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At Your Defense: Does EMTALA Change the Standard of Care for Fetal Demise?

Reyes, Carlo MD, JD

Emergency Medicine News: May 2013 - Volume 35 - Issue 5 - p 9
doi: 10.1097/01.EEM.0000430474.84387.76
At Your Defense

Dr. Reyes is the vice chief of staff and the assistant medical director of emergency medicine at Los Robles Hospital and Medical Center in Thousand Oaks, CA. He is also a clinical professor of pediatrics and 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.





A woman, 16 weeks pregnant, develops mild contractions, and drives about 90 minutes to the nearest ED after speaking with the obstetrician on-call for her doctor. The emergency physician on duty performs an ultrasound, and cannot detect a heartbeat or fetal movement. The emergency physician asks the on-call obstetrician to come to the ED, and he confirms the diagnosis of fetal demise with another ultrasound. He instructs the emergency physician to discharge the patient, despite objections from her and her boyfriend.

The on-call obstetrician reasoned that a dilatation and evacuation would be too risky with the cervix not dilated or effaced. Later in the evening, the woman delivered the nonviable fetus in her bathroom. She returned to her obstetrician the next day because of persistent bleeding, and her doctor performed a D&E of retained products. Upset that the on-call obstetrician ignored her request to be admitted, the woman filed a claim under the Emergency Medical Treatment and Active Labor Act (EMTALA) in federal district court against the hospital for failure to stabilize an emergency medical condition. The jury awarded her $50,000 in compensatory damages and $150,000 in punitive damages.

Does this EMTALA ruling change the standard of care in obstetrics for treating early gestation fetal demise? I encourage physicians to read the judge's decision in Morin vs. Eastern Maine Medical Center because two ideas should emerge: the medical community and the federal courts differ in their interpretation and application of EMTALA, and EMTALA law, like medical negligence law, has the power to change the medical standard of care without the need for a plaintiff to establish physician negligence.

EMTALA apparently doesn't stand for Emergency Medical Treatment and Active Labor Act. EMTALA imparts three main duties to Medicare-participating hospitals: to perform a medical screening exam (MSE) to individuals presenting to the ED, to stabilize any emergency medical condition discovered during the MSE; and to appropriately transfer patients to another facility capable of stabilizing the emergency medical condition. EMTALA defines labor as “the process of childbirth beginning with the latent or early phase of labor and continuing through the delivery of the placenta.”

EMTALA treats a pregnant woman experiencing contractions as being in true labor unless a physician or other qualified medical person “certifies that, after a reasonable time of observation, the woman is in false labor.” The American Congress of Obstetricians and Gynecologists defines labor as uterine contractions sufficient to bring about cervical effacement, and active labor occurs when cervical dilatation reaches 3-4 cm. (Obstet Gynecol 2003;102[6]:1445.

The crux of the Morin case rests on intersection of the terms “active labor” and “emergency medical condition.” The plaintiff convinced the court that a woman experiencing mild contractions in the second trimester might constitute an emergency medical condition under EMTALA, even in the absence of active labor. The defendant hospital argued, however, that the patient did not have an emergency medical condition because no physician would consider contractions to be active labor during the second trimester in the setting of fetal demise. The absence of active labor, the reasoning continues, rules out the presence of an emergency medical condition.

You can see that the two sides diverge in terms of what constitutes an EMTALA violation. The plaintiff's argument focused on the black letter law of EMTALA to establish her position that the hospital failed to identify and treat an emergency medical condition, while the defendant hospital's position relied on the notion that she did not have an emergency medical condition because the medical community would not treat the plaintiff's presenting condition as active labor.

Ultimately, the defendant hospital's position would require the district judge to “write into” EMTALA law that second trimester contractions in the setting of fetal demise is not active labor. The plaintiff had the better argument because an argument that firmly relies on the plain meaning of the relevant statute always wins in district court. It is not the role of the district court, in other words, to legislate from the bench and rewrite EMTALA law.

The impact of Morin : The power of EMTALA to change standard of care. The court in faithfully following the black letter law of EMTALA may suggest a new medical standard of care. Physicians may admit patients with the same condition as the plaintiff in Morin to avoid an EMTALA violation. But what physicians seem most fearful of is the extrapolated result: the seven-week gestation intrauterine pregnancy with low abdominal cramping and back pain that later aborts. Should this patient also be admitted for fear of violating EMTALA? A federal court that applies the same analysis may come to the same conclusion.

Amendments and interpretative guidelines are necessary to clarify the statute and its legislative purpose and to prevent improper verdicts because of EMTALA's complexity. An example of an improper verdict would be the Baby K case, in which a federal district court affirmed that a hospital under EMTALA must stabilize an anencephalic infant with a tracheostomy who presents in respiratory distress. EMTALA requires us to practice medical futility as well.

The Morin case is an example of how federal courts curiously claim that EMTALA is not a federal malpractice statute yet federal court decisions may change physicians' practice behavior. Most concerning to me is how federal courts may elect to ignore standards of care in determining that a physician has violated EMTALA, which ironically creates a new standard of care that physicians must subsequently follow. The Morin court noted: “[EMTALA] treats pregnant women differently and imposes a specific definition of ‘emergency medical condition,’ which may or may not comport with what a physician would determine.”

The court in Morin also told the jury that EMTALA's definition of an emergency medical condition for a pregnant woman with contractions was when discharge “may pose a threat to the health or safety of the woman or the unborn child.” Essentially, the judge instructed the jury to determine if the physician's discharge of a pregnant patient may pose a threat to her, knowing that the patient had a complicated miscarriage within 24 hours of discharge. To make matters worse, the jury's hindsight bias was not tempered by a standard-of-care defense because EMTALA is not a claim of physician negligence. Contrast this with a medical malpractice case where, under these same facts, meeting the medical standard of care would be a complete defense.

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