Julie awoke in the middle of the night to the sound of her toddler’s cry. Libby’s forehead was hot. When Julie took her temperature, the thermometer read 104 degrees. Julie immediately headed for the emergency room of the nearest hospital. The emergency room nurse told Julie that the hospital was too busy with other patients and told her to go to another hospital about fifteen minutes away. Julie drove to the other hospital. The doctor there administered a shot of acetaminophen, which soon brought the fever down. Libby was diagnosed with a viral infection from which she recovered in a few days. Julie’s insurance company refused to cover Libby’s trip to the emergency room because Julie did not call for prior approval before going to the hospital. Julie is still recovering from the bill.
Ever read your entire health insurance policy? Did you understand it? Reading an insurance policy can be tedious and confusing. The terms are unfamiliar, and the language seems to be a riddle meant to baffle you. Some health plans do not even give their policyholders the whole policy. Instead they provide you with a shorter outline of your coverage. One man who received such an outline noted that he was covered for “emergency transportation.” Later on the man needed to be airlifted to a hospital. The health plan denied coverage, claiming that it only covered ambulances. When the man took the health plan to court, he was able to get the bill for the helicopter covered by the health plan.
When the language in the policy is clear, it will almost always be enforced as it is written, even though doing so may be to your disadvantage. When there are terms such as “emergency transportation,” which can be interpreted in several ways, courts will define the terms to protect the reasonable expectations of the insured—you.
Emergencies cannot really be managed. By their very nature, emergencies are unexpected, unforeseen, and often frightening—the very qualities that make them difficult to manage.
Originally, however, HMOs did try to manage them, sometimes with disastrous results. When HMOs first became prevalent, many of them limited the use of emergency rooms and services. Patients were required to call the HMO to ask permission to go to the emergency room. Patients would describe their symptoms to HMO personnel who would then approve or deny permission to seek emergency care. Unbeknownst to patients, they were not always speaking with a doctor. Sometimes the decisions were made by customer service representatives with no medical training.
If the patient was denied permission and sought emergency care anyway, the HMO refused to cover the bill. Even if the HMO approved the emergency visit, it would sometimes reverse its decision upon receiving the bill if HMO personnel decided it wasn’t an emergency after all. One patient received approval to seek emergency care for severe abdominal pain. He was admitted to the hospital and died within a few hours. His HMO refused to pay the bill, arguing it had not been an emergency.
HMOs argue that instances like these are rare, that most people under managed care give it high marks, and that the procedures that sometimes limit medical care are necessary to contain costs.
However, on the emergency room issue, as more and more horror stories came to the attention of the press and the public, legislators began taking a closer look at how HMOs were operating. Some HMOs required the approval of a doctor to visit the emergency room but did not staff their phone lines outside of normal business hours. Other patients waited hours to receive a call from an HMO doctor, only to be turned down. Still other patients were told by HMO personnel that they were not to call 911 because their problems were not serious enough to warrant ambulances. Some of those patients died before they were able to see their primary physicians.
Public outcry led to state senators and representatives taking on the HMOs, although the outcome varied from state to state. Most states no longer allow HMOs to require that you get preapproval to seek emergency care. Other states require that HMOs offer a telephone number that is staffed twenty-four hours a day, seven days a week, and that a doctor must get back to the patient within a specified period of time, such as thirty minutes.
As patients become frustrated with restrictions on their health care, states are responding by limiting the power of the HMOs to deny coverage. The trend is to require HMOs to provide more coverage, not less. If a patient gets preapproval to go to the emergency room, the HMO cannot later deny coverage for that claim.
At one time it was not uncommon for hospitals to “dump” patients that were uninsured, poor, or otherwise considered undesirable. These patients were either turned away or transferred to other hospitals. The result was that patients did not receive immediate treatment. At its worst, it meant the patient died because of the delay.
To deal with this problem, Congress enacted an “antidumping” law. The Emergency Medical Treatment and Active Labor Act (EMTALA) requires hospitals to
Health care facilities are required to file a report if they suspect that another health care facility is violating EMTALA. If a facility is found to violate EMTALA, that facility could be fined or could even lose its participation in the Medicare and Medicaid programs. In addition, hospitals’ own policies may limit dumping. Many not-for-profit hospitals are required to provide some level of charity care beyond EMTALA.
In some instances, though, an unstable patient will need to be transferred. To do this, the doctor must certify that the benefits to the patient of the treatment at the next hospital outweigh the risks of the transfer.
Courts around the country are struggling with this very issue. One court called the term appropriate a “weasel” word used by Congress when trying to reach a compromise. Unfortunately, there is no clear standard in the law as to what constitutes an “appropriate” medical examination. In general, the hospital must give you a medical screening within the hospital’s capabilities, although this standard has yet to be tested in most courts.
Usually the court will look at whether you received treatment that was somehow different from treatment received by other patients. For example, you walk into an emergency room with abdominal pains and no health insurance. After waiting four hours to see a doctor, you’re given a five-minute examination, told it’s probably the flu, and sent home.
To prove that you were not given an appropriate medical examination, you would have to show that other patients with abdominal pain—and health insurance—were given a more thorough examination. You do not have to prove that you were treated differently because of your race, sex, political beliefs, religion, or some other improper motive. It doesn’t matter why the examination was inappropriate. It only matters that it was not appropriate.
WHY PATIENTS LOSE EMTALA CASES
Hospitals win most cases brought under EMTALA. Usually the patient loses because he or she is unable to provide enough evidence that the medical examination given was not appropriate. In other cases the patients lost because they could not prove they ever actually went to the emergency room or because the transfer was proper, although the paperwork regarding the transfer was filled out incorrectly.
An emergency medical condition means the symptoms are so severe that any delay in medical treatment could reasonably be expected to seriously harm you. In the case of a pregnant woman, it also means any serious harm that could come to the unborn child. In fact, any woman in labor is considered to have an emergency medical condition.
A patient is stabilized when it is unlikely that his or her condition will significantly worsen during, or because of, the transfer. Under the EMTALA, a pregnant woman is not considered “stabilized” until she delivers the baby.
TALKING TO A LAWYER
Labor and Delivery
Q. When I went to the hospital with labor pains, I was seen by an RN who talked to my doctor on the telephone and then sent me home because I was in “false” labor. Is this an appropriate medical evaluation?
A. Generally no. You should not be sent home for false labor unless you are seen by a doctor and the doctor certifies that it is indeed false labor.
Answer by Cindy J. Moy, attorney and author, Golden Valley, Minnesota
It is quite possible for the hospital to provide an appropriate medical examination and not find an emergency medical condition. It is also quite possible that you are stable and, against all medical odds, you suddenly get worse. In that case, the hospital might unwittingly transfer or discharge an unstable patient. The court will take into account the medical judgment of the doctor who treated the patient.
There are times when transferring a patient is simply the best possible course of treatment. In one case a new mother collapsed in the emergency room of a children’s hospital where her newborn was being treated. The pediatric staff got the woman onto a bed and started an IV. The woman’s life was in no immediate danger, so the doctors, all pediatricians, had the woman taken by ambulance to a hospital a block away where she could be seen by doctors who regularly treat adults. The woman agreed to the transfer. She received emergency care and was brought back to the children’s hospital to be with her child after doctors determined she was well enough to do so.
TALKING TO A LAWYER
Ongoing Treatment under the EMTALA
Q. When my mother was brought to the ER because of respiratory distress, the doctors managed to get her stabilized. Does the EMTALA require that the hospital provide ongoing treatment to the patient after the patient is stabilized?
A. The EMTALA requires that the hospital provide treatment to stabilize patients, but it does not require the hospital to provide treatment after stabilization. The EMTALA is a limited “antidumping” law. It is not a malpractice law.
Answer by Cindy J. Moy, attorney and author, Golden Valley, Minnesota
The hospital may transfer the patient if:
When a patient is transferred, the method of transportation must be sufficiently equipped to get the patient to the next hospital. In one case a woman with high blood pressure was in labor when the hospital transferred her to a hospital three hours away. In the woman’s condition, it was possible that a cesarean section would have needed to be performed during the transport. The ambulance had neither the equipment nor the staff to perform such an operation. A court found that the transportation was not adequate.
When the hospital transfers the patient:
A transfer to another hospital does not need to be done in an ambulance. The patient’s own car may be adequate, depending on the patient’s condition. One court found it acceptable when a young man had to be taken by his own car to a hospital two hours away, even though his pain medication wore off and he needed to keep his arm elevated.
As the patient, you may choose to:
The EMTALA applies only to hospitals that have emergency rooms and that receive federal Medicare funds. This does not mean that you, as a patient, need to be on Medicare. It means that the hospital participates in the Medicare program. Nearly every hospital in the country with an emergency room participates in the Medicare program, which ensures that most patients will receive the care needed. Hospitals that do not participate in Medicare are not subject to the EMTALA but may be subject to state laws.
A CATCH-22
Hospitals are only liable under the EMTALA if the patient actually comes into the emergency room, though there is some leeway on this factor that is discussed later in this chapter. In one case an injured boy in Louisiana was brought to a small hospital that was unable to properly treat him. The doctor called another hospital to arrange for a transfer. The second hospital refused to take the boy after learning he was uninsured. The boy’s parents sued the second hospital under the EMTALA and lost because the court determined that the boy had never “come” to the emergency room at the second hospital.
In 1998, a group of teenage boys tried to bring one of their friends, who had been shot, to an emergency room in Chicago. The wounded boy went into shock half a block from the emergency room. His friends ran to the emergency room and asked for help. The staff called 911 but refused to leave the emergency room, in accordance with hospital policy. The hospital staff was severely criticized in the community and the media. The hospital administrators explained that the policy was in place to protect the staff from violent situations on the street and because the staff needed to take care of the people who were already in the emergency room waiting for treatment.
The Health Care Financing Administration (HCFA) fined the hospital $40,000, claiming the hospital violated the EMTALA. It also told the hospital that it had to either change its policy or the HCFA would take away the hospital’s Medicare program. The hospital changed its policy, even though there is no state or federal law that requires the hospital to give emergency care to people that are not on hospital grounds.
The HCFA does not have the authority to make laws, but it does have the authority to decide who gets Medicare funding. Medicare programs make up millions of dollars of a hospital’s budget and no hospital would realistically be able to stand up to the HCFA and refuse to change its policy. Thus, the HCFA’s decision to force the hospital to change its policy affects the treatment you may receive in an emergency room.
Though the new policy was popular, it may well have unforeseen harmful consequences. In making health care policy, even good intentions can have bad results. For instance, the emergency room staff must now leave the hospital to assist people within the immediate vicinity of the hospital. Right now there is no way for the hospital to know when staff will be required to leave the hospital. That means the patients within the emergency room may have to wait longer or will not receive the treatment they need. There is also the question of what qualifies as the “immediate vicinity”? Half a block? One block? Two blocks? Is that measured from the emergency room or from the property line of the hospital as a whole?
Another problem is deciding how the emergency room staff is supposed to take care of the person outside. Does the staff have to carry oxygen tanks or other medical equipment when they leave the hospital? Are the emergency room nurses required to pick up the patient and carry the person into the emergency room? Many states require that nurses be specially trained and certified before they can transport patients. Will this put nurses in jeopardy of losing their licenses?
What about the safety of the emergency room staff? The incident that began this debate involved gunfire from a gang. How will inner-city hospitals recruit qualified employees if emergency doctors and nurses know that they could be forced to put themselves at risk on the streets? Is the hospital required to hire security to escort emergency personnel when they leave the hospital to help someone on the street? What does the staff do if, when they are helping a person on the street, violence erupts?
These are questions that are currently unanswered. Hospitals will be trying to deal with the policy implications of HCFA’s actions for the next several years.
Taking on an HMO for malpractice used to be a daunting task. It’s a bit easier now because more and more states are allowing lawsuits against HMOs, particularly in light of the U.S. Supreme Court ruling in June 2000 that patients cannot sue an HMO under federal law when doctors ration medical care in order to receive cash bonuses. However, in many states the basic rule remains that you can sue a hospital or a doctor for malpractice, but not an HMO.
This puts the doctor between a rock and a hard place. The HMO can tell the doctor that you are to be transferred to another hospital. Under the EMTALA, however, the doctor may not be able to authorize a transfer. In such a case, the doctor has to choose between getting paid and transferring an unstable patient. Lately, state legislators have gotten wind of this dilemma. Some states now require HMOs to cover the medical bills at the hospital where the patient seeks emergency care, leaving the issue of whether the patient should be transferred up to the doctor and the patient.
Although the EMTALA claims are different from medical malpractice claims, most lawsuits contain claims on both these legal issues. A medical malpractice claim is one in which the doctor who treated you acted negligently or recklessly and you were injured as a result. In an EMTALA claim, you must prove that the hospital is required to comply with the EMTALA, that you went to the hospital seeking treatment, and that the hospital either did not properly screen you or that the hospital sent you away before stabilizing your condition. You can recover the same personal injury damages under the EMTALA as you would under the medical malpractice laws of your state. (Medical malpractice is discussed further in Chapter 24.) However, unlike other medical malpractice claims, the majority of courts hold that the EMTALA creates a private right of action against the hospital only. Therefore money damages are usually not obtainable from the doctors.
AVOIDING THE DAMAGES CAP
In recent years, a number of states have passed laws limiting how much plaintiffs can be awarded in medical malpractice damages. The jurisdictions disagree on whether these damages caps in malpractice laws apply to EMTALA damages. One court held that malpractice damage caps do apply to EMTALA claims, whereas a California court came to the opposite conclusion. There, the damages cap was held to not apply in a lawsuit under the EMTALA and the plaintiffs could recover more than the $250,000 allowed under the cap. This makes an EMTALA claim more lucrative to the plaintiff than traditional malpractice claims.
In addition to money payable to you, the hospital may also be fined as much as $50,000, payable to the government.
Few malpractice cases manage to be brought against health plans because most are preempted under a federal law called the Employee Retirement Income Security Act (ERISA). (See Chapter 4 for more discussion on ERISA.) This law bars you from bringing a claim against your employer’s health plan because it denied you benefits. One family, though, managed to take on their health plan and win. A mother in Georgia called her health provider to get approval to take her six-month-old son to the emergency room. She was told to take her son to a hospital forty-two miles away from her home. The plan received a 15 percent discount for patients treated at this hospital.
On the way to the hospital, the baby’s heart stopped. He was revived at another hospital but developed gangrene. Both of the baby’s hands and legs had to be amputated. The boy’s parents sued their health plan and won a $45 million judgment. The family later settled for an undisclosed amount when the health plan appealed. The family was able to sue the health plan because they were not insured through their employers. Because they were not insured through their employers, their claim was not preempted by ERISA.
The public is growing increasingly upset at what they see as abuses by HMOs, and lawmakers are beginning to take notice. Whether or not the ERISA block should be removed and people should be allowed to sue HMOs is now at the forefront of the political arena. So far legislation that would remove ERISA protection has passed only in Texas, but the gap is narrowing and the public outcry is getting louder. Look for more states to make the change and for more people to take on their HMOs in court and win. For more information on this topic, see Chapter 4, Insurance and Managed Care.
ERISA does not bar claims for economic loss based on the denial of benefits. In other words, you can sue your health plan to try to get them to cover your medical bills. Any amount you are awarded is limited to the amount of the medical services that are disputed. If you have a bill for $2,900, that is all you are allowed to recover from your health plan. To win coverage for medical bills, you will have to show that you complied with your health plan contract. If you go to the emergency room for a migraine at a time when your doctor is holding office hours, even though this is clearly not allowed under your policy, you may not be able to get coverage for those medical bills.
