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Unfortunately, in America, healthcare is a business. As a result, when healthcare providers focus on turning a profit rather than the medical care that they should be providing, it can mean some patients get left out because they cannot pay. This was a serious dilemma back in the 1980s, as hospitals and other healthcare facilities would “dump” patients who showed up at their doors with emergency conditions but without the means to pay for the treatment that they needed. Instead of treating these patients, hospitals would drive them to another hospital, instead. To prevent this from happening, the federal government passed the Emergency Medical Treatment and Active Labor Act (EMTALA) in 1986, which required participating hospitals to accept a Medicare payment for performing a medical screening examination.
EMTALA has proven to be an incredibly important piece of the emergency healthcare system in the United States, allowing people who desperately need medical attention to get it, even if they might not be able to pay for it, up front. While this has given access to emergency healthcare to those who need it, hospitals and lobbyists for the healthcare industry have been quick to point out its costs, as well.
Patient Dumping and Hospital Profiteering
In the late 1970s and early 1980s, as the American healthcare system became increasingly privatized, entrepreneurs and businesses professionals began entering the healthcare industry and changing hospital protocols and policies to increase the amount of profit they were able to bring in. As this turned the focus of the American healthcare system and made it increasingly business-oriented in the 1980s, more and more hospitals tried whatever they could do to prevent low-income patients, who were unlikely to pay their entire bill, from taking the attention of their doctors and their facility’s medical supplies from those patients who were more likely to pay their bills.
The favorite tactic of many privately-owned hospitals was to “dump” low-income patients to other, typically public, hospitals: If someone who was desperately in need of medical attention tried to check into their hospital, hospital management would transfer them a public hospital if there were signs that the patient would not be able to pay their medical bills, falsely claiming that the public hospital was a better place for them to receive the medical attention they needed.
This practice did not actually violate any laws. It went against numerous ethical codes, such as one provision in the Joint Commission on Accreditation of Hospitals that “individual shall be accorded impartial access to treatment or accommodation that are available or medically indicated, regardless of… sources of payment for care.” These ethical codes, however, did not have practical enforcement mechanisms or were not legally binding, allowing hospitals to violate them with impunity.
These money-saving tactics remained largely underground until two articles published in medical journals in 1986 and 1987 brought these problems to light. The first, published in February 1986 in the New England Journal of Medicine, tracked 467 patients who had been transferred from emergency rooms in the Chicago area to the publicly-owned Cook County Hospital. Of these 467 patients:
- 89% were black or Hispanic,
- 81% were unemployed,
- 87% lacked adequate medical insurance for the medical attention they were seeking,
- Only 6% had given their written consent to be transferred to another hospital,
- 22% needed care in the Cook County Hospital’s intensive care unit, often within 24 hours of arrival,
- 24% were transferred in a medically unstable condition, and
- 9.4% of the patients who were transferred died from their condition, compared to the 3.8% of patients who were not transferred.
Another study, published in March 1987 in the Journal of the American Medical Association, followed up on the findings of the first and found that the laws and regulations dealing with patient dumping were so relaxed that they were unworkable.
The Emergency Medical Treatment and Active Labor Act
The Emergency Medical Treatment and Active Labor Act (EMTALA), codified as 42 U.S.C. §1395dd was the response of the federal government to these pressing healthcare concerns. The law made its way through the U.S. Congress under the radar, as it was a small, 4-page bill that was included in the larger Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). This larger bill attracted lots of attention because of the wide breadth of its provisions, which included portions that were to have a significant impact on insurance companies and how they covered employees after their period of employment ended, as well as crucial changes to the Employee Retirement Income Security Act (ERISA). The small portion of the COBRA bill that ended up being codified as the EMTALA law, therefore, did not attract much attention until after it was passed by Congress and signed by then-President Ronald Reagan in 1986.
In its essence, EMTALA requires all “participating hospitals” to provide a “medical screening examination” to patients, without regard to their citizenship, their legal status, or their ability to pay for that examination. Once this screening examination has been provided, EMTALA prohibits the hospital from transferring or discharging the patients without cause, unless the patient has given their informed consent or have been medically stabilized. These definitions, thankfully, have been expanded widely enough to include nearly all hospitals and cover as many patients as possible.
Unfortunately, critics of EMTALA make a lot of the fact that the law’s mandate to hospitals is unfunded, meaning the healthcare facilities that provide emergency care to EMTALA-covered patients end up taking an uncompensated financial loss for the treatment that they provide.
Participating Hospitals in EMTALA
Importantly, the EMTALA provision that specifies what hospitals are covered by the law is extremely far-reaching, allowing patients in need of emergency coverage to get it nearly anywhere that they seek it.
Under 42 U.S.C. §1395dd (e)(2) of the EMTALA law, any hospital that receives money under the Medicare program administered by the Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS) are covered by EMTALA’s requirements. As a result, any hospital that accepts Medicare is legally required to take patients who need emergency medical attention under EMTALA.
Practically speaking, this means that nearly any hospital that does business in the U.S. is covered under EMTALA’s mandates to provide emergency medical care to anyone who needs it: 98% of hospitals in America take Medicare coverage, and the financial benefits of taking patients covered by Medicare far outweighs the financial losses of refusing to treat people who desperately need emergency medical care, but who cannot pay for it. In fact, an estimated $602 billion of Medicare and Medicaid payments were made to healthcare providers in 2004, accounting for nearly half of medical expenses in the country. Missing out on this source of income has proven to be a strong deterrent for hospitals who do not want to treat poor patients who need emergency medical care.
The Medical Screening Examination Required by EMTALA
While EMTALA is extensive in its requirement that hospitals provide medical care to those who are desperately in need of it, it is far less demanding in the extent of the care that needs to be provided.
EMTALA requires participating hospitals to provide a “medical screening examination” to determine if the patient has an emergency medical condition that requires immediate medical care. Under 42 U.S.C. §1395dd (e)(1), an “emergency medical condition” is a medical condition with symptoms that make medical attention reasonably necessary to prevent putting the patient’s health in serious jeopardy, avoiding serious impairment to bodily functions or preventing serious organ damage.
Medical Care Required by EMTALA
If the medical screening examination that is required by EMTALA reveals an “emergency medical condition” under 42 U.S.C. §1395dd (e)(1), then the hospital is legally required to provide enough medical care to stabilize the patient or appropriately transfer the patient to another hospital that is more adept at the care that the patient needs. This means the hospital needs to provide enough medical treatment that makes it unlikely for a significant deterioration to occur.
Of course, the exact medical requirements to “stabilize” a patient varies, depending on the exact medical condition that the patient is suffering from. However, EMTALA’s requirements prevent the hospital from discharging or dumping patients without at least stabilizing their condition. If the medical condition requires the hospital to shift the patient from outpatient care to inpatient care, then the legal requirements of EMTALA end and are replaced by the legal requirements of the state’s medical malpractice laws.
Hospital Transfers Under EMTALA
The lawmakers who created EMTALA recognized the fact that sometimes, despite the prevalence of the practice of patient dumping, a hospital transfer is done in the best interest of the patient who is being moved. Some patients have medical conditions that are best treated at a nearby hospital – for example, burn patients who come to an emergency room that does not have a burn unit should be transferred to a nearby hospital that does have such a unit, in order to get the kind of medical care that they need.
Because of this, EMTALA leaves open the possibility of hospitals making an “appropriate transfer.” Whether a transfer from one hospital to another is “appropriate,” unfortunately, depends on numerous factors, though they center on the pros and cons of the transfer to the patient’s health. Hospitals making a transfer are required under EMTALA to report the transfer to CMS, allowing the Medicare program to supervise participating hospitals, enforce EMTALA’s requirements, and penalize offenders with fines of up to $50,000 for each violation.
Critics of EMTALA Focus on Costs
Despite the fact that EMTALA has done more than nearly any other U.S. law to ensure that low-income and needy patients get the emergency healthcare that they need to stay alive, there have still been strong critics and advocates against the legislation. These critics have focused their attention on the fact that EMTALA puts the risk of loss squarely on the shoulders of the hospitals that provide the required medical care.
According to CMS’s own numbers, approximately 55% of the medical care that was done in a U.S. emergency room in 2002 ended up going uncompensated for the hospitals that performed it. Critics of EMTALA stress the fact that hospitals cover this loss by either charging more for their services, moving the costs of healthcare from those who cannot pay for it onto the backs of those who can or writing off the loss. According to a 2004 report by the Kaiser Commission on Medicaid and the Uninsured, uncompensated care rose from $6.1 billion in 1983 to $40.7 billion in 2004. However, these numbers do not include a breakdown of which expenses were created or linked to patients covered by EMTALA.
Maryland Medical Malpractice Attorneys at Gilman & Bedigian
These critics, however, overlook the simple fact that EMTALA has been one of the biggest reasons why poor people with serious and emergency medical conditions can get the medical care and attention that they need. The social and ethical benefits of these people getting the kinds of medical care that they desperately need vastly overwhelm the relatively small costs that others might have to pay to ensure they get it.
However, there are still hospitals who discriminate against EMTALA patients, whether in clear violations of the law or in lesser ways that might not be apparent. For example, EMTALA-eligible patients might not receive the full attention of a medical professional who knows and understands that the patient might not be able to pay for the full cost of the medical care they are about to receive. This can become a medical malpractice issue if the doctor’s conduct amounts to such egregious negligence that it results in the EMTALA patient getting hurt.
If you suspect that you or someone you love was hurt in a medical malpractice situation, you need legal help. Reach out to the medical malpractice attorneys at the law office of Gilman & Bedigian by calling our law office at (800) 529-6162 or contacting us online for a free consultation.