LEGAL SERVICES BULLETIN
Gwen Dayton, Vice President and General Counsel May 2001, Volume 1, No. 2
EMTALA: NEW LIABILITY

The United State Court of Appeals for the 9th Circuit recently issued an opinion that opens the door to expanded liability under the Emergency Medical Treatment and Active Labor Act (EMTALA). In Arrington v. Wong, 237 F.3d 1066 (9th Circuit 2001), the Court held that a hospital may not divert an ambulance that has contacted the hospital's emergency department en route to the hospital unless the hospital has declared that it is in diversionary status. The Court's ruling extends to non-hospital owned ambulances. A hospital that diverts an ambulance in violation of this requirement may be exposed to civil suit by a plaintiff who is harmed by the diversion.

Facts:

The plaintiff, Harold Arrington, experienced shortness of breath on his way to work and a co-worker called an ambulance. The ambulance began transporting Arrington to the nearest hospital, Queen's Medical Center. The ambulance was not owned by Queen's Medical Center or by any particular hospital. While on route to the hospital, the ambulance contacted Queen's Medical Center by radio and spoke to Dr. Wong, the physician on duty. Dr. Wong inquired about Arrington's doctor, after hearing that the patient was suffering from severe respiratory distress. The ambulance personnel responded that Arrington had been treated at Tripler Army Medical Center but that Queen's Medical Center was closer. Dr. Wong indicated that "it would be okay to go to Tripler." The ambulance personnel rerouted to Tripler in response to what they believed to be a physician order. The ambulance never entered onto Queen's Medical Center property. Arrington died shortly after arrival at Tripler. The Arrington family filed suit against Dr. Wong and Queen's Medical Center, as well as others, alleging that the defendants had violated EMTALA and that the violation had caused Arrington's death.

The Court's Analysis:

The Arrington case originally was dismissed by the United States District Court for the District of Hawaii because, for purposes of EMTALA, the plaintiff had not "come to" the Queen's Medical Center emergency department. EMTALA provides that a patient must "come to the hospital" before the hospital's obligations related to screening, stabilization and transfer are implicated. On appeal, the 9th Circuit focused its analysis on this central question; had Arrington "come to the hospital" when has was transported in a non-hospital owned ambulance and the ambulance contacted the hospital on route to the hospital?

The Court acknowledged that the meaning of "comes to" is not clear. Ultimately, the court relied on the EMTALA regulations themselves and concluded that once a patient boards any ambulance and the ambulance contacts the hospital en route, the hospital must see, examine and, if necessary, treat the patient unless the hospital has declared itself to be in diversionary status. (Note: even if the hospital is in diversionary status, if ambulance personnel ignore the divert instruction and arrive on hospital property, the hospital must provide emergency treatment to the patient.) To comply with EMTALA in turning away a patient in an ambulance en route to the hospital, the U.S. Court of Appeals ruled that Queen's Medical Center must have been in diversionary status, that is, declared itself to be without adequate staff or facilities to accept any additional emergency patients. Further, Dr. Wong must have known that the hospital was in diversionary status and based his divert instruction on that fact. The U.S. Court of Appeals reversed the decision of the district court and remanded the decision for further consideration.

Implications:

• Hospitals should review their emergency room policies to ensure they do not allow diversion of patients en route to the hospital without a clear statement of diversionary status and the diversionary status is compliant with all the requirements of local, state and federal laws. Diversion policies must ensure all emergency room medical staff is aware of the hospital's diversion status.
  
  
• Under Arrington, the fact that the hospital does not own the ambulance is not significant to the determination whether the patient has "come to the hospital."
  
  
• The Court opinion is at odds with the interpretation of the Department of Health and Human Services of "comes to the hospital." The department has taken the position that a patient en route to the hospital in an ambulance has not come to the hospital unless the ambulance is owned by the hospital. So, a hospital that violates the tenets of the Arrington decision may be subject to private civil suit but not HCFA enforcement action.
  
  
• The Arrington decision is a ruling of the 9th Circuit. Other jurisdictions have ruled differently on the issue of "comes to the hospital." The U.S. Supreme Court may accept review of this case to resolve the conflict.
  
  
• Oregon is governed by the 9th Circuit so our federal district courts may see themselves as bound by the Arrington decision to a greater degree than courts in other jurisdictions.

EMTALA REMINDER: Hospitals and physicians who violate the EMTALA requirements regarding on-call coverage face significant penalties, including civil fines of up to $50,000 per violation or exclusion from participation in federal programs. Hospitals must:

• Maintain a list of physicians, including specialists and sub-specialists, who are on call to evaluate and treat patients in the emergency department.
• Be responsible for ensuring that on-call physicians respond within a reasonable period of time.
• Have medical staff bylaws or policies and procedures that define the responsibility of on-call physicians to respond, examine, and treat patients with emergency medical conditions
• Have policies and procedures that are followed when a particular specialty is not available or on-call physicians cannot respond due to circumstances beyond their control.
• If the hospital transfers a patient to another facility because an on-call physician fails or refuses to appear, give the on-call physician's name and address to the receiving hospital.

Source: American College of Emergency Physicians, "On-Call Responsibilities for Hospitals and Physicians," www.acep.org.

HEALTH LAW BRIEFS

• Marijuana: The U.S. Supreme Court struck down the use of marijuana for medical purposes. In United States v. Oakland Cannabis Buyers' Coop., No 00-151 (U.S. May 14, 2001), the Court ruled that the federal Controlled Substances Act prohibition on manufacturing and distributing marijuana does not provide an exception for medical necessity. The Court found that the law provides an exception for government-approved research projects but no other exception was intended. It is unlikely the court ruling will directly affect Oregon's Medical Marijuana program. Actions permitted under Oregon's program will be illegal under federal law. Oregon Attorney General Hardy Myers issued a statement that "Oregonians engaged in the manufacture and distribution or who are in possession of medical marijuana may be subject to federal criminal prosecution, or federal injunction against a violation of the Controlled Substances Act, or both."
  
  
• HIV: The Oregon Health Division has delayed implementation of the HIV name-to-code reporting from July 1, 2001 until October 1, 2001. The delay will give the division an opportunity to further consider community concerns.
  
  
• JCAHO: the Joint Commission on Accreditation of Healthcare Organizations announced that July 1, 2002 is the new date on which accredited hospitals must begin collecting data on the first sets of the ORYX core performance measures. The July 1, 2002 date represents a six-month extension from the original target date. Between November, 2001 and July 2002, hospitals must formally select core measure sets based on the health care services that they provide.
  
  
• Nurse Anesthetists: The federal Department of Health and Human Services has again delayed the effective date of the nurse anesthetist supervision rule that would allow certified registered nurse anesthetists to administer anesthesia to patients without a physician's supervision. The effective date of the rule will be delayed until November 14 to give the department an opportunity to obtain comments on modifications to the rule, including whether a governor should be able to determine that CRNAs are able to administer anesthesia services in that state without physician supervision, and whether a study should be performed to assess the impact of different state CRNA practices.

Please feel free to contact Gwen Dayton, Vice President and General Counsel, gdayton@oahhs.org, with questions or suggestions for future Legal Services Bulletins.