EMTALA claim for failure to provide medical screening dismissed, claim for failure to stabilize medical condition proceeds

Medical screening claims under the Emergency Medical Treatment and Active Labor Act (EMTALA) must assert a failure to screen or improper screening, a district court in Missouri held, granting in part and denying in mart a hospital’s motion to dismiss EMTALA claims. The case was allowed to proceed on the patient’s claim for failure to stabilize her medical condition in violation of EMTALA. The patient’s claims for failure to provide appropriate medical screening in violation of EMTALA and medical malpractice were dismissed (Pennington-Thurman v. Christian Hospital Northeast, October 22, 2019, Cohen, P.).

Procedural history

A patient arrived at the hospital’s emergency department with severe leg cramps, received narcotic pain medication, vomited, and objected to being discharged because she felt ill. The patient was nonetheless discharged and left in the wheelchair in the waiting room. The patient filed a complaint against the hospital and its physician seeking monetary relief for alleged violations of the EMTALA (42 U.S.C. §1395dd) and claims of medical malpractice. The patient claimed the hospital violated EMTALA by failing to: (1) provide appropriate medical screening because they believed the patient lacked health insurance; and (2) stabilize the patient prior to discharge.

EMTALA claims

The hospital moved for dismissal of the patient’s EMTALA claims because the patient failed to plead factual allegations suggesting: (1) she received no screening; (2) she received improper screening for a discriminatory purpose; (3) she received screening that was different from other patients with charley-horse cramps; and (4) she had an emergent condition that the hospital failed to stabilize.

Failure to screen

The hospital argued that the patient’s complaint failed to state a claim for any of the three categories of failure to screen: (1) failure to screen at all; (2) improper screening of patients for a discriminatory reason; (3) and screening a patient differently from other patients perceived to have the same condition. The court held that the patient did not allege that the hospital failed to screen her at all since the complaint’s factual allegations established that the hospital’s nursing staff and physician examined her, performed blood work, and treated her pain. Regarding the second and third categories, the court held that the patient did not allege that patients perceived to have insurance and the same medical condition were screened or treated differently than she was. Moreover, the patient failed to state how the hospital allegedly deviated from its normal screening process. Therefore, the court found that she did not plead facts to support a claim either that the hospital screened her differently from other patients with similar conditions or failed to appropriately screen her for a discriminatory reason. As a result, the court dismissed the patient’s claim that the hospital failed to provide appropriate medical screening in violation of EMTALA.

Failure to stabilize

The hospital argued that the patient failed to state a claim under EMTALA for failure to stabilize her medical condition because the complaint established that the patient treated her emergency medical condition with pain medication and resolved her pain prior to discharge. The court declined to find on a motion to dismiss either that: (1) a reaction to medication that includes vomiting is not an emergent medical condition; or (2) a patient who vomits and feels ill while in the emergency department is stabilized and therefore fails to state a claim under EMTALA. Accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party, the court found that the patient sufficiently alleged that she had an emergent medical condition and the hospital failed to stabilize her condition prior to discharge. As a result, the court denied the hospital’s motion to dismiss the patient’s failure to stabilize claim.

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CMS revises standards to strengthen oversight of nursing home inspections

As part of CMS’s efforts to improve nursing home resident safety and respond to concerns about inconsistent and untimely inspections, CMS has revised the State Performance Standards System (SPSS) process. The updates to the SPSS aim to enable CMS and State Agencies to address areas of concern more effectively and ultimately improve beneficiary safety and the quality of their care (CMS Letter to State Survey Agency Directors, Admin Info: 20-02-ALL, October 17, 2019).

Structural changes

Included in the changes to the SPSS guidance is a new non-scored tier of measures that includes frequency run-rates and State Performance Indicators. Frequency run-rates measure goals during the fiscal year will be published in the form of a quarterly data extract. These frequency run-rates will be useful to assess mid-year progress made towards meeting Frequency measures during the fiscal year. The State Performance Indicators will help identify underlying causes for inadequate performance in one or more of the scored performance measures.

Domain changes

Within the Frequency Domain, a new process for State Survey Agencies to request permission from CMS to exclude surveys from frequency measure calculations is included in the guidance. It was also updated to include an evaluation of the timely completion of initial certification surveys for the End Stage Renal Disease (ESRD) program. Sub-domains were established within the Quality Domain that focus on the standard survey and complaint survey processes, separately. The method of evaluating and the criteria associated with the documentation of deficiencies was revised to reduce subjectivity and burden. Finally, the Enforcement Domain was renamed “Coordination of Provider Noncompliance,” to more accurately reflect the role of State Survey Agencies.

Guidance

The guidance provides instructions to Regional Offices on how to evaluate State Survey Agency performance. Measures should be calculated according to the specific instructions for each measure in the guidance and the scores should be entered into the database within the CMS SharePoint site. The guidance provides a timeline for the evaluation period along with deadlines. For each measure that is scored as “not met,” the State Survey Agency should develop and implement a corrective action plan that will address identified problems. The guidance also provides direction as to how and when the Regional Office should follow-up on progress toward making corrections.

Chiding parties, court grants doctor sanctions for manufacturer’s failure to disclose witnesses

In an animated opinion, a judge grants a request for sanctions against Boston Scientific for failure to disclose witnesses after a long history of discovery disputes.

Noting that it was “[c]learly. . . not enamored with the parties’ conduct,” a district court judge in Minnesota found that Boston Scientific Corporation (BSC), a medical device manufacturer, failed to fully disclose certain witnesses and therefore granted, in part, a doctor’s motion for sanctions in a False Claims Act (FCA) (31 U.S.C. §3729 et seq.) action. Although the court found that both parties “share the blame as to certain discovery woes,” it found that the medical device manufacturer engaged in a shell game by failing to disclose four individuals as having specific knowledge of certain relevant information (U.S. ex rel Higgins v. Boston Scientific Corp., October 16, 2019, Rau, S).

Discovery proceedings

Initially, the doctor filed a qui tamaction on behalf of the government, alleging that the manufacturer violated the FCA. The doctor claimed that the manufacturer sold defective medical devices and that it provided kickbacks. Following the outcome of several procedural motions, the doctor filed his Second Amended Complaint. The court began the road of guiding the parties through discovery. Initially, the parties appeared to work cooperatively and productively, parsing out electronically stored information (ESI) search terms and custodians. However, later, the parties reported that they were at an “impasse” regarding certain issues. The court provided a step-by-timeline of discovery, including agreements and disputes. At some point, it became apparent that discovery had broken down. During the course of discovery, the doctor filed several motions to compel. In each instance, the court found in the doctor’s favor.

Later, the doctor raised several issues, including the manufacturer’s last-minute amendment to its initial disclosure. Specifically, on the last day of discovery, the manufacturer disclosed seven new individuals it might use to support its claims or defenses, four of which had information about FDA correspondence and submissions. Those four, along with others, were not disclosed as custodians. The doctor subsequently filed this motion for sanctions.

The court found that the manufacturer left off from its initial disclosure the individual who was a “central witness” regarding the manufacturer’s communications with the FDA about the relevant medical devices, along with several other individuals. The court rejected the manufacturer’s contention that it had no affirmative obligation to amend its disclosure to add the individuals. With respect to one individual, the manufacturer claimed he was referenced in hundreds of documents, but according to the court, those represented only a small number of the total documents produced. In its ruling, the court found the manufacturer’s logic was flawed. Among other things, the court questioned how, if the manufacturer made a truthful and fulsome response to the government’s FCA investigation, it failed to recognize the import of the newly-disclosed individual’s knowledge. Instead, the court said it was convinced that the manufacturer engaged in malfeasance.

According to the court, manufacturer misled the doctor. The initial disclosures were the foundation for all discovery, and the manufacturer’s failure to disclose the newly-disclosed individuals prejudiced the doctor throughout discovery. The court suggested that the manufacturer knew what it was doing. The court claimed that the manufacturer’s failure to disclose was not an oversight, but a strategy that coincided with baseless legal arguments regarding that and other discovery issues, leading to gamesmanship the court said it wound not reward.

Turning to the sanctions to be levied, the court said that rules of procedure makes exclusion of evidence the default, self-executing sanction in the event a party fails to comply disclosure rules. However, the rule permits imposition of alternative sanctions. In this instance, exclusion of the witnesses’ testimony would be detrimental to the doctor and would reward the manufacturer. Accordingly, the court ordered the manufacturer to produce documents from the newly-disclosed witnesses and the doctor was granted leave to depose the four individuals. Additionally, the manufacturer was barred from using documents or testimony that it could not affirmatively show was produced to the doctor during discovery or in light of the ruling at hand. The manufacturer was also ordered to pay the doctor’s costs and attorneys’ fees incurred in filing the motion for sanctions and for the additional discovery.