AN UPDATE ON VIOLATION OF THE FEDERAL "ANTI-DUMPING" ACT





By: MARK R. BOWER





This is a re-printed version of a Featured Article: "Proving a Separate Cause of Action in Malpractice Cases, for Violation of the Federal Anti-Dumping Act", 14/5 Verdicts, Settlements & Tactics, 147 (May, 1994); reprinted by permission, 66/6 N.Y.S. Bar Journal, 34 (Sept.-Oct., 1994).



Malpractice cases often involve the wrongful discharge of patients from hospital emergency rooms, sometimes with catastrophic consequences. In addition to the usual claims for malpractice, such situations may also give rise to a separate cause of action for violation of the Federal Emergency Medical Treatment and Active Labor Act ("EMTALA" for short, commonly referred to as the Federal "Anti-Dumping Act"), 42 U.S.C.A §1955(dd).

There have only been a few N.Y. state court cases which have pursued this route. The lack of experience with this cause of action is a result of most lawyers' being unaware that it is available. The only two known cases to go to verdict in the metropolitan N.Y.C. area were both handled by the author.

In 1994, we were awarded a $50,000 civil fine against a defendant hospital in N.Y. Supreme Court, Suffolk County, for violating the statute. The award was in addition to a substantial recovery for medical malpractice. This was the first case to go to verdict in a N.Y. State Court on this basis. (1), (2)

In October, 1996, we took a plaintiff's verdict for several million dollars against two Brooklyn Hospitals for failing to treat a patient with a medical emergency, but the Court dismissed the "anti-dumping" cause of action, holding (we believe incorrectly) that no private right of recovery is permissible. (3)



A. BACKGROUND ON THE FEDERAL "ANTI-DUMPING ACT":

The "Anti-Dumping Act" statute protects patients from being turned out of hospital emergency rooms and "dumped" into the street without proper care just because they were poor, or unprofitable, or lacked private insurance. See H.R. No 99-241, 99th Cong., 2d Sess. 27, reprinted in 1986 U.S. Code Cong. & Admin. News 42, 579, 605-606; Note, "Preventing Patient Dumping: Sharpening Cobra's Fangs, 61 N.Y.U. L. Rev. 1186, 1187-88 (1986); Cleland v. Bronson Health Care Group, 917 F.2d 266, 268 (6th Cir., 1990); Bryant v. Riddle Memorial Hosp., 689 F. Supp. 490, 492 (E.D. Pa, 1988). Congress compelled Medicare provider hospitals to provide treatment and stabilization to any patient who arrives at their emergency rooms, regardless of their (in)ability to pay for care. Since virtually every hospital in N.Y. accepts Medicare, one can safely conclude that every full-service hospital is a "provider hospital" within the statutory meaning. (4) Still, the fact that the defendant hospital is a "provider hospital" must be both pleaded and proved.

The statute provides a civil penalty of $50,000.00 for each violation (42 U.S.C. §1395dd[d][2]), in addition to whatever other damages are available under state law. The failure to treat an "emergency medical condition" triggers the statute:



"[Any] individual who suffers personal harm as a direct result of a participating hospital's violation of a requirement of this section may, in a civil action against the participating hospital, [also] obtain those damages available for personal injury under the laws of the State in which the hospital is located..... " 42 U.S.C. §1395dd[d][3][1].



Once it is found that the hospital has discharged a patient without "stabilizing" an "emergency medical condition", absolute liability is imposed by the statute. The EMTALA does not use the terms "negligence" or "malpractice" (42 U.S.C. §1395dd[d][3][A]). The courts have found that the absence of such terms was intentional, reflecting congressional intent to impose absolute, or strict, liability on a hospital for failure to comply with EMTALA's requirements. Abercrombie v. Osteopathic Hosp. Founders Ass'n., 950 F.2d 676, 681 (10th Cir., 1991); Reid v. Indianapolis Osteopathic Medical Hosp., 709 F. Supp. 853, 855 (S.D. Ind. 1989).

Although the legislation was prompted by the problem of patient "dumping," the statute itself contains no reference to indigence. It is not required that the plaintiff prove that the hospital's refusal to render proper care was economically motivated. See Collins v. DePaul Hospital, No. 91-8010 (10th Cir. April 28, 1992); Brooker v. Desert Hospital, 947 F.2d 412 (9th Cir. 1991); Gatewood v. Washington Healthcare Corporation, 933 F.2d 1037 (D.C. Cir. 1991); Cleland v. Bronson Health Care Group, 917 F.2d 277 (6th Cir. 1990); Jones v. Wake County Hospital System, 768 F.Supp. 538 (E.D.N.C. 1991); Urban v. King, 783 F.Supp. 560 (D. Kan. 1992); Lee v. Alleghany Regional Hospital Corporation, 778 F. Supp. 900 (W.D. Va. 1991); Burrow v. Turner Memorial Hospital, 762 F. Supp. 840 (W.D. Ark. 1991); Delaney v. Cade, 756 F. Supp. 1476 (D. Kan 1991); Deberry v. Sherman Hospital Association, 741 F.Supp. 1302 (N.D. Ill. 1990); Cardenuto v. N.Y.C. Health & Hosp. Corp., 156 Misc. 2d 361, 593 N.Y.S.2d 442, 40 Soc. Sec. Rep. Ser. 226 (1992).





B. THE ELEMENTS OF PROOF REQUIRED TO MAKE A PRIMA FACIA CASE:

To make out a prima face case for damages under the "Anti-Dumping Act", the plaintiff must prove the following:



1. The patient had an "emergency medical condition". An "emergency medical condition" is defined in 42 U.S.C. §1395dd[e][1] as "a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in (A) placing the patient's health in serious jeopardy, (B) serious impairment of bodily functions, or (C) serious dysfunction of any bodily organ or part.



2. The patient was not "stabilized", as defined in 42 U.S.C. §1395dd[e][4][B]; that is, whether "no material deterioration of the condition is likely, within reasonable medical probability, to result from the transfer of the individual from a facility."



3. That the patient was "transferred" (i.e. - discharged) from the hospital. Note that the word "transfer" has a specific statutory meaning, and is not used in the common sense, meaning being sent from one hospital to another; but means "the movement (including the discharge) of a patient outside a hospital's facilities at the direction of any person employed by .... the hospital." 42 U.S.C. §1395dd[e][5]. Ordinarily, this allegation will not be in serious dispute.



4. The patient suffered "personal harm as a direct result of a participating hospital's violation of this section...." 42. U.S.C. §1395dd[3]. Note that the "direct result" standard may be more exacting than the "proximate cause" standard which we are used to under state law requirements.





Plaintiff need not prove more than that to prevail.



The list of things the plaintiff need not prove is more impressive than the short list of what plaintiff must prove. Plaintiff need not prove that the hospital committed malpractice. Plaintiff need not prove that the diagnosis rendered was actually incorrect. Plaintiff need not prove that the hospital knew what the correct diagnosis was and discharged the patient despite it. Plaintiff only must prove that there was an "emergency medical condition" that was not "stabilized" prior to discharge from the Emergency Room. This view has been adopted by the New York Supreme Court in the leading case considering the application of the "Anti-Dumping Statute" under N.Y. State law, Cardenuto v. N.Y.C. Health & Hosp. Corp., 156 Misc. 2d 361, 593 N.Y.S.2d 442, 40 Soc. Sec. Rep. Ser. 226 (1992).





C. THAT THE DEFENDANT'S HOSPITAL RECORD CHARACTERIZES THE PLAINTIFF'S CONDITION AS "STABLE", IS UNAVAILING:



Most hospital records show that the patient's blood pressure, pulse, and respiratory rates were measured in the Emergency Room. There may be boxes on the Emergency Room records that are checked off, showing that the plaintiff's condition as "stable". However, these supposed "facts" are meaningless in the context of EMTALA claims, for several reasons.

First, the plaintiff may challenge the accuracy of the medical and nursing assessments made by the defendant's Emergency Room personnel. That the people charged with malpractice considered the patient "stable" does not mean that the patient was in fact stable, any more than the fact that they failed to diagnose an ailment meant that the patient had none. The defendant's self-serving assessment is challenged on the merits, and therefore is dispositive of nothing.

More importantly, however, is that the term "stable", as used in the statute, is a term of art and has a statutory definition different than the ordinary, lay usage. "Stabilized", as defined in 42 U.S.C. §1395dd[e][4][B], refers to whether "no material deterioration of the condition is likely, within reasonable medical probability, to result from the transfer of the individual from a facility." It does not mean that the plaintiff's vital signs were regular or normal - which is way "stable" is typically used in Emergency Room parlance. That may be all that the Emergency Room Records document.

Whether or not the plaintiff's condition was "stable" within the statutory meaning is a question of fact for a jury to determine. The defendant's insistence that the patient was stable, which plaintiff (and plaintiff's experts) dispute, is an argument which can only be decided by the trier of the facts. Summary judgment is unavailable.



D. THE MALPRACTICE AND EMTALA CAUSES OF ACTION MAY OVERLAP TO SOME EXTENT, BUT THAT DOES NOT INVALIDATE EITHER ONE:



Defense counsel may protest that the elements of a plaintiff's EMTALA claims parallel and/or duplicate the plaintiff's malpractice claims. That may be partially correct, but is irrelevant. If the plaintiff has valid claims on two or more legal theories, it is no defense to either one to argue that it overlaps a different, valid legal theory arises from the same facts and circumstances. (5) Malpractice claims are derived from common law principles of negligence; EMTALA claims are based on the violation of a specific statutory duty. Once it is found that the hospital has discharged a patient without "stabilizing" an "emergency medical condition" and that "direct harm" resulted therefrom, absolute liability is imposed by the statute, and the plaintiff need not prove the deviations (or departures) from the customary and usual standard of care which are the basis of the malpractice claims. The damages on the malpractice claims are compensatory; the damages on the EMTALA claims are statutory civil fines. That both claims arise from the same underlying facts is of no moment.



IT IS NO DEFENSE TO THE EMTALA CLAIMS FOR THE HOSPITAL TO ARGUE THAT ITS DISCHARGE OF THE PLAINTIFF WAS NOT ECONOMICALLY MOTIVATED, NOR THAT IT DID NOT KNOW THE TRUE NATURE OF THE PATIENT'S CONDITION:



The defendant may argue that the plaintiff's EMTALA claim "merely attacks the emergency room doctors' diagnosis", rather than "focusing on the patient dumping problem." Such an argument, if raised, demonstrates a fundamental lack of understanding of the EMTALA Law.

The plaintiff is not required to focus on the "patient dumping" problem. Although the legislation was prompted by the problem of "patient dumping," the statute itself contains no reference to indigence, and it is not required that the plaintiff prove that the hospital's refusal to render proper care was economically motivated. See Collins v. DePaul Hospital, No. 91-8010 (10th Cir. April 28, 1992); Brooker v. Desert Hospital, 947 F.2d 412 (9th Cir. 1991); Gatewood v. Washington Healthcare Corporation, 933 F.2d 1037 (D.C. Cir. 1991); Cleland v. Bronson Health Care Group, 917 F.2d 277 (6th Cir. 1990); Jones v. Wake County Hospital System, 768 F.Supp. 538 (E.D.N.C. 1991); Urban v. King, 783 F.Supp. 560 (D. Kan. 1992); Lee v. Alleghany Regional Hospital Corporation, 778 F. Supp. 900 (W.D. Va. 1991); Burrow v. Turner Memorial Hospital, 762 F. Supp. 840 (W.D. Ark. 1991); Delaney v. Cade, 756 F. Supp. 1476 (D. Kan 1991); Deberry v. Sherman Hospital Association, 741 F.Supp. 1302 (N.D. Ill. 1990); Cardenuto v. N.Y.C. Health & Hosp. Corp., 156 Misc. 2d 361, 593 N.Y.S.2d 442, 40 Soc. Sec. Rep. Ser. 226 (1992).

Rather, plaintiff should focus, as the law requires, on whether the plaintiff received the proper "screening procedures" to be sure that the patient was "stabilized" prior to discharge. To this end, the plaintiff's Emergency Medicine expert should criticize the hospital's care for failing to do the appropriate screening and tests, or failing to heed the results of such studies. The questions posed of the expert should be tailored to parallel the verbiage of the statute. The expert for the plaintiff should testify to the improper work-up; the lack of "stabilization" within the statutory definition; that a "material deterioration of the condition [was] likely, within reasonable medical probability, to result [and in fact, did result] from the transfer of the individual"; and that "direct harm" was suffered as a result.

The defendant may also argue that the plaintiff has to prove that "the hospital had actual knowledge of the patient's emergency medical condition" to violate EMTALA. A number of federal courts differ on whether this is correct. However, the leading N.Y. case, Cardenuto v. N.Y.C. Health & Hosp. Corp., 156 Misc. 2d 361, 593 N.Y.S.2d 442, 40 Soc. Sec. Rep. Ser. 226 (1992), explicitly rejected that contention. In Cardenuto, the Court found that on a superficial reading, the statute's wording seems to require the actual condition be diagnosed, but that a closer reading shows that the transfer provisions refer to "stabilization" and not correct diagnosis. Accordingly, the Court concluded that since the transfer provisions make no reference to whether or not the "emergency medical condition" was actually diagnosed or not, EMTALA is violated whenever a hospital discharges a patient without "stabilizing" her condition, whether or not it was diagnosed. (6) 593 N.Y.S.2d at 446.

Accordingly, a defendant's contention that "actual knowledge" of the correct diagnosis is required for an EMTALA claim, is just plain wrong. Several other Courts, in other states, have so found. The defendant's construction of EMTALA would have the unintended effect of federalizing state malpractice law. See Baber v. Hosp. Corp. of America, No. 91-2395, 14 Medical Liability Reporter 278 (Dec. '92); Gatewood v. Washington Healthcare Corp, 933 F.2d 1037 (D.C. Cir., 1991); Cleland v. Bronson Health Care Group, 917 F.2d 266 (6th Cir, 1990).



F. THE STATUTE OF LIMITATIONS UNDER EMTALA:

There is a two-year federal statute of limitations on EMTALA claims. However, an otherwise timely complaint may be amended to add an EMTALA cause of action even after the two-year deadline expired, providing that the amendment asserted no new facts and sets forth only the new legal theory. Accordingly, "the EMTALA claim clearly relates back to the original claim and is not [time-]barred." Cardenuto, 593 N.Y.S.2d at 447. Also see Caffaro v. Trayna, 35 N.Y.2d 245, 360 N.Y.S.2d 847, 319 N.E.2d 174; and CPLR 203(f).

In Cardenuto, the plaintiff was granted leave of Court to add an EMTALA claim after the two-year deadline had expired. The plaintiff's EMTALA claim asserted no new facts, but simply added a new legal theory (violation of the "Anti-Dumping Act") based on previously asserted facts. The defendants had knowledge of all of the relevant facts and could not successfully claim prejudice.





G. REQUESTS TO CHARGE, AND JURY INTERROGATORIES UNDER THE "ANTI-DUMPING" STATUTE:

New York's Pattern Jury Instructions do not contain a jury charge for violation of the Anti-Dumping Statute. The federal law was not in effect when the last P.J.I. was published, and it is unknown whether the authors of the next P.J.I. will want to tackle writing a jury charge under New York law which addresses the violations of this federal statute.

We therefore have proffered our own proposed EMTALA charge (7), which was accepted by the Court (8), as follows:



"Plaintiff claims that the defendant hospital unlawfully discharged [patient's name] without necessary treatment, on [date(s)] in violation of the Federal Emergency Medical Treatment and Active Labor Act. [42 U.S.C.A §1955(dd)]. The plaintiff's claims for malpractice are legally distinct and independent of her claims under this statute. You may (but are not required to) award the plaintiff damages if you find that the defendant violated the Federal Emergency Medical Treatment and Active Labor Act, whether or not you find that for the plaintiff on her claims for medical malpractice. The Jury Verdict Sheet which you will be given has separate sections for you to complete with respect to your findings on these claims. You do not have to find for the plaintiff on her claims of malpractice in order to find for the plaintiff on her claims under this statute, nor must you find for the plaintiff on her malpractice claims if you find for her on her claims under the Federal Emergency Medical Treatment and Active Labor Act. Each claim should be considered separately.



You must determine, by a fair preponderance of the credible evidence, whether the plaintiff had an "emergency medical condition", and whether any such condition which was "stabilized", when she was discharged from each Emergency Room visit. If you find that she had an "emergency medical condition" which was not "stabilized", you then must determine whether the plaintiff suffered "personal harm as a direct result" of being so discharged.



An "emergency medical condition" is defined as "a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in (A) placing the patient's health in serious jeopardy, (B) serious impairment of bodily functions, or (C) serious dysfunction of any bodily organ or part. [42 U.S.C. §1395dd[e][1]].



A patient is "stabilized" if "no material deterioration of the condition is likely, within reasonable medical probability, to result discharge of the individual from a facility."



If you find that the plaintiff had an "emergency medical condition" which was not "stabilized" when he/she was discharged from the Emergency Room, and that the plaintiff suffered "personal harm as a direct result" of being so discharged or transferred, then you may award the plaintiff up to $50,000.00 for each such discharge or transfer. Any such award is in addition to whatever damages may be awarded for medical malpractice.









CONCLUSION:

The "Anti-Dumping Act" adds a new weapon to the plaintiff's malpractice lawyer's arsenal. With the passage of time, more EMTALA actions will reach trial. The plaintiffs' malpractice bar is well advised to study the EMTALA cause of action and consider its application to pending and future emergency room cases.



Mark R. Bower, Esq.
Board-Certified in Medical Malpractice (A.B.P.L.A.)
Associate of the American College of Legal Medicine
The Law Offices of Mark R. Bower, P.C.
15 Maiden Lane, 16th fl.
New York, NY 10038
tel: (212) 240-0700

www.lawyers.com/Mark_Bower

1. 1 Masoner vs. Huntington Hospital, Supreme Court, Suffolk Co., Index # 4565/93, Lama, J. The Court's decision granted plaintiff's motion in limine, based on a separately-pleaded cause of action in our complaint.

2. 2 The defense took an appeal from the judgment, but settled the case while the appeal was pending. The issues never reached an appellate determination.

3. 3 At the clients' request, we cannot release the details of the case. Post-verdict motions are currently pending, and it is likely that the case will be appealed to the Second Department. One of the issues on appeal would be the right to a private recovery for "dumping" a patient.

4. 4 The statutory penalties are available only against hospitals, and not against the individual personnel who staff the Emergency Room.

5. 5 In an automobile accident case, where the plaintiff alleges that the defendant negligently failed to keep his car under control (ordinary negligence) and also alleges that the defendant was speeding or ran through a red light (statutory violations claims), that both negligence and statutory claims arose from the same set of facts doesn't prevent the plaintiff from recovering on either or both allegations.

6. 6 The Cardenuto Court, supra, concluded that:



"A realistic, reasonable reading of [the Anti-Dumping Act] leads inescapably to the conclusion that stabilization is required 'if the patient has an emergency medical condition' even if that condition is not diagnosed."



The Cardenuto Court held that EMTALA does not require the hospital to render a "correct" diagnosis, but does require an "appropriate" medical screening, and whether a particular screening was "appropriate" is a jury question which precludes summary judgment or dismissal.

Thus, the Court concluded that "Misdiagnosis should remain, as it was before EMTALA, a matter for state malpractice law", and that this interpretation of EMTALA would not transform the "garden variety of malpractice cases into per se causes of action.

7. 7 Note that this proposed charge was in a case where the fact that the patient was "transferred" (i.e. - discharged) from the Emergency Room was conceded. If this were not an uncontested fact, an additional paragraph describing the statutory "transfer" requirements would be added.

8. 8 In Masoner v. Huntington Hospital, Index #4565/93, Supreme Court, Suffolk Co., (J. Lama).