMS.4 So it decided to look to legislative intent, rather than the plain language of the statute (“comes to the hospital’s emergency department”) or the regulations to decide when an individual in a non-hospital owned ambulance had “come to” the ED. It believed the law must be interpreted in a way that prevents hospitals from “dumping” patients, enhancing the ability of indigent individuals to receive timely emergency care, and thwarting hospitals’ efforts to turn away prospective patients because of their economic status, fits most squarely with this intent.4

The court believed that to hold otherwise would create perverse incentives associated with EMS diversion, stating that, “If a hospital were allowed to turn away an individual while she was en route to the hospital, an uninsured or financially strapped person could be bounced around like a ping-pong ball in search of a willing provider. That result would be antithetic to the core policy on which EMTALA is based.”4

It also believed that this interpretation would preserve the salutary practice of ambulances contacting hospitals prior to arrival when perceived emergencies exist, “enabling the EDs to undertake suitable preparatory measures.” It did not want the ambulance staff to fear refusals because of the lack of medical insurance and, instead, present to the ED “under cover of silence.” True, EMTALA would require the ED to examine and treat the individual upon arrival, but precious time would be lost.4

The Morales court ended its discussion, commenting that it was a “close and difficult case,” and that CMS “has the authority, should it choose to act, to resolve the ambiguity either way. To this date, however, HHS has not done so. Unless and until that occurs, we must do the best we can ...”4

Interestingly, CMS’ guidance was originally contained only in its interpretive guidelines, not in its regulations. After the Arrington case decision, CMS proposed codifying the guidelines into regulations. The medical/legal professions asked CMS to change/clarify the language, primarily seeking to prevent future court rulings similar to the Arrington decision of the 9th Circuit, or, at least, make its position on the issue known to all. Instead, CMS specifically stated it would not comment on the Arrington decision, and did not clarify the issue one way or another; it simply inserted the critical language of the guidelines into the regulations — the same regulations that later would confuse and confound the 1st Circuit in the Morales case.7

The Penn Court Disagreed with the Appellate Courts in the Arrington and Morales Cases

The district court in Penn declined to accept the decisions of other circuits, finding that their interpretation was “diametrically opposed” to the regulatory definitions. Instead, it accepted the opinion of the dissents in Arrington and Morales, which interpreted the “comes to” language to require that the patient be physically present on hospital property to trigger EMTALA. Phone calls from non-hospital-owned ambulances en route didn’t count, and the Penn court considered the rulings of the appellate courts to be “strained attempts to make EMTALA apply to tragic factual scenarios.” In other words, based on emotion rather than law.1

It believed the meaning of the first and second sentences was evident simply by reading them: an individual in a non-hospital-owned ambulance has not “come to” the emergency department unless and until he or she is on hospital property. The second sentence is a manifest expression of CMS’ intent to exclude from this category those who merely call ahead.

It interpreted the third sentence to be simply one scenario (i.e., when the hospital is on “diversionary status”) under which the hospital could deny access to an individual in a non-hospital-owned ambulance that called ahead, but not the only scenario under which it could deny access.

The fourth sentence then explains the legal ramifications if the ambulance staff ignore the hospital’s rejection and show up on hospital property or at the ED anyway (which, in my opinion, is the only reason CMS included the third sentence — it wanted hospitals to fully comprehend that they had an EMTALA duty to provide emergency care to indigent patients who presented to their EDs in spite of the hospital’s efforts to keep them away). The fourth sentence also affirms CMS’ intent that in order to have “come to” the emergency department for EMTALA purposes, the patient must actually be physically on hospital property.1

Did Salina Regional Have a Duty Under EMTALA to Accept Ms. Penn in Transfer from the Clinic?

Lastly, the court examined whether Salina Regional had engaged in “reverse dumping” by failing to accept an appropriate transfer in violation of EMTALA’s non-discrimination clause, which reads:

“A participating hospital that has specialized capabilities or facilities (such as burn units, shock-trauma units, neonatal intensive care units, or [with respect to rural areas] regional referral centers ...) shall not refuse to accept an appropriate transfer of an individual who requires such specialized capabilities or facilities if the hospital has the capacity to treat the individual.”8

Salina Regional agreed it was a “participating hospital,” since it was a hospital that had entered into a Medicare provider agreement under section 1395cc of the Social Security Act, as defined by EMTALA.9

However, Salina argued that EMTALA and its regulations do not apply when a clinic or physician’s office attempts to send a patient to a hospital. It claimed that for a hospital to be liable under EMTALA for “reverse dumping,” the request for transfer must come from another hospital, not a clinic or physician’s office.1

The court agreed, noting that participating hospitals need only accept appropriate “transfers,” and the term “transfer” is defined by EMTALA to mean “the movement ... of an individual outside a hospital’s facilities at the direction of any person employed by (or affiliated or associated, directly or indirectly, with) the hospital.”10

The court considered “the mind-numbing definition of ‘hospital,’” set out in the Medicare statute, then easily ruled that the clinic or Dr. Yoxall’s office was not a “hospital” and, therefore, Salina Regional had no duty under EMTALA to accept a patient from them.11

The plaintiffs floated one last balloon, arguing that the clinic or Dr. Yoxall’s office constituted implied or de facto “dedicated emergency departments,” since many patients come directly to the clinic for emergent care, in part because of the clinic’s association with another hospital. The court rejected that argument, using language very apt to really understanding EMTALA: “There is no room in the definition-heavy environment of EMTALA law and regulations for ‘implied’ or ‘de facto’ constructions.” Definitions really do matter when considering whether EMTALA applies to any patient encounter.1 Note, too, that critical access hospitals are included in the definition of “hospital” for purposes of EMTALA.12

In the end, the court said it is apparent that “reverse dumping” requires two hospitals: a “transferring hospital” and a “specialized transfer accepting hospital.”1


The decisions in this case, assuming they are upheld on appeal, are good news for hospitals providing EMS telemetry directions to ground and air ambulances and to hospitals asked to accept patients from non-hospital settings, such as outlying clinics or physician offices.

“Comes to the emergency department” should mean actual physical presence on hospital property. If CMS tells an employee to “come to work by 9 a.m.,” it certainly will not pay the individual for the hour he claims to be “at work” because he is “coming to the building” by 9 a.m. but doesn’t show up until 10 a.m. EMTALA cannot be used to solve all problems within the health care system. EMS telemetry alone should not constitute “comes to the ED” to attach EMTALA duties a hospital, regardless of whether or not the hospital is on “diversionary status.”

Furthermore, the regulatory language states that the hospital may not divert the ambulance if it can accept “any additional patients.” What if the hospital has the capacity to accept medical patients, but not major trauma patients at that time, and the ambulance calling is asking to bring in a trauma case? It would be appropriate to divert the ambulance because that hospital at that time would not be an appropriate place to take the patient. Often hospitals are able to accept some types of patients, such as non-urgent cases, but not the type of patient in the ambulance, such as a major trauma case or a patient in need of a service the hospital lacks, such a neurosurgery.

Additionally, patients are often directed to other facilities because of patient preference, family preference, previous extensive treatment at the other facility, physician preferences, and medically indicated reasons such as required specialty care. It doesn’t do the head trauma patient any good to bring him or her to a hospital that lacks a neurosurgeon.

Medical direction decisions are complex and made with inadequate information. They are essentially “educated guesses” based on experience, training, and judgment, and made in good faith to achieve the best possible care for the patient. If EMTALA attaches to medical direction decisions, emergency physicians and hospitals may cease participation in community EMS medical control systems.

Witness what occurred in Chicago after the Johnson v. University of Chicago case (an infant in cardiac arrest was re-routed farther away because the hospital was on “partial EMS bypass” for pediatric cases).13 There was such uproar from the provider community that the court changed its opinion sua sponte (on its own accord), from finding the hospital liable under EMTALA to stating that the law didn’t apply to phone calls from non-hospital-owned ambulances, because otherwise no one would participate in EMS medical direction due to the additional civil liability under EMTALA.13 Why would hospitals and physicians risk $50,000 civil monetary penalties for ordinary negligence, costly interminable Medicare termination investigations and proceedings, and federal civil liability for a considerate service they are providing entirely gratis to their communities?

Furthermore, if EMTALA, which is a federal law, applies to EMS direction, it preempts the ability of the individual states to legislatively provide liability protection to EMS medical control physicians and hospitals for provision of this community service. Most states currently do provide some qualified liability protection in this arena. If EMTALA is expanded to medical control decisions, it would preempt those protections because of the supremacy clause of the U.S. Constitution. See, for example, Illinois’ Emergency Medical Services Act, which immunizes an EMS telemetry system operator from liability for any activity that does not constitute “willful or wanton misconduct.”14

So what does an emergency physician do when he or she believes it’s appropriate to divert an ambulance to another facility? Always act in the best interest of the patient, not what is safest for one’s self or the hospital from a legal perspective. Redirect patients to the most appropriate facility based on established community EMS protocols. Don’t even ask about the patient’s insurance or managed care status; instead, base all decisions solely on the legitimate individual medical issues of each case rather than diverting patients based on economic or other non-medically indicated reasons. Document your decisions accordingly.

Finally, be “crystal clear” in your directions to the ambulance personnel. The emergency physician in the Arrington case claimed that he was merely agreeing with the medic’s decision that it was OK to re-route to the patient’s regular hospital. However, the medics testified that they believed that the physician ordered them to the other hospital.


1. Penn v. Salina Reg’l Health Ctr., Inc., No. 11-1243-MLB (D. Kan. May 9, 2012).

2. 42 USC § 1395dd(a); 42 CFR § 489.24.

3. Arrington v. Wong, 237 F.3d 1066 (9th Cir. 2001), overturning the district court’s ruling in Arrington v. Wong, 19 F.Supp.2d 1151 (D. Haw. 1998).

4. Morales v. Sociedad Espanola de Auxilio Mutuo y Beneficencia, 524 F.3d 54 (1st Cir. 2008).

5. 42 CFR 489.24 et seq.

6. 42 CFR 489.24(b)(4).

7. CMS’s Revised Interpretive Guidelines: State Operations Manual Provider Certification, Dept. of HHS, CMS, Transmittal No. 2, May 1998. Effective July 14, 1998; 67 Federal Register 31403-31452 (May 9, 2002), CMS Proposed EMTALA Rules; and 68 Federal Register 53,221-53264 (September 9, 2003), CMS final EMTALA regulations which became effective November 10, 2003.

8. 42 USC Section 1395dd(g).

9. 42 USC 1395dd(e)(2). 42 USC 1395cc. The hospitals governed by EMTALA are hospitals with emergency departments that execute Medicare provider agreements with the federal government pursuant to 42 USC 1395cc. See Burditt v. U.S. Dept. of Health and Human Services, 934 F.2d 1362 (5th Cir.1991).

10. 42 USC 1395dd(e)(4). Definition of “transfer” under EMTALA.

11. 42 USC 1395x(e).

12. See Sections 1861(mm)(1) and 1820(e) of the Social Security Act.

13. Johnson v. University of Chicago Hosp., 982 F.2d 230 (7th Cir.1992).

14. Ill.Rev.Stat. ch. 111 1/2, pp 5501 et seq. (1992).