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Summers v Baptist Medical Center

(on rehearing)


The case of Summers v Baptist Medical Center Arkadelphia, 69 F3d 902 (8th Cir 1995), rev on reh 91 F3d 1132 (1996), originating from Arkansas, is the most prominent case involving a claim that the failure to make a diagnosis can support a claim for violation of the EMTALA. The decision of the full Court, issued in August 1996, is undoubtedly the most significant EMTALA decision rendered this year.

In Summers, an examination of a patient who had fallen from a tree stand while hunting was allegedly incomplete because a chest x-ray had not been included when a set of spinal x-rays was ordered. The physician did not believe that the patient had any fractures, and discharged him home, with instructions. There was no transfer to another facility involved. The patient presented at another hospital two days later, and he was diagnosed with an acute comminuted vertebral fracture, a sternal fracture, and bilateral hemopneumothoraces secondary to untreated rib fractures.

The posture of the case is important. The Summers case was decided on a motion for summary judgment, during an early phase of the case. This means that the Court did not have to find that a violation of EMTALA had in fact occurred. The more narrow issue was whether the facts as alleged by the plaintiff and as established in pretrial discovery were legally sufficient to support a finding of violation.

At the District Court level, the ruling was in favor of the hospital, and the case was dismissed. The original ruling of the Circuit Court of Appeal was in favor of the plaintiff, and the lower court's decision was reversed. A request was made for rehearing en banc (by the entire Court) and was granted. After reargument and reconsideration, the Court found in favor of the hospital and reinstated the decision of the District Court, dismissing the EMTALA claim.

First opinion

The three-judge panel of the Court of Appeals which originally heard the case held that the facts of the case would support a finding that a violation had occurred, because (1) the EMTALA requires that hospitals develop screening procedures to identify critical conditions and (2) the examining physician had testified that a patient who complained of chest pain was a candidate for a chest x-ray --that is, that a chest x-ray should be included as part of the medical examination for such a patient.

The court noted that other courts have declared that the EMTALA "is not a federal malpractice statute and does not set a national emergency health care standard; claims of misdiagnosis or inadequate treatment are left to the state malpractice arena." See Reynolds v Mercy Hospital, 861 F. Supp. 214 (W.D.N.Y. 1994) Nonetheless, under the court's ruling, the EMTALA would have the effect of imposing an affirmative requirement that a diagnostic test be given as part of the screening examination, at least when the examining physician admits that he would include the test in the examination, given certain complaints. This decision had the effect of adding a substantive requirement that a specific test be done to the EMTALA's general requirement that the patient be provided with "an appropriate medical screening examination". The original decision can best be understood as a case interpreting the term "appropriate" in that phrase, rather than one imposing a duty to make the correct diagnosis, but the effect is the same in many instances.

Opinion on rehearing

On rehearing, the full court began by agreeing that the issue was the interpretation of the term “appropriate” and by observing that the legislative intent of the statute was an important consideration in making that interpretation. This follows the familiar principle that courts may look to the purpose for which legislation was enacted if the language used in the statute is amiguous, vague, or uncertain in meaning.

The court noted that the EMTALA had been enacted to address the narrow problem of patient dumping. It went on to restate the observation that had been made by the three-judge panel:

"As far as we can tell, every court that has considered EMTALA has disclaimed any notion that it creates a general federal cause of action for medical malpractice in emergency rooms."

It then noted:

"In construing statutes that are less than explicit, the courts will not assume a purpose to create a vast new realm of federal law, creating a federal remedy for injuries that state tort law already addresses. If Congress wishes to take such a far-reaching step, we expect it to say so clearly. This is the rule, generally speaking, in interpreting federal criminal statutes."

The court observed that it was desireable to fashion some kind of objective limitation on what would otherwise be a "vast new realm of federal law", and said,

"If improper motive is not required, and if the statute does not create a federal remedy for medical malpractice in emergency rooms, what does the statute do? Something more than or different from negligence must be shown, but what is that "something"? We have previously taken the position that the "something" required is lack of uniform treatment. . . An inappropriate screening examination is one that has a disparate impact on the plaintiff. Patients are entitled under EMTALA, not to correct or non-negligent treatment in all circumstances, but to be treated as other similarly situated patients are treated, within the hospital's capabilities. It is up to the hospital itself to determine what its screening procedures will be. Having done so, it must apply them alike to all patients."

The Court noted that this reasoning was consistent with that adopted in a number of other decided cases, including Vickers v. Nash General Hospital, Inc., 78 F.3d at 143; Correa v. Hospital San Francisco, 69 F.3d 1184, 1192-93 (1st Cir. 1995) cert. denied, 116 S. Ct. 1423 (1996); Repp v. Anadarko Municipal Hospital, 43 F.3d 519, 522 (10th Cir. 1994); and Holcomb v. Monahan, 30 F.3d 116, 117 (11th Cir. 1994).

Commentary

The Summers case is extremely important as an interpretation of the "appropriate medical screening examination" requirement precisely because several of its predecessor cases (including Powers, cited in the FAQ) have seemed to suggest that the requirement that an "appropriate medical screening examination" be afforded to all patients includes a requirement that the proper diagnosis be made, and because the initial opinion carried that suggestion further in imposing an affirmative diagnostic requirement under EMTALA.

The final opinion in Summers considered and rejected the argument that any negligently performed examination is by definition "inappropriate":

"What is meant by the word 'appropriate'? One possible meaning, perhaps the most natural one, would be that medical screening examinations must be correct, properly done, if not perfect, at least not negligent. It would be easy to say, for example, simply as a matter of the English language, that a negligently performed screening examination is not an appropriate one. So far as we can determine, however, no court has interpreted the statute in such an expansive fashion, and it is easy to understand why."

The testimony of the physician who said that a chest x-ray would be done as part of the protocol if the patient had complained of pain in the sternum or pain in the ribs seriously confused the legal interpretation for the three-judge panel. Such a comment may reflect a medical perception of a standard of care requirement, but does not constitute a "policy" as that term is used by attorneys advising hospitals on EMTALA-related issues. Such "policies" may dictate when and under what circumstances certain administrative things should be done, but they do not dictate to physicians how they should carry out the diagnostic process. Nor do policies dictate the terms of treatment to physicians. The approach to diagnosis and treatment is a matter of medical management, involving the exercise of medical judgment and discretion, and physicians' independent medical judgement should not be compromised or constrained by written policies which are intended to fulfill administrative and regulatory requirements.

A policy governing E.R. presentations, to help to ensure medical compliance with the requirements of the EMTALA and its regulations, would ideally include:

  1. A direction that a physician or certain specifically designated professional substitutes (such as physician assistants) must see each patient who presents. The regulations under EMTALA require that non-physicians be specifically designated and specifically authorized by the bylaws or policies to do such an examination. In our opinion, that function should not be delegated to nursing personnel.
  2. If a professional substitute is used, a provision that direct consultation in real time (not just a discussion of the case at the end of the day) in person or by telephone must take place before the patient is released.
  3. A provision that the patient must be admitted and treated, without consideration of ability to pay, if he is found to be suffering from an emergency medical condition. Recitation of the statutory definition of that term in the policy would be useful, as a guide, although it is general in nature and still requires the exercise of medical discretion.
  4. Directions for admission to special treatment areas, such as labor and delivery, with recognition of the fact that the referral must be to areas within the same hospital and not to other facilities. (HCFA has stated that its rule of thumb is that a transfer to a department which operates under the same Medicare certification as the emergency room is not a "transfer" for EMTALA purposes, and that it will regard any other referral as a transfer.)
  5. The required written certification by the physician if transfer is deemed necessary. Again, citation of the actual language of the statute may be advisable as a reminder of the standard to be applied.
  6. A clear and unambiguous statement that:
    • The policy must be followed for all patients who present, regardless of the nature of the complaint and regardless of triage decisions;
    • The patient may be asked for information about insurance or other matters related to payment only if such questions do not delay the examination;
    • No patient may be discriminated against in any of the steps to be followed until the determination has been made that he is not suffering from an emergency medical condition or until that condition has been stabilized.
We recommend that the policies refrain from imposing requirements of treatment, stabilization, consultation, or any other step which is properly regarded as a matter of medical judgment and discretion. Such policies can only cause problems in the event of litigation, as the experience of the Arkadelphia hospital and the loose testimony of its physician demonstrates.

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