Cases and Comments on Contracts

Part 16: EMTALA = Strict Liability

by Robert V. West, MD JD FAAEM

The Supreme Court in Roberts v. Galen suggested that liability under EMTALA attached to the health care providers without regard to their fault. That concept is termed strict liability under legal theory and basically implies that a person is responsible for his action irrespective of being aware that he is at fault. It is kind of like getting a speeding ticket, the officer and the judge don't care whether you knew you were speeding or not, you are still liable and presumed guilty.

The following list of fines imposed on health care providers gives one a taste for the fines that can be imposed under EMTALA and supports the notion that there indeed may be strict liability.

EMTALA/COBRA Fine Updates

Between October 1, 1999, and March 31, 2000, OIG collected $643,500 in settlement amounts from 24 hospitals and physicians. The following is a sampling of the alleged violations involved in the FY 2000 Patient Anti-Dumping Statute settlements from this reporting period.

The OIG is authorized to impose CMPs of up to $25,000 against small hospitals (less than 100 beds) and up to $50,000 against larger hospitals (100 beds or more) for each instance where the hospital negligently violated any of the section 1867 requirements. In addition, OIG may impose a CMP of up to $50,000 against a participating physician, including an on-call physician, for each negligent violation of any of the section 1867 requirements.

Further, a participating hospital with specialized capabilities or facilities may not refuse to accept an appropriate transfer of an individual who needs those services if the hospital has the capacity to treat the individual.

A small Indiana psychiatric hospital paid $30,000 to settle allegations that it failed to provide appropriate medical screenings and transfers for two patients. One of the patients had a clear emergency medical condition, but was not screened or treated because he was not able to come up with a $2,000 down payment for medical services.

In Maryland, a small hospital settled allegations that it failed to provide appropriate medical screening examinations in a number of cases where only the patients' vital signs were taken before they were discharged. The patients' primary care providers had been called for payment authorization, and such authorization was denied. One patient had been kicked in the face and presented with jaw pain, missing teeth, and bleeding; another patient was having difficulty breathing and sleeping, and had been vomiting. The hospital settled for $60,000.

After a hearing, an administrative law judge imposed a $25,000 CMP on an Oklahoma hospital which refused to accept the appropriate transfer of a patient who had been critically injured in an automobile accident and required emergency vascular surgery. The transferring hospital did not have the specialized capabilities or facilities that were required to treat the life threatening injury to the patient's abdominal aorta. After numerous calls to hospital emergency rooms and physicians, the patient was transferred to a hospital where surgery was performed in an attempt to save his life. The patient, however, died from his injuries and their after effects. The Oklahoma hospital has filed an appeal with the Departmental Appeals Board.

In order to resolve allegations that it failed to provide appropriate medical screenings for several individuals, a California hospital paid $67,000 in penalties. In one case, a patient was asked to pay for services prior to being treated. In others, managed care companies denied payment authorization and/or patients were instructed to see their doctors or go to a clinic instead of being seen at the hospital. Patients presented to the hospital with conditions including multiple dog bites and pneumonia.

A small Arkansas hospital settled an allegation that it failed to provide a one-year old patient a medical screening examination by paying $15,000. The infant presented with a high fever and earache, and exhibited extreme discomfort when held. Two days later she was diagnosed at another hospital with bacterial meningitis. She is permanently deaf.

A California emergency physician agreed to pay $6,000 as he allegedly inappropriately transferred a patient with a suspected intercranial bleed. Although the physician provided the patient with a screening examination after being informed the patient's MCO had denied treatment, the patient was nonetheless inappropriately transferred in an unstable condition.

A hospital in Florida settled, for $35,000, an allegation that it failed to medically screen a patient with new onset of diabetes mellitus. The hospital allegedly refused treatment when the patient indicated he could not make a requested deposit and, instead, referred him to a clinic or the health department for treatment the next day. Upon leaving that hospital, however, the patient immediately presented to another hospital where he was admitted and discharged three days later.

An Oregon hospital paid $125,000 to settle allegations that it failed to provide several patients with appropriate medical screening examinations. The patients' MCOs denied payment authorization for treatment. In one instance, a patient presented to the emergency room complaining that he could not move the right side of his face. Another instance concerned a five-year old who presented with a stomach ache of several days duration. The next day a pediatrician saw this child and immediately sent him to surgery for a ruptured appendix. Also, in another instance, a pregnant patient who had sharp abdominal pain went by car to another facility, without being medically screened, apparently because of insurance concerns.