Stabilization issue addressed
A recent decision by the Wisconsin Supreme Court involving the federal Emergency Medical Treatment and Labor Act (EMTALA) offers several take-home points for access managers and others charged with overseeing emergency department (ED) operations, says Stephen A. Frew, JD, a risk management attorney and web site publisher (www.medlaw.com) specializing in EMTALA issues.
In the Wisconsin case, Shannon Preston sued Meriter Hospital in Madison, alleging that physicians there refused to treat her infant son, who weighed only 1 pound when he was born 17 weeks premature in 1999, because they believed his lungs were so underdeveloped that he would not survive regardless of what they did.
Preston sued on several grounds, including her contention that the hospital violated EMTALA. A circuit court decided in the hospital’s favor, ruling that the federal requirement did not apply to the infant because he arrived through the birthing center, not the ED. The Supreme Court reversed that decision. “The duty to provide a medical screening examination should not depend on the hospital room — be it the emergency room, the birthing center, or an operating room — into which a baby is born,” Justice David Prosser wrote for the majority in the July 13 ruling.
Frew points out that the decision is consistent with the U.S. 1st Circuit Court of Appeals 1999 ruling in the Lopez-Soto v. Jose Hawayek case interpreting EMTALA. “Decisions like this one are likely to force a confrontation [between] the courts following the U.S. Supreme Court lead on EMTALA from the  Roberts [v. Galen of Virginia Inc.] case and those seeking to limit the application of EMTALA to its ‘intent,’ not its literal language,” Frew contends.
In the Roberts case, the high court held that no showing of improper motive is required to establish a violation of EMTALA’s stabilization requirement.
Conflict between courts
The conflict among the courts, Frew predicts, “ultimately will lead to an encore EMTALA presentation to the U.S. Supreme Court, with little indication whether changes on the high court will strengthen or weaken the Roberts and Lopez-Soto decisions and provide more definitive guidance one way or the other.”
Frew says, however, that the Wisconsin decision has a patent logic that makes its argument compelling. He notes that the Centers for Medicare & Medicaid Services (CMS) always has included obstetrics as an ED area in its discussion of EMTALA and points out that the duty to provide care is ongoing until the condition is stabilized.
“An OB patient is stabilized when the hospital has delivered the baby and placenta,” he says, “and the defendant in [the Wisconsin] case wanted to say that the EMTALA duty stopped at that point and that the baby had not presented for EMTALA purposes.”
The definition of “presenting,” Frew adds, includes arrival on the premises and someone asking for care. “Clearly, the baby arrived on campus in the mother’s womb,” he says, noting that the language in the EMTALA law clearly considers the fetus a separate entity. “It is ludicrous to suggest that the mother asked for help for herself and not her baby.”
He goes on to point out that while the hospital argued that the infant was not viable, younger children do survive, and 22 weeks is within the standard that most hospitals use for viability. “Without a documented assessment, it would be difficult to demonstrate whether or not the infant was viable, and the burden under EMTALA rests with the hospital,” Frew says.
“The plaintiff alleges that a medical screening exam [MSE] was not given, and without an MSE, it is again difficult to argue that providing care would have been futile,” he adds.
He suggests hospitals take away the following points from the case:
1. Obstetrics presentations are covered by EMTALA in the labor and delivery area or the ED.
2. The baby is a separate patient covered by EMTALA when the mother presents and has separate EMTALA rights.
3. It is dangerous to try to distinguish emergency duties for patients in the unit from those in the ED, “and you take your chances both with CMS and with malpractice cases where it will be hard to defend double standards,” Frew says.
4. It is always “difficult to impossible” to establish that reasonable care was taken without detailed examination findings and policies and procedures to back you up, he adds.
CMS advisory related to case
An advisory issued April 22 by CMS, meanwhile, addresses the interaction between the Born-Alive Infants Protection Act of 2002 and EMTALA, Frew notes. The advisory was prompted, CMS stated, because “it has recently come to the agency’s attention that there may be occasions where, in hospitals, an infant may be born alive within the meaning of the definition added to the United States Code by the Born-Alive Infants Protection Act of 2002, but where hospitals have failed to comply with the requirements of EMTALA.”
The CMS advisory amended the language in the U.S. code so that “in determining the meaning of any act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the words ‘person,’ ‘human being,’ ‘child,’ and ‘individual,’ shall include every infant member of the species Homo sapiens who is born alive at any stage of development.”
In discussing EMTALA applicability, Frew says, CMS uses examples of a child born in the labor and delivery room, or on the hospital campus outside the labor and delivery room. It also notes, he adds, that a child who is admitted to the hospital would not be covered by EMTALA under the current CMS view but would definitely be covered by the Medicare Conditions of Participation.
Frew advises those investigating EMTALA complaints as follows:
“EMTALA is a complaint-driven statute. If you receive a complaint that suggests that a born-alive infant has been denied a screening examination, stabilizing treatment, or appropriate transfer, you should treat the complaint as potentially triggering an EMTALA investigation of the hospital,” he continues. “Note that it is not necessary to determine that the hospital acted with an improper motive in any failure to provide a screening examination, stabilizing treatment, or appropriate transfer, in order to conclude that an EMTALA violation has occurred,” Frew adds. “The Supreme Court of the United States has held that a finding of improper motive is not required to conclude that an EMTALA violation has occurred.”