a new liability window for emtala - the rozovsky group · pdf filethe emtala case. in december...

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This publication is not intended to be and should not be used as a substitute for specific legal or risk management advice. Readers should obtain specific legal or risk

management advice in addressing issues discussed in this newsletter

NEWSLETTER Volume Five Number Four April, 2009

A New Liability Window for EMTALA

“…we believe that the civil enforcement provision, read in the context of the statute as a whole, plainly does not limit its reach to the patients treated at the hospital... We recognize that our interpretation of the civil enforcement provision may have consequences for hospitals that Congress may or may not have considered or intended. However, our duty is only to read the statute as it is written…”

Many have long believed that only a patient could exercise the civil enforcement provision found in the EMTALA statute. A recent U.S. Circuit Court of Appeal decision1 has cast a doubt on this belief. The court ruling overturned a U.S. District Court judge s grant of summary judgment involving a claim against a Michigan healthcare facility. However, it left intact the lower court grant of summary judgment in favor of a staff physician. If the reasoning behind the ruling is followed by other appellate courts, it will expand the scope of responsibility for hospitals that admit patients with an emergency medical condition. At the same time, it will broaden the definition of those who have legal standing to bring private liability claims under EMTALA. The ruling is important in other ways. The appellate court decision reveals a number of good “lessons learned” for healthcare risk managers relating to communication and documentation practices. Together with the EMTALA interpretation, the case should help risk managers reinforce the “right” things to do in terms of charting in the medical record.

A NEW LIABILITY WINDOW FOR EMTALA

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The EMTALA Case. In December 2002, C.W.H. was brought to a Michigan hospital emergency department by his wife, M. M.-I. At the time of his presentation, C.W.H. was experiencing several problems, including severe headache, vomiting, muscle soreness, high blood pressure, disorientation, and slurred speech. He was also experiencing delusions and hallucinations.2 M. M.-I. told the emergency room personnel that she feared for her safety because C.W.H. had exhibited threatening behavior directed towards her. The emergency department decided to admit C.W.H. for further tests.3 C.W.H. was seen by a neurologist, a psychiatrist, and a specialist in internal medicine. When Dr. M.S., the neurologist, saw the patient the next day he appeared to be acting inappropriately. Dr. M.S. learned from M. M.-I., that the patient had informed her that he had purchased some caskets and that he had tried to board an airplane with a hunting knife.4 Dr. M.S. ordered an MRI, but it was not clear from the record whether the test was completed. Dr. M.S. also thought the patient needed a psychiatric evaluation, noting in the record that he thought it was important to rule out an acute psychotic episode.5 For his part, Dr. P.L., the psychiatrist, decided that the patient was not medically stable from a psychiatric perspective and he ordered him transferred to the psychiatric unit to reassess him and to determine through reality testing the scope of his delusions. The physician s notes indicated that the psychiatric unit was willing to accept him if his health insurance would cover his treatment. The psychiatrist issued an order for suicide precautions. In his notes the psychiatrist observed that he believed that the patient had an atypical psychosis and likely depression.6 The patient was never admitted to the psychiatric unit. Instead, the internist, Dr. D.M. told C.W.H. that he was going to be discharged from the hospital. The discussion took place the day after the psychiatrist ordered the transfer for psychiatric evaluation. In the progress notes, Dr. D.M. wrote that the patient had declined the transfer and that he wanted to return to his home. The notation included the following details:

“His affect is brighter. No physical symptoms now. [Patient] wishes to go home, wife fears him. Denies any suicidality.”7


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A resident wrote the discharge summary that day, indicating that the patient had experienced a migraine headache and atypical psychosis with a delusional disorder. The following day, the internist wrote that he could not say that the patient was medically stable and that he did not need the psychiatric unit. The patient was discharged that same day. Ten days later, C.W.H. murdered his wife M. M.-I.8 The plaintiff, as personal representative of M. M.-I. s estate, filed suit against the hospital and the psychiatrist, claiming that by releasing C.W.H, they had violated the Emergency Medical Treatment and Active Labor Act (EMTALA). In response, the defense filed a motion to dismiss, asserting that EMTALA only offered a right of action by a plaintiff who sought treatment as a hospital patient. This request was rejected by a U.S. District Court judge. From the bench, the judge said that the “plain language” of the EMTALA law did not prohibit a lawsuit filed by an injured third party.9 The defense then filed a motion for summary judgment. The motion was based on two legal arguments. First, that the plaintiff had no standing to sue because the statute only permits a patient seeking hospital care to have such legal standing. Second, the defendants argued that once a hospital has admitted a patient as an inpatient, EMTALA imposes no further obligation on the facility.10 When presenting its oral argument for the motion for summary judgment, the defense introduced yet a third argument: that after completing the medical screening, hospital physicians did not diagnose the patient with an emergency medical condition.11 The U.S. District Court granted the defense motion for summary judgment on the EMTALA claims. The court declined to exert jurisdiction over the plaintiff s negligence claims that had also been filed in the case. The plaintiff appealed the ruling.12 On appeal, the plaintiff argued that she had not been accorded “fair notice” that the defense would assert during oral argument that the patient did not have an emergency medical condition. Further she argued had she been given due notice she would have filed with her legal pleadings a report from a forensic psychiatric expert that based on his review of the medical record, the patient did have an emergency medical condition when he arrived at the hospital. In his report, the expert suggested that at the time of discharge the patient had not been


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stabilized. This information had been furnished to the defense many months prior to the oral argument before the U.S. District Court judge.13 The U.S. Circuit Court of Appeals reviewed various aspects of the case. First, as to the issue of standing to pursue the claim, the court determined that nothing in the EMTALA law precluded a non-patient from filing a claim against a hospital. Indeed, as the court pointed out:

“the plain language of the civil enforcement provision of EMTALA contains very broad language regarding who may bring a claim: any individual who suffers personal harm as a direct result of a hospital s EMTALA violation may sue. §1395dd(d)(2)(A).”14

Here, the allegation was that the patient s late wife s death was the “direct result” of the hospital s determination to discharge her husband before his emergency psychiatric condition had been stabilized. When read in the context of the EMTALA legislation, the civil enforcement component did not restrict the ability to sue just to patients. Based on this analysis, the court determined that the plaintiff had the standing to pursue the EMTALA claim.15 The court also took issue with the defense argument dealing with the facility s responsibility when the patient presented at the hospital. The court rejected the suggestion that by admitting him for six days and performing testing, the hospital had met its obligation to treat the patient to stabilize him as required under EMTALA. On this point the court said:

“…EMTALA requires a hospital to treat a patient with an emergency condition in such a way that, upon the patient s release, no further deterioration of the condition is likely. In the case of most emergency conditions, it is unreasonable to believe that such treatment could be provided by admitting a patient and then discharging him.”16

The court rejected a defense argument that a regulation promulgated by the Centers for Medicare and Medicaid Services (CMS) basically ended a hospital s EMTALA responsibilities when a person is admitted as an inpatient. The regulation, promulgated in 2003 stated:

“[i]f a hospital has screened an individual under paragraph (a) of this section and found the individual to have an emergency medical condition, and admits that individual as an inpatient in good faith in order to stabilize the


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emergency medical condition, the hospital has satisfied its special responsibilities under this section with respect to that individual.”17

The court said that the regulation contradicted the “plain language” of the EMTALA law. Acknowledging that the word “treatment” was not defined in the EMTALA law, the court said, “…it is unreasonable to believe that treatment as may be required to stabilize could mean simply admitting the patient and nothing further.”18 Emphasizing this point the court explained:

“Therefore, a hospital may not release a patient with an emergency medical condition without first determining that the patient has actually stabilized, even if the hospital properly admitted the patient.”19

Lastly on this point it was noted that even if the CMS regulation was consistent with the EMTALA law, the rule came into effect after C.W.H. s hospitalization. Hence it would not apply in this case. Hence, the defense was not entitled to summary judgment “simply on the ground that the hospital admitted [C.W.H.] as an inpatient and subjected him to several days of testing.”20 The appellate court rejected the district court grant of summary judgment that the patient did not have an emergency medical condition, indicating that this was an issue of fact in dispute that should have been left to a jury to decide. The plaintiff asserted that since this issue was raised for the first time at oral argument during the motion for summary judgment, it prejudiced her ability to address this issue. She argued that she would have included the report of the psychiatric expert to oppose the defense motion.21 The appellate court agreed with the plaintiff and decided to consider the expert s report on appeal:

“In reviewing this report as well as the remainder of the evidence in the record, we find that issues of fact exist with respect to whether the hospital physicians actually believed [C.W.H.] lacked an emergency medical condition.”22

For the appellate court, a mental health emergency could constitute an “emergency medical condition” under the “plain language” of the EMTALA law. In this case there was ample evidence to support the plaintiff s claim that the


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hospital physicians believed the patient had a mental health emergency at the time of admission. In addition, noting that there were “issues of fact” whether the patient was stable at the time of discharge, the appellate court ruled that the lower court had erred in granting summary judgment to the hospital on this point.23 As to the plaintiff s EMTALA claim against the psychiatrist, the appellate court sided with the district court. It pointed out that the great weight of authority among several U.S. Circuit Courts of Appeal was that the EMTALA law did not create a private cause of action against individuals. Instead, the EMTALA law included civil penalties and exclusion from Medicare against those physicians who negligently violated the statute. Moreover, it noted that a claim that a doctor negligently failed to identify an emergency medical condition was subject to applicable state malpractice law.24 The appellate court remanded the case on those issues it had reversed earlier in the decision.25 Observations on the EMTALA Case. The Sixth Circuit Court of Appeal ruling sets forth some direction that may be instructive across the country. It reflects a close reading of the EMTALA law on who is an “individual” authorized to file a claim against participating hospitals. It also provides direction on mental health emergencies as an “emergency medical condition” under EMTALA. The court s push back on the CMS regulation is also illuminating. In essence, the court rejected the CMS rule on what satisfies treatment and stabilization following an inpatient admission of a person presenting with an emergency medical condition. One may well wonder whether other U.S. Circuit Courts of Appeal will adopt the same approach. For its part, CMS might disagree with the appellate court interpretation of the rule. With the new Administration reviewing existing regulations, the court s ruling might lead CMS to revise the regulation or issue an updated interpretive guideline. For now, it is unclear what will come as result of this aspect of the case. The Sixth Circuit Court of Appeal recognized the importance of its ruling that a non-patient had standing to sue a participating hospital under EMTALA. In essence, the court left the door open for Congress to enact legislation to narrow the scope of those with standing to sue under this legislation:


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“We recognize that our interpretation of the civil enforcement provision may have consequences for hospitals that Congress may or may not have considered or intended. However, our duty is only to read the statute as it is written, as we have in our past analysis of EMTALA.”26

The case should be put in context. The appellate court was reviewing a grant of summary judgment in favor of the defense. Hence, it had to decide whether the case contained evidence of sufficient facts in dispute to warrant allowing the plaintiff to proceed to trial before a jury. In doing so, the appellate court had to follow legal principles governing review of a summary judgment, by drawing “all reasonable inferences” in favor of the plaintiff.27 By reversing and remanding various aspects of the case, the ruling did not end the matter. Indeed, in order to prevail the plaintiff must still prove all the required elements of the claim. The legal proceedings aside, the appellate court ruling highlighted facts – if true – that point to communication and process issues. The case involved tests that were ordered that may not have been carried out. There was documentation of potentially serious mental health issues that were not resolved. And, as the plaintiff s psychiatric expert suggested, if the patient was experiencing atypical psychosis with possible suicidal behavior, the symptoms and condition could not be resolved in a matter of one or two days. Mental health diagnoses can prove challenging. Underlying medical issues need to be ruled out through appropriate testing. A work-up needs to be completed and documented in order to get to an accurate diagnosis. And, as the U.S. Circuit Court of Appeal ruling suggested

“…it is unreasonable to believe that treatment as may be required to stabilize could mean simply admitting the patient and nothing further.”28

The patient must be determined to have stabilized prior to discharge. Documentation that substantiates stabilization is important in this regard. The current economic downturn in the United States is generating numerous issues for hospitals and care providers. Patients with chronic mental health issues may present with acute symptoms. Knowing that a person has a history of chronic mental health problems may lead some to skip steps in the evaluation process such as expensive tests. Patients may shun inpatient care, especially if they are concerned about a large co-pay or the lack of health insurance to pay for


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treatment. Resources in an emergency department can be stretched during difficult economic times, especially if there is a rise in patients using such facilities as primary care venues. The current case involved an event in 2002, long before the present economic downturn seen across the nation. However, in light of what hospitals and providers face today, the court decision highlights opportunities for improvement in emergency department communication and documentation and practical risk management strategies for managing mental health emergency patients. Risk Management Strategies and Potential EMTALA Legal and Regulatory Issues. A number of practical risk management strategies may be considered to help hospitals address potential litigation recognized under EMTALA. At the same time, strategies may be considered for managing what the U.S. Circuit Court of Appeal has pointed out may be a dispute involving legislative requirements and a CMS regulation promulgated under EMTALA. In this context, consider the following strategies:

1. Review Internal Data for Communication and Documentation Issues on Patients Admitted from the Emergency Department. Examine carefully data to identify possible trends or patterns that point to potential communication or documentation concerns involving patients admitted from the emergency department. See if the data points to gaps in communication or patients not receiving specific types of testing or treatment. Specifically, look for such concerns as: • Patients receiving care from multiple specialists. • Patients for whom a number of specialists have issued orders for

diagnostic tests, diagnostic imaging, or observational care. • Patients who have been the subject of orders for transfer to

different units. • Patients who are “high risk” for such issues as falls, suicidal

behavior, self-abuse, or elopement. • Patients who come within “present on admission” categories such

as skin integrity issues, congestive heart disease, pneumonia, or infectious illnesses.


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2. Evaluate Communication and Documentation Trends on Patients Admitted from the Emergency Department. Use the data to help address clinical risk management concerns involving patients admitted from the emergency department. For example: • Are post-emergency department patients receiving ordered tests or

treatment? • Are post-emergency department behavioral health patients

undergoing ordered observational assessments? • Does documentation substantiate that “high risk” post-emergency

department patients are receiving the level of care warranted for such individuals?

• Are there unresolved conflicting orders among specialists attending a post-emergency department patient?

• Is there evidence of entries in the medical record to “close the loop” on open items such as orders for testing or observation or transfers to other units or departments?

3. Use Communication and Documentation Data to Educate. Think about using the data drawn from documentation review to help care providers learn good practices to follow in communicating and documenting orders for diagnostic testing, treatment and patient observation. Consider the “lessons learned” for use in orientation programs and in-service educational opportunities.

4. Review Documentation for Risk Prone Entries.

Think about regular documentation reviews on high-risk patients, including those who present with self-abuse or suicidal behavior issues. Review documentation in context to see if the record provides a clear pathway from diagnosis to discharge. Look for risk prone entries that raise questions such as an admission of a patient from the emergency department with an acute psychotic episode to being stable in a very short period of time, or a notation that the patient s wife fears him, an entry that may be suggestive that the patient could pose a risk of harm to his spouse. Help care providers understand not only how to document such observations, but to take appropriate action when progress notes or other notations include content about potential victims of abuse or harm on the part of a patient. Taking such an approach means that nurses and case managers involved in the


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discharge progress should be encouraged to report concerns about such entries in the medical record.

5. Address “Open Items” at the Time of Discharge. Consider implementation of an “open items” checklist to make certain that medical orders for testing, medication, treatment or observation have been completed, rejected and explained, or revised. Make certain that in educational program providers come to understand how “open items” can cast doubt on meeting applicable standards of care and regulatory compliance.

6. Obtain Legal Advice on the EMTALA Regulatory Requirement.

Consider asking legal counsel to provide guidance on the scope of responsibility for meeting the EMTALA screening and stabilization requirement following the U.S. Circuit Court of Appeal decision. Point out that a question was raised about the responsibility of a participating hospital once a patient is admitted as an inpatient. Recognize that there could be some confusion or disagreement on this issue until the legal concern raised by the court is resolved by CMS.

7. Monitor for More Developments. Recognize that EMTALA enforcement may prove to be a fertile area for change. Regulatory refinement may occur as a consequence of the U.S. Circuit Court of Appeal perspective on the 2003 CMS rules. Consider too, that the recent court ruling may lead to additional litigation in this area, giving other U.S. Circuit Court of Appeals the opportunity to issue rulings on the meaning of the EMTALA law relating to the requirements for stabilization and treatment.

Conclusion. No one can predict whether other courts faced with similar questions will rule as did the Sixth Circuit Court of Appeals. As noted earlier the current case dealt with issues raised on appeal of a grant of summary judgment. It remains to be seen if the case will now proceed to trial or settle out of court. No doubt the case raises major concerns for hospitals on the issue of EMTALA. Will CMS modify the regulations as a consequence of this ruling? Will there be a “wait and see” approach, letting other U.S. Courts of Appeal weigh in on the


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issue? To what extent, if any, will the President s Executive Order on regulatory review impact the situation?29 Beyond the EMTALA law, however, the facts of the case provide an important reminder for all in the healthcare field: the need to pay close attention to good practices in communication and documentation.

If you would like assistance with developing a risk management

program, please contact us at (860) 242-1302.


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References 1 M. v. PHMC, 2009 WL 902076 (U.S. Ct. of Appeals, Sixth Circuit, April 6, 2009). 2 Id. 3 Id. 4 Id. 5 Id. 6 Id. 7 Id. 8 Id. 9 Id. 10 Id. 11 Id. 12 Id. 13 Id. 14 Id. 15 Id. 16 Id. 17 Id. 18 Id. 19 Id. 20 Id. 21 Id. 22 Id. 23 Id. 24 Id. 25 Id. 26 Id. 27 Id. 28 Id. 29

On February 3, 2009, President Obama published a memorandum in the Federal Register tasking the “Director of OMB, in consultation with representatives of regulatory agencies, as appropriate, to produce within 100 days a set of recommendations for a new Executive Order on Federal regulatory review. Among other things, the recommendations should offer suggestions for the relationship between OIRA and the agencies; provide guidance on disclosure and transparency; encourage public participation in agency regulatory processes; offer suggestions on the role of cost-benefit analysis; address the role of distributional considerations, fairness, and concern for the interests of future generations; identify methods of ensuring that regulatory review does not produce undue delay; clarify the role of the behavioral sciences in formulating regulatory policy; and identify the best tools for achieving public goals through the regulatory process. “ Source: Federal Register: 74(21): 5975-5978, 5977, February 3, 2009.

a new liability window for emtala - the rozovsky group · pdf filethe emtala case. in december...

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