In 1986, Congress enacted the Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C.S. § 395dd, which requires treatment of any person coming to an emergency department regardless of their insurance status or ability to pay. This is commonly referred to as the “anti-dumping” law. Although EMTALA is a federal regulation, hospitals and other healthcare facilities are subject to civil liability for EMTALA violations. Thus, it is important for hospitals to implement and enforce adequate policies and procedures to ensure compliance.
What Does EMTALA Require?
EMTALA applies when an individual presents at an emergency department with an emergency condition. An emergency condition is defined as “a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain)” which, absent immediate medical attention, could reasonably be expected to result in: (i) placing health in serious jeopardy, (ii) serious impairment to bodily function, (iii) or serious dysfunction of any bodily organ. 42 U.S.C.S. § 395dd(e)(1).
Under EMTALA, if an emergency department determines the individual has an emergency condition, the hospital must either provide treatment to stabilize the medical condition or transfer the individual to another medical facility. In regard to transfers, an individual with an emergency medical condition that has not been stabilized may not be transferred, unless:
- The individual requests transfer to another medical facility.
- A physician has signed a certification stating that the medical benefits expected from treatment at another facility outweigh the increased risk to the individual.
- The transfer is made to a facility that has available space, qualified personal, and has accepted the transfer.
If the individual refuses further medical treatment or refuses to consent to a transfer, the hospital has met the requirements under EMTALA only if the hospital informed the individual of the risks and benefits and took reasonable steps to obtain written informed consent. It is imperative that hospitals keep adequate records relating to informed consent to avoid liability.
Which Healthcare Providers Are Subject to EMTALA?
EMTALA applies to hospitals with emergency departments participating in Medicare, offsite urgent care facilities owned by hospitals, and physicians providing services at these facilities, including on-call physicians.
Civil Actions Under EMTALA:
In addition to government fines for EMTALA violations, an individual may bring a civil action against participating hospitals under the law of the state where the hospital is located. This allows plaintiffs to obtain damages for personal injury as well as equitable relief. Of note, another medical facility may also bring a civil action against a participating hospital for financial losses suffered as a direct result of the participating hospital’s refusal to treat or improper transfer. The statute of limitations for both actions is two years after the date of the EMTALA violation.
As recognized by the Nebraska Supreme Court in Gestring v. Mary Lanning Mem’l Hosp. Ass’n, 259 Neb. 905, 613 N.W.2d 440 (2000), a hospital’s liability under EMTALA is not grounded upon tort. Rather, “it is predicated on the hospital’s violation of a federal statute, making the hospital strictly liable for any personal harm that directly results from that violation.” Gestring, 259 Neb. at 920, 613 N.W.2d at 452 (emphasis added). This allows a plaintiff to essentially recover under two separate and distinct theories—one arising from malpractice law and the general principles of negligence and the other arising from violation of EMTALA. Id.
Because a hospital is strictly liable for EMTALA violations, the plaintiff only needs to show the hospital did not follow the exact statutory requirements and such failure caused injury. This allows a plaintiff to recover against a hospital despite failing to prove medical malpractice.
Tips for Ensuring Compliance With EMTALA:
Given the risks of litigation and fines for EMTALA violations, participating hospitals should take adequate steps to ensure their emergency departments meet EMTALA’s requirements. Here are some examples of steps hospitals can implement to maintain compliance:
- Implement uniform patient screening policies
- Do not delay patient screening while assessing the patient’s ability to pay
- Document efforts to inform patients of the risks and benefits to treatment or transfer to another healthcare facility
- Document all instances in which patients refuse treatment or transfer and require patients to sign written informed consent forms
- Educate emergency department staff and providers on EMTALA
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