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.

No relief; EMTALA doesn’t cover medical malpractice claims

A U.S. District Court in Alabama has dismissed a claim brought by a patient against the Health Care Authority of the City of Huntsville (the Hospital). The patient, a woman who came to the emergency room, alleged the hospital violated EMTALA by failing to conduct an appropriate screening exam and stabilize her after her admission to the hospital. The hospital moved to dismiss the lawsuit claiming they screened her appropriately and stabilized her after she arrived. The court held that the hospital met EMTALA requirements and granted motion to dismiss under Federal Rules of Civil Procedure 12(b)(6) (Baker v Health Care Authority of the City of Huntsville, July 9, 2019, Kallon, A.).

The court looked to the EMTALA requirements to determine whether the patient stated a claim for which relief could be granted. The court noted that congress enacted EMTALA to prevent hospitals from turning away or transferring indigent patients without evaluation or treatment. The court noted that to prevail on the patients EMTALA claim she must plead facts showing that the hospital violated the appropriate medical screening or stabilization requirements.

Screening requirement

EMTALA requires that when a person goes to the emergency room for an exam or treatment, the hospital must provide for an appropriate medical screening exam. The screening must be within the capability of the emergency room to determine whether or not an emergency medical condition exists. It also requires that indigent patients receive similar care to anyone else that would be screened in the emergency room with similar symptoms.

Under the facts of this case, the woman was given four screenings within an hour of arrival in the emergency room. She was diagnosed with a hypertensive emergency and admitted to the hospital. Several hours later she was examined again and properly diagnosed with a stroke. The woman argues that because she was not diagnosed with a stroke earlier, the hospital did not conduct a proper screening. The woman did not allege any facts to show that she was screened differently from any other patient. The court held that as long as the hospital screened her similarly to any other patient with the same symptoms there is no liability under EMTALA.

Stabilization requirement

Under EMTALA the stabilization requirement has to do with transferring the patient to another facility. The statute requires that the hospital treat the emergency condition as necessary to assure with reasonable medical probability that no material deterioration of the condition occurs during transfer of the patient. The court found that the EMTALA obligation to stabilize ends when the patient is admitted to the hospital and not transferred. In this case the woman was admitted to the Huntsville Hospital and therefore the woman would have had to plead facts to show that the hospital admitted her with intention to subterfuge to avoid EMTALA liability. Since she did not allege any facts to support that allegation the court holds that she has not alleged a plausible claim for violations of EMTALA’s stabilization requirement.

Holding

The court found that the woman’s allegations against the hospital for failure to provide her with timely and necessary treatment may support a malpractice claim but do not fall under a violation of the EMTALA statute. The woman would have had to show that the hospital treated her differently than other patients who presented with similar symptoms. The claim was dismissed under Rule 12(b)(6) and the court declined to exercise supplemental jurisdiction over her state law claims.

Hospitals pay nearly $1 million over ABC television documentary

After allegations that the privacy of patients was compromised by inviting film crews for an ABC television documentary series without first obtaining authorization, three hospitals in Boston have agreed to pay nearly $1 million to settle potential violations. The HHS Office for Civil Rights (OCR) has reached separate settlements with Massachusetts General Hospital (MGH), Brigham and Women’s Hospital (BWH), and Boston Medical Center (BMC) for compromising the privacy of patients’ protected health information (PHI) by inviting film crews for an ABC television network documentary series, without first obtaining authorization from patients. Collectively, the three entities paid OCR $999,000 to settle potential violations of the HIPAA Privacy Rule. HHS has also provided specific guidance about the Health Insurance Portability and Accountability Act (P.L. 104-191) and media coverage, including direction that blurring or pixilation is insufficient to protect patient privacy (Resolution Agreement, August 3, 2018; Resolution Agreement, September 6, 2018; Resolution Agreement, September 6, 2018).

Settlements 

To resolve potential HIPAA violations, MCH agreed to pay $515,000, BWH agreed to pay $384,000, and BMC agreed to pay $100,000. Each entity also agreed to provide workforce training as part of a corrective action plan that will include OCR’s guidance on disclosures to film and media. HHS initiated the investigation of BWH based on information in a Boston Globe newspaper article that indicated BWH permitted ABC News to film a medical documentary program at BWH. HHS also initiated of an investigation of MGH based on a news story posted to MGH’s website indicating that ABC News would be filming a medical documentary program at MCH.

This is the second HIPAA case involving an ABC medical documentary television series. In 2016, New York-Presbyterian Hospital entered into a settlement in association with the filming of “NY Med.” “Patients in hospitals expect to encounter doctors and nurses when getting treatment, not film crews recording them at their most private and vulnerable moments,” said Roger Severino, OCR director. “Hospitals must get authorization from patients before allowing strangers to have access to patients and their medical information.”

Guidance on media coverage

HHS reaffirmed that health care providers cannot invite or allow media personnel, including film crews, into treatment or other areas of their facilities where patients’ PHI will be accessible. This includes any written, electronic, oral, or other visual or audio form, or otherwise make PHI accessible to the media, without prior written authorization from each individual who is or will be in the area or whose PHI otherwise will be accessible to the media. It is not sufficient for a health care provider to request or require media personnel to mask the identities of patients. Using techniques such as blurring, pixelation, or voice alteration software for whom an authorization was not obtained is insufficient.

Only in very limited circumstances does the HIPAA Privacy Rule permit health care providers to disclose protected health information to members of the media without a prior authorization signed by the individual. For example, a covered entity may seek to have the media help identify or locate the family of an unidentified and incapacitated patient in its care. The HIPAA Privacy Rule does not require health care providers to prevent members of the media from entering areas of their facilities that are otherwise generally accessible to the public, which may include public waiting areas or areas where the public enters or exits the facility. A health care provider may also utilize the services of a contract film crew to produce training videos or public relations materials on the provider’s behalf if certain protections are in place.

What compliance professionals should know about auditing physician compensation arrangements

In an environment of increasing integration and financial relationships with physicians; a rigid and technical regulatory framework; aggressive government enforcement; and disproportionate penalties and enterprise risk under the Stark Law (42 U.S.C §1395nn), it is incumbent for health care organizations to have an audit plan and process for physician compensation arrangements to ensure such arrangements comply with Stark law requirements. In a webinar presented by the Health Care Compliance Association (HCCA), Curtis H. Bernstein, Principal, Pinnacle Healthcare Consulting and Joseph N. Wolfe (Hall, Render, Killian, Heath & Lyman, P.C.) provided insight into considerations for managing risks, an overview of the Stark Law and its exceptions, and tips for planning an audit and the audit process.

Managing the risk

Wolfe stressed the importance of ensuring that compensation arrangements with referring physicians are defensible. When it comes to compensation arrangements, organizations should ask, “How will the organization defend itself?” Wolfe recommended that the organization focus on the Stark Law’s technical requirements, which were updated in 2016, and the three tenets of defensibility: (1) fair market value, (2) commercial reasonableness, and (3) not taking into account the value or volume of referrals. Wolfe emphasized the need for health care providers that enter into physician arrangements to ensure that individuals involved in the process have an in depth understanding the Stark regulations and the exceptions

The plan and the process

Bernstein explained that the scope of the audit depends on the size and complexity of the company, prior experience with the process under audit, recent changes in the company or company’s operations, and previously recognized deficiencies, as well as circumstances that may arise during the audit. The audit process involves several steps.

  • A list of currently executed physician contracts must be compiled.
  • Compliance personnel must interview individuals commonly involved in physician relationships. The individuals conducting the audit should understand interview processes, including strategy, documentation, approval, and selection of interviewees.
  • The interviews must be reconciled to currently executed physician contracts. Common issues arising in reconciliation include the use of space, office equipment, and other items by physicians for professional or personal use, and payment for services not provided.
  • Time sheets or other attestation forms must be reviewed for completeness and accuracy.
  • Fair market value and commercial reasonableness must be documented for each agreement. Consider:
    • Who is providing the service?
    • Why are the services required?
    • When are the services performed?
    • How are the services provided?
  • All other terms of agreement and necessary steps must be performed in executing agreements and verified.

Bernstein noted that other items to consider during the process include the compensation structure, the length of a fair market value opinion versus the length of the contract, whether the compensation was set in advance, if the agreements were executed, and whether the agreements expired.

The compliance component

While the basic elements of an effective compliance program apply to physician arrangements, Wolfe explained that as compliance applies specifically to physician arrangements, it should be compensation focused and documentation and governance should support defensibility. He recommended that organizations adopt a compensation philosophy, have a written compensation plan, establish parameters for monitoring compensation, and form a compensation committee. In addition, organizations should (1) ensure that policies align with the new Stark technical requirements; (2) establish a consistent process for obtaining third party valuation opinions; and (3) periodically audit physician compensation arrangements. Finally, organizations should continue to monitor the enforcement climate.