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EMTALA Concerns if Patient Harm Is Linked to Staffing Shortage

By Stacey Kusterbeck

Hospitals with short-staffed EDs risk penalties and lawsuits. “The particular risks in a given situation will depend on whether the crowding and understaffing caused any harm,” according to Taylor Hertzler, JD, a member of the Health Law Practice Group in the Philadelphia office of Duane Morris.

The Emergency Medical Treatment and Labor Act (EMTALA) is an ED’s main regulatory concern when it comes to waiting room deaths and understaffed departments. The Medicare Conditions of Participation require all hospitals with EDs to comply with EMTALA. Failure to comply could lead to exclusion from Medicare — a dire situation for any facility. “A waiting room death itself, or understaffing itself, would not necessarily lead to Medicare exclusion. Rather, a waiting room death suggests EMTALA noncompliance, just as ED understaffing can cause EMTALA noncompliance,” Hertzler explains.

However, reports of either of these could lead the Centers for Medicare & Medicaid Services (CMS) to investigate. Depending on the findings, it could result in termination of the hospital’s Medicare contract. Failure to provide effective and accurate treatment within a reasonable time can constitute failure to fulfill EMTALA’s requirement of providing an “appropriate” medical screening examination (MSE).

For example, in 2008, a Virginia hospital was sued after a patient presented to the ED and received a brief triage, which failed to note history of diabetes.1 The patient did not receive a thorough examination until 11 hours later. The patient was triaged as low-acuity, and went into cardiac arrest while waiting for an evaluation. The patient fully recovered, but alleged the failure to provide a thorough and “prompt” MSE constituted a failure to fulfill EMTALA’s requirement of an “appropriate” MSE.

In 2022, after a highly publicized death in an ED waiting room, a North Carolina hospital hired hundreds of nurses to avoid the termination of its Medicare contract.2 A patient was triaged as urgent, but did not receive care for another five hours. The incident triggered an inspection, which resulted in CMS threatening to terminate the hospital’s Medicare contract. “The hospital responded with a hiring spree, and state inspectors have since recommended that CMS rescind its threat,” Hertzler reports.

It is important for ED providers to understand an individual EP or hospital can be liable under EMTALA, even if no one is hurt. “For most other federal and state risks, EDs can be liable only if a patient or another facility suffers harm,” Hertzler says. “EMTALA also provides a private cause of action.”

If a patient “suffers personal harm as a direct result” of an ED’s EMTALA violation, that patient may sue the hospital for personal injury. Additionally, if an ED violates EMTALA in a way that harms another medical facility, that facility also can sue the ED for damages. For example, an understaffed ED may delay transfer, putting the patient in a worse condition upon arrival at the receiving facility. “At the state level, any harm a patient suffers from ED understaffing or overcrowding would be actionable primarily under the tort laws of the state in question,” Hertzler notes.

These laws differ from state to state, but they mostly consist of negligence or medical malpractice. “The liability risk for these suits would be if — and only if — understaffing or overcrowding injured a patient,” Hertzler stresses.

For example, an understaffed ED might fail to treat a patient promptly, causing his or her condition to worsen beyond what it would have if the patient received prompt treatment. “Or, an ED physician, overworked and trying to keep up with extra-high patient volumes, might do a sloppy job so that he can move on to the next patient, thus failing to treat that patient fully, and causing the patient further harm,” Hertzler says.

Under EMTALA and state tort lawsuits, ED providers are liable only if their actions were negligent. “If the hospital or provider in question has done everything reasonable in its power to avoid understaffing issues or to treat the patient, then the hospital or provider generally cannot be liable for patient death or other harm,” Hertzler says. “This is still a high bar.”

What actions constitute “reasonable” efforts to avoid understaffing might be much different in the eyes of a judge or to members of a jury than in the eyes of hospital administrators or providers. “But still, this bar means that a hospital or provider is not de facto guilty when a patient dies due to understaffing,” Hertzler asserts.


1. Scruggs v. Danville Regional Medical Center of Virginia. Case No. 4:08CV00005 (W.D. Va., Sep. 5, 2008).

2. McAdams A. Medicare regulators confirm woman coded in ER waiting room after waiting 5+ hours for care. WECT News 6, Aug. 23, 2022.