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At Your Defense: Are Federal Courts Turning EMTALA into a Malpractice Statute?

Reyes, Carlo MD, JD

doi: 10.1097/01.EEM.0000424143.97017.32
At Your Defense

Dr. Reyes is an assistant professor of pediatrics and a clinical instructor of emergency medicine at Olive View/UCLA Medical Center, a health law attorney with Boyce Schaeffer, LLP, in Oxnard, CA, and a founder and the CEO of, which provides medical-legal education for doctors starting in medical school, through residency training, and beyond.





I always had the feeling that most busy emergency departments were turning to the provider-at-triage concept to keep their door-to-greet times low. I've worked at places in the past four years that see a lot of patients — ranging from 120 to 350 patients a day. These busy places made me realize how important provider-at-triage is for ED groups to maintain high patient satisfaction scores and fast ED metrics in this era of “pay-for-value” medicine, but it has alerted me to the malpractice and EMTALA pitfalls of provider-at-triage.

I've received a fair amount of email from readers about this that varied from praise to criticism to disbelief. It is time we came full circle to delve into the source of the angst: the realization that EMTALA is becoming a federal malpractice statute, contrary to the intent of Congress.

EMTALA was not intended to be a federal malpractice statute, as every district court EMTALA opinion mechanically iterates. Rather, EMTALA, as the “anti-dumping statute,” was enacted in 1986 to prohibit hospitals from refusing to treat uninsured patients. The black letter law of EMTALA conveys to hospitals three main duties. Hospitals must provide every ED patient “an appropriate medical screening examination within the capability of the hospital's emergency department.” (42 U.S.C. §1395dd.) A hospital violates EMTALA if it does not provide a patient with the same evaluation it routinely provides to screen for an emergency medical condition because of insurance status.

If the screening exam discovers an emergency medical condition, EMTALA confers upon hospitals a duty to stabilize the patient, which requires hospitals to provide medical treatment “as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to … occur.” (Id., §1395dd [emergency][3][A].) If a hospital cannot capably stabilize the condition, EMTALA requires the hospital to orchestrate an appropriate transfer to another facility that can, and it requires the physician to provide stabilizing treatment to minimize risk of deterioration during transport, among other requirements.

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Financial Incentives

Plaintiff attorneys are adept at drafting the complaint into a federal question that embodies the EMTALA issue, pushing the case into federal court. The offending hospital and physicians are subject to civil money penalties up to $50,000 per violation under EMTALA. Multiple violations may accrue with each defendant, and these penalties are not subject to state tort cap limits and are not covered by malpractice insurance.

EMTALA allows an injured patient to sue the offending hospital for personal injuries, and also allows the receiving hospital to sue the sending hospital for financial injuries incurred by the violation. Some federal courts have held that state tort caps on damages do not apply in disparate screening violation cases. The Eastern District Court held in Romar v. Fresno that the plaintiff's EMTALA disparate screening claim is not subject to the Medical Injury Compensation Reform Act (MICRA), California's noneconomic damages cap. (583 F.Supp2d 1179 [E.D.Cal. 2008].)

This has far-reaching implications. Physicians cannot be individually sued under EMTALA, but a hospital can seek indemnification to recoup its losses against a physician who may be largely to blame for the EMTALA violation. Couple this with the idea that some federal courts are removing the damages cap on EMTALA claims, and the stakes just got that much higher. The upshot here is that plaintiff attorneys now have an even deeper pocket to reach into and an even better venue to seek: federal court.

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The Federal Impact on EMTALA

The EMTALA analysis closely resembles a negligence analysis when one considers that an emergency physician must assume those duties that EMTALA imparts to the hospital. The physician-at-triage actively screens for an emergency medical condition by ordering tests, but he may be subject to scrutiny for performing a cursory exam, ordering the wrong tests, or documenting poorly. The medical screening exam is not complete until an emergency medical condition is discovered or ruled out, and depends largely on the emergency physician's effective utilization of ED resources and on-call consultants. Importantly, courts have acknowledged that a physician's EMTALA duty to stabilize an emergency medical condition with reasonable medical certainty is “inextricably intertwined” with professional negligence. (See Romar at 1188.)

The Sixth Circuit stretched EMTALA beyond its legislative intent in Moses v. Providence Medical Center by interpreting the stabilizing duty to extend beyond the emergency department and into the inpatient stay. (561 F.3d 573, 582 [6th Cir. 2009].) Under Moses, an inpatient physician can be in violation of EMTALA for discharging a patient admitted through the ED if the court finds that the emergency medical condition is not stabilized. The noted EMTALA expert Robert Bitterman, MD, JD, summarized it succinctly: “Although not exactly the same as a negligence analysis, EMTALA is a malpractice statute.”

I will review cases that may offer insight into defending against federal EMTALA claims in the coming months.

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