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Roberts v. Galen of Virginia -
The Supreme Court misses the boat on EMTALA

On January 21, 1999, the United States Supreme Court issued its decision in the case of Roberts v Galen of Virginia, Inc., a case which had been granted certiorari from a decision by the United States Circuit Court for the Sixth Circuit in April 1997.  This decision was issued on a per curiam basis, without written opinions from any justice.  The decision was issued very quickly, within two months of the date that oral arguments had been presented to the court.   

This is the first case which has been issued by the United States Supreme Court dealing with legal issues arising from the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 USC §1395dd.  In view of the significance of the legal issues presented, it is unfortunate that the Supreme Court was not willing to give this case its full attention and consideration.  

The plaintiff was Jane Roberts, serving as guardian for Wanda Y. Johnson, a protected person, following an accident in which Ms. Johnson had sustained severe injuries after a collision with a truck.  Ms. Johnson was treated at Humana Hospital University of Louisville from May 19 to July 24, 1992, at which time she was transferred to an extended care facility in the state of Indiana.   

The factual development as described by the Sixth Circuit indicates that there were some Humana personnel who were aware that Ms. Johnson did not have insurance, and who were apparently pushing for transfer, but her treating physicians both claimed that they were completely unaware of her insurance status and were not motivated in any way by financial considerations in making their recommendations.  

The Roberts case thus was not a typical EMTALA case from the outset.  Most of the cases which have been decided under EMTALA have involved claims of an inappropriate or insufficient medical evaluation (a "medical screening examination" under the statute) and/or a decision to send the patient home or transfer him to another facility before the patient has become stabilized.  Very few EMTALA cases have been decided in which the patient has been an inpatient for a long period of time and then is transferred to another facility.  

From a general perspective, it is appropriate and reasonable that an acute care hospital make arrangements to transfer a patient who needs long term care to an extended care facility, where that care may be provided in a more appropriate fashion at a lower cost.  The limitation placed by EMTALA is that the patient must be stabilized before any such transfer may take place.  The primary legal issue with which the Roberts court was concerned, at the Sixth Circuit level and at the Supreme Court level, was whether the plaintiff must establish that the hospital, in effectuating the transfer, was motivated by financial considerations, or whether liability under EMTALA may be predicated upon simply upon the transfer of a patient who is not stable, regardless of the motive behind the transfer.  

The issue was first developed in a line of cases which is exemplified by a case previously decided by the Sixth Circuit itself, Cleland v Bronson Health Care Group, Inc., 917 F.2d 266 (6th Cir. 1990).  The Cleland case is one of the best known examples of the line of cases which have held that it is insufficient to simply allege that an inadequate or improper medical screening examination took place.  These cases have added the requirement that the plaintiff establish that he was treated differently from other patients similarly situated, and for whom insurance coverage is available.  Otherwise stated, the line of cases exemplified by Cleland provide that the plaintiff must show that there was an "improper motive" underlying the examination given to the plaintiff and, by extension, the decision to transfer him to another facility.   

The reason for this limitation is that the Federal courts have tried to be careful to ensure that EMTALA does not attempt to occupy the same ground as state-created malpractice law, and that it be shown to have a different intent and effect.  Many of the courts have held that EMTALA is not intended to provide federal enforcement to state malpractice claims, and that something more than simply acts of professional negligence in failing to make a proper diagnosis or to provide appropriate treatment must be shown in order for liability under EMTALA to attach.  

Unfortunately, the Roberts case is quite muddled from a factual and medical perspective.  There is no doubt that the patient had been treated for over two months and that the hospital had provided as much care and improvement as an acute care facility was going to be able to provide, and that this was a patient who was best treated in a nursing home environment rather than in an acute care hospital.  The problem arose when it was found that the patient had a suspected urinary tract infection, evidenced by an elevated white blood count, at the time of her transfer.  

Amazingly, all of the courts seem to have simply assumed that this represented an "instability" as that term is used under EMTALA, and that this infection made her an inappropriate candidate for transfer at least before a culture of the urinary tract had been done and reported in order to allow the physicians a chance to determine which antibiotics would be best used to fight it.  The Supreme Court seemed to rely almost entirely on the fact that one of the three treating physicians who testified expressed an opinion that the patient should have remained in the hospital until the culture report had been received.  The Court was also influenced by testimony suggesting that the nursing staff at the nursing home had provided insufficient treatment to the patient, failing to suction her lungs as frequently as had been recommended by her physician.  What the Court apparently lost sight of was the fact that the quality of care at the recipient facility cannot be used to determine the issue of whether the patient was an appropriate candidate for transfer. 

From a medical perspective, the patient's urinary tract infection by no means represented an instability as that term is used under EMTALA.  

The statute defines the relevant terms thus: 
The term ''stabilized'' means, with respect to an emergency medical condition described in paragraph (1)(A), that no material deterioration of the condition is likely, within reasonable medical probability, to result from or occur during the transfer of the individual from a facility. . .

*  *  *

The term ''emergency medical condition'' means -  (A) 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 -   

(i) placing the health of the individual [ ] in serious jeopardy,   
(ii) serious impairment to bodily functions, or   
(iii) serious dysfunction of any bodily organ or part. . . 
(We have omitted the special definitions related to pregnancy from both definitions.)  

In truth, the urinary tract infection was not in any way an "emergency medical condition" as defined under the statute.  Nursing home patients experience UTIs very frequently, and these are simply treated by physicians within the nursing home environment without the need to resort to admission to a hospital.  (Indeed, they are not treated at all unless they are symptomatic.) There is nothing about a UTI which requires inpatient hospital treatment or which would disqualify a patient from admission to a nursing home.  The UTI therefore did not meet the statutory definition of instability. Unfortunately, the courts did not even consider this factor in their decisions.  It is possible that it was not even raised for argument by the parties. 

The Sixth Circuit affirmed the decision of the District Court granting summary disposition in favor of the defendant, on the basis that the plaintiff had failed to show an improper motive on the part of an identified hospital employee related to the discharge of the patient.  Without proof of an improper motive, stated the court, there can be no liability under EMTALA.  The Court placed great reliance on the authority of Cleland: 
"The dispute in this case arises out of the District Court's conclusion that our Court's decision in Cleland requires that plaintiff prove the hospital acted with an improper motive in order to recover under the EMTALA. Specifically, the District Court concluded and the defendant contends that merely transferring a patient before the patient is sufficiently stabilized does not constitute a violation of EMTALA; rather, plaintiff must prove that the hospital acted with an improper motive when it failed to stabilize the patient before transfer."

After some consideration of the policy reasons behind EMTALA, the Sixth Circuit held, 
"The District Court in the instant case properly interpreted the Cleland holding as requiring that a plaintiff prove a hospital acted with an improper motive in order to recover under the EMTALA. . . Cleland requires proof of the existence of any improper motivation such as those listed above to make out a case of inappropriate screening or improper discharge. To interpret Cleland in any other manner would effectively reduce the EMTALA to nothing more than a federal remedy for medical malpractice." [footnotes omitted]

In its brief per curiam decision, the Supreme Court reversed the decision of the Sixth Circuit.  The Court sought to distinguish the claims made in the Roberts case noting that the the Cleland decision had been concerned with the adequacy of a medical screening evaluation under §1395dd(a), while the issue involved in the Roberts case was one of transfer of the patient, which is governed under §1395dd(b).  The Court noted that the Cleland court had been concerned that the use of the term "appropriate" in defining the medical screening examination under §1395dd(a) might lead courts to define the scope of EMTALA by reference to the standard of care, the standard for liability under common-law malpractice claims.  The Court took the position that such a concern is not involved under §1395dd(b) because there is no use of the term "appropriate" in that section's prohibition of a premature transfer of a patient to another medical facility.  

Since there was no use of the limiting term, the court seemed to adopt a plain language approach and held that any transfer of a patient who is found to be unstable must, by definition, be considered to be a violation of EMTALA, and that no proof of an improper motive or disparate treatment is needed.  

The court's decision, while attempting to distinguish the Cleland line of cases, will very likely cause the courts of this country to take a skeptical view of the "improper motive" standard in all cases in the future.  This likelihood is evidenced by some of the "rumblings" in the Roberts decision itself.  The Court noted that the hospital had conceded that there is no support in the language of EMTALA or in the legislative history for the "improper motive" test used by the Sixth Circuit in both the Cleland and Roberts cases.  Further, the Court expressly declined to provide an opinion as to the correctness of the reading of §1395dd(a) in the Cleland opinion.  This is far from a ringing endorsement of the Cleland rule, and it could mean its demise.  

Thus, the undertones of the court's opinion in Roberts lead us to conclude that the district courts and the circuit courts are more likely to reject the "improper motive" element discussed the Cleland decision, even where a failure to conduct an MSE is involved, and this makes it more likely that the focus under EMTALA in the future will be entirely on the question of whether the patient was properly evaluated or properly transferred.  It seems likely that, in coming years, the scope of liability under EMTALA will gradually become largely co-existent with that under state malpractice law, at least until the point at which the patient is stabilized.

- M. Sean Fosmire

This monograph was included in the 1999 Health Law symposium sponsored by the Michigan Institute for Continuing Legal Education, and featured as a lead article in the September 1999 issue of the Journal of the California Society for Healthcare Risk Managment (CSHRM).