Hospital/Physician

Civil Liability under

EMTALA

Stephen A. Frew JD

www.medlaw.com

Disclaimer

This program deals with legal topics from a risk

management and compliance perspective. It is

educational and is NOT LEGAL ADVICE.

Although the speaker is an Illinois licensed

attorney, he is not YOUR attorney. He is not

available for legal services. If you have need for

legal advice contact your hospital legal counsel

or your personal attorney. Specific insurance

questions should be directed to your insurance

carrier or agent.

Continuing Education Disclosure

The speaker is employed and engaged in the

business of risk management consulting on issues

related to the topic being discussed. No commercial

promotions are included in this presentation, and no

off-label use of any medication or product is

included in this presentation.

Three EMTALA’s

COURTS

OIG

CMS

EMTALA Exposures…

Civil litigation by individuals

Civil Monetary Penalties

Termination from Medicare

Hospital v Hospital litigation

State licensure actions

Who can sue…and for what…

Any individual who suffers personal harm as a

direct result of a participating hospital’s

violation of a requirement of this section

Not just indigent

Not based on Negligence

Who can be sued…

Direct action against hospital

Hospital is DIRECTLY liable

for actions of physician

But can the doctor be sued?

NOT for EMTALA

May be included in

malpractice counts

Hospital may cross-

claim for indemnity

or breach of contract

Jurisdiction

Concurrent Jurisdiction

In federal court…

Strict Liability

No peer review privilege

Risk of no medmal caps or procedure

Very strict discovery and deadlines

Citation > Litigation

CMS has access to everything

You don’t have the right to

remain silent

Their citation and your POC are

public and can be used in Court

Once the citation is in evidence, the

odds favor Plaintiff

Definitions are the key…

vs

Theories of EMTALA liability

Failure to provide MSE –

adequate vs standard

Qualified

Medical

Personnel

(QMP)

Delay in care?

Improper transfer?

Failure to stabilize?

Discharge

Transfer

Delay in Care

On-call Failure

Diversion

The big legal question…

Does EMTALA apply to inpatients?

CMS says “No” with limitations

Two federal circuits say “No”

Three federal circuits say “Yes”

And the only Supreme Court decision upheld a

claim for discharging an unstable patient after 30

days of inpatient care.

Questions and Answers…

For More Information

• Visit www.medlaw.com

• Email: sfrew@medlaw.com

• Connect on: LinkedIn

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