Access to health care through the emergency room
Robert Painter's article, as published in January/February 2013 issue of The Houston Lawyer magazine
In the past, most people went to the emergency room only if there was a real medical emergency. In recent years, as access to health care has become increasingly challenging, more and more people have relied on emergency rooms for both emergency and non-emergency health care.
In the time period of 2000 through 2009, there was an increase of 28 million annual emergency room visits in the United States. (FN1) According to 2009 data for emergency room encounters, significant numbers were for patients who were uninsured or recipients of government health care benefits. (FN2)
The impact of the staggering increased demand on emergency rooms is significant. Crowded emergency rooms are causing patients to experience delays in receiving care, ambulances to divert patients to other hospitals, and an overall insufficient capacity to handle large numbers of patients from a public health crisis or catastrophic event. (FN3)
A Houston-based study found a strong correlation between primary care-related emergency room visits with the rate of poverty and the lack of health insurance, demonstrating another factor accounting for the increase in the overall demand for emergency room care. (FN4) More than 25 percent of all ambulatory (non-emergency) care visits by the uninsured are in emergency departments, compared to only seven percent for the privately insured and 17 percent for Medicaid enrollees. (FN5)
Regardless of insurance status, the shortage of primary care physicians and the inability to meet the demand for ambulatory care have caused some of the excess demand to shift to emergency rooms. (FN6) These are serious and challenging issues for society that have a tremendous impact on public health and finances. In addition to these considerations, though, the distinction between patient utilization of emergency rooms for primary care versus true emergency care has major implications in terms of access to care and the liability of health care providers.
The Emergency Medical Treatment and Active Labor Act
One of the first efforts by the U.S. government to address access to care focused on emergency medical care. In the 1980s, an estimated 250,000 patients were refused emergency medical care annually because they were uninsured and lacked the ability to pay. (FN7) The practice was dubbed “patient dumping.” (FN8)
The media regularly highlighted horror stories of patient dumping. Women in active labor were turned away from hospitals, losing their babies by the time they arrived at other facilities. Stab wound victims died while being transferred from private hospital emergency rooms to public hospitals.
When public sentiment shifted, Congress responded by passing the Emergency Medical Treatment and Active Labor Act (“EMTALA”), which President Ronald Reagan signed into law in 1986. (FN9) EMTALA applies to any hospital that receives Medicare funds and has an emergency department. (FN10) When a person presents to an emergency room and there is a request for care, the hospital must conduct an appropriate medical screening, within the facility’s capabilities, to determine whether an emergency medical condition exists.
Although the EMTALA statute does not define what an “appropriate medical screening” must include, it does require that it must be similar to one that would be provided to any other person, regardless of insurance status or ability to pay. (FN11) The obvious public policy behind the law is to require hospitals to provide at least limited treatment to people who present to a hospital emergency room in active labor or with emergency medical conditions, regardless of their ability to pay.
The purpose of the appropriate medical screening is to determine whether the patient has an emergency medical condition. The law defines an “emergency medical condition” as one with “acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in: (1) placing the health of the patient (or unborn child) in serious jeopardy, (2) serious impairment to bodily functions, or (3) serious dysfunction of any bodily organ or part.
When a pregnant woman presents with contractions, it is an “emergency medical condition” if there is not enough time to make a safe transfer to another hospital before delivery, and such a transfer would pose a threat to the health or safety of the woman or unborn child. (FN12)
If the emergency physician becomes actually aware of an emergency medical condition, then it triggers a duty under EMTALA to provide treatment to stabilize the patient. (FN13) This provision has been interpreted to be a subjective standard of actual awareness. (FN14) Thus, the mere presence of an emergency medical condition is insufficient to support a claim under EMTALA, unless the actual physician awareness requirement is also met. (FN15)
Even after the duty to stabilize a patient is triggered by actual awareness of the emergency medical condition, EMTALA does not require the health care providers to cure the patient, but instead only to stabilize the patient’s condition. (FN16) Under EMTALA, “stabilize” means “to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility, or with respect to a woman in active labor to deliver (including the placenta).” (FN17)
Once the patient’s emergency medical condition is stabilized, the patient may be discharged or transferred to another facility. In addition, the hospital may discharge the patient before he or she has been stabilized, if: (1) the patient requests the transfer, (2) a physician certifies in writing and believes that the benefits of transfer outweighs the risk, or (3) when a physician is not physically present in the emergency room, a qualified medical person certifies in writing and believes that the benefits of transfer outweighs the risk after consulting with a physician. (FN18)
The law contains serious enforcement provisions to incentivize Medicare-receiving hospitals to comply with EMTALA’s provisions. First, both hospitals and physicians who sign a certification under the EMTALA statute can be assessed civil penalties of $50,000 per violation. (FN19) This means that hospitals and health care providers must pay careful attention to the statutory requirements for stabilization. Second, there is also a private cause of action against hospitals for EMTALA violations. (FN20) A patient lawsuit under EMTALA is different from a medical malpractice claim (although sometimes they are pursued concurrently) in that an alleged EMTALA violation focuses on the “patient dumping” aspect of the facts.
In summary, EMTALA has done a great deal to prevent patient dumping when bona fide emergency medical conditions are present. In general, if a hospital accepts Medicare, a person who has no insurance or ability to pay has certain rights, including delivery of a baby if the mother is in active labor, or treatment to stabilize an emergency medical condition.
EMTALA is believed to have contributed to the increase in demand for emergency medical care, but does not address the broader issue of access to care for the uninsured, or underinsured, for primary care and non-emergency health care.
Texas Law’s Approach to Emergency Medicine
Providing health care to the uninsured continues to be a challenging topic of debate in Texas. According to 2009-2010 data, there are nearly 4.9 million uninsured people in Texas, which amounts to one-third of the population. (FN21) Moreover, Texas ranks first of all U.S. states in the percentage of citizens lacking medical insurance. (FN22)
The noninsurance crisis has impacted emergency rooms all over Texas, and the financial impact is significant. The Texas Medical Association estimates that Texas hospitals spent around $208 million treating uninsured trauma patients in 2003. (FN23)
The Texas legislature responded to the strains on the emergency medicine system by passing tort reform protections. The 2003 Texas tort reform legislation enacted a significant new protection for providers of “bona fide emergency care services.”
The most dramatic change ushered in by the statute was the abrogation of the general negligence standard in favor of a lower standard of care for “bona fide emergency care services”: the standard of willful and wanton negligence. (FN24) The willful and wanton negligence standard applies in hospital emergency rooms, hospital obstetrical units or in surgical suites immediately following evaluation in an emergency room. (FN25) The effect of the statute is to create a lower standard of care for the provision of emergency medical care. (FN26)
While the term “willful and wanton negligence” has been considered inherently contradictory, “it is obvious the legislature meant to exclude outrageous acts rising to the level of conscious indifference.” (FN27) The First Court of Appeals has interpreted willful and wanton negligence to be equivalent to gross negligence, writing that it means an “entire want of care which would raise the belief that the act or omission complained of was the result of conscious indifference to the right or welfare of the person or persons to be affected by it.” (FN28)
It is important to note, however, that the willful and wanton negligence standard does not apply across the board in emergency room care. The distinction rests on the statutory definition of “bona fide emergency care services,” which seems to have been inspired by the language found in EMTALA.
Texas law defines “bona fide emergency care services” as those “provided after the sudden onset of a medical or traumatic condition 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 placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ.” (FN29)
To sum up the effect of EMTALA and Texas law, if a person with an emergency medical condition presents to a Texas hospital emergency room (and the hospital accepts Medicare), the hospital must provide treatment to stabilize the emergency medical condition, but is not obligated to cure it. Any health care liability claim arising from the provision of that care would be subject to the standard of willful and wanton negligence, rather than the usual general negligence standard.
This article was originally published in The Houston Lawyer, Vol. 50, No. 4 (January/February 2013).
(1) As access to health care has become increasingly challenging, more and more people are relying on emergency rooms for emergency and non-emergency health care. In 2009, there were over 136 million visits to emergency rooms in the United States. That amounts to an increase of 28 million annual visits since 2000. See National Hospital Ambulatory Medical Care Survey: 2009 Emergency Department Summary Tables, Centers for Disease Control and Prevention (2012), http://www.cdc.gov/nchs/data/ahcd/nhamcs_emergency/2009_ed_web_tables.pdf; Centers for Disease Control and Prevention, Advance Data from Vital and Health Statistics, No. 326 (April 22, 2001), available at http://www.cdc.gov/nchs/data/ad/ad326.pdf.
(2) Out of 136.1 million patient encounters, 21.1 million patients had no insurance, 39.9 million were covered by Medicaid or the Children’s Health Insurance Program and 23.1 million were covered by Medicare. See Centers for Disease Control and Prevention, Advance Data from Vital and Health Statistics, No. 326 (April 22, 2001), Table 6, available at http://www.cdc.gov/nchs/data/ad/ad326.pdf.
(3) U.S. General Accounting Office, Hospital Emergency Departments Crowded Conditions Vary Among Hospitals and Communities, GAO-03-460 (2003), available at http://www.gao.gov/new.items/d03460.pdf.
(4) Begley CE, Vojvodic RW, Seo M, Burau K, Emergency Room Use and Access to Primary Care: Evidence from Houston, Texas, 17 J. Health Care Poor Underserved 610 (2006), abstract available at http://www.ncbi.nlm.nih.gov/pubmed/16960325.
(5) Peter Cunningham, Nonurgent Use of Hospital Emergency Departments, Statement Before the U.S. Senate Health, Education, Labor and Pensions Committee, Subcommittee on Primary Health and Aging, May 11, 2011, available at http://hschange.org/CONTENT/1204/1204.pdf.
(6) Peter Cunningham and Jessica May, Insured Americans Drive Surge in Emergency Department Visits, Issue Brief No. 70, Center for Studying Health System Change, Washington, DC (October 2003), available at http://www.hschange.com/CONTENT/613/.
(7) Andrew J. McClurg, Your Money or Your Life: Interpreting the Federal Act Against Patient Dumping, 24 Wake Forest L. Rev., 173, 173-237 (1989), citing Ansell & Schiff, Patient Dumping: Status, Implications, and Policy Recommendations, 257 J.A.M.A. 1500 (1987).
(8) Andrew J. McClurg, Your Money or Your Life: Interpreting the Federal Act Against Patient Dumping, 24 Wake Forest L. Rev., 173, 173-237 (1989).
(9) 42 U.S.C. § 1395dd. The Act is also known as COBRA and the Patient Anti-Dumping Law.
(10) 42 U.S.C. § 1395dd(a); Rios v. Baptist Mem’l Hosp. Sys., 935 S.W.2d 799 (Tex. App.—San Antonio 1996, writ denied).
(11) C.M. v. Tomball Reg’l Hosp., 961 S.W.2d 236, 241 (Tex. App.—Houston [1st Dist.] 1997, no writ).
(12) 42 U.S.C. § 1395dd(e).
(13) 42 U.S.C. § 1395dd(e).
(14) Camp v. Harris Methodist Fort Worth Hosp., 983 S.W.2d 876, 880 (Tex. App.—Fort Worth 1998, no pet.); Cleland v. Bronson Health Care Group, 917 F.2d 266, 269 (6th Cir. 1990).
(15) Camp, 983 S.W.2d 880.
(17) 42 U.S.C. § 1395dd(e)(3)(A).
(18) 42 U.S.C. § 1395dd(c).
(19) 42 U.S.C. § 1395dd(d)(1).
(20) 42 U.S.C. § 1395dd(d)(2).
(21) The Uninsured in Texas, Texas Medical Association, available at http://www.texmed.org/Uninsured_in_Texas/
(22) See id.
(23) See id.
(24) Tex. Civ. Prac. & Rem. Code § 74.153 (Vernon 2005).
(25) Tex. Civ. Prac. & Rem. Code § 74.153 (Vernon 2005).
(26) Jackson v. Axelrad, 221 S.W.3d 650, 655 (Tex. 2007); Hernandez v. Lukefahr, 879 S.W.2d 137, 141 (Tex. App.—Houston [14th Dist.] 1994, no writ).
(27) Hernandez, 879 S.W.2d at 141.
(28) Little v. Needham, 236 S.W.3d 328, 334 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
(29) Tex. Civ. Prac. & Rem. Code § 74.153(a)(7) (Vernon 2005).
Robert Painter is an attorney and member of Painter Law Firm PLLC.
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