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Procedural Issues in EMTALA
Litigation
By:
Thomas R. Himmelspach, Esq. and
Philip E. Howes, Esq.
 This
is the final article in a three-part series on
federal-law duties imposed on emergency medical care
providers. Under a federal law called EMTALA, those
duties include appropriately screening emergency room
patients and stabilizing those patients before discharge
or transfer. This writing discusses procedural law
applicable to EMTALA claims, specifically, the statute
of limitations, the applicability of state law damage
caps, and the issue of state law evidentiary and
discovery privileges.
The Emergency Medical Treatment and Active Labor Act (EMTALA)
requires that medical care providers appropriately
screen patients to identify an “emergency medical
condition” and stabilize any patient so identified before
discharge or transfer. Care providers can be liable for
violating these requirements.
A. The Statute of Limitations
Under 42 U.S.C.A. 1395dd(d)(2)(C), a two-year statute of
limitations applies to EMTALA actions. The statute reads:
“No
action may be brought under this paragraph more than two
years after the date of the violation with respect to
which the action is brought.”
The
two-year limitation is absolute. As the court held in
Holmberg v. Armbrecht (1946), 327 U.S. 392, 395, “If
Congress explicitly puts a limit upon the time for
enforcing a right which it created, there is an end of the
matter. The Congressional statute of limitation is
definitive.” Under the holding in Holmberg, the
limitation period on EMTALA actions, therefore, would not
be subject to Ohio’s discovery rule which applies to
medical negligence claims,
nor to extension by the submitting of a 180-day letter.
The limitation period runs, also, regardless of any
disability affecting the complainant.
For
example, in Vogel v. Linde,
plaintiff was the court appointed representative of her
seventeen-year-old, Down’s Syndrome, daughter. The
daughter had undergone outpatient surgery on her ear, and
showed signs of pain in the recovery room. The doctor
ordered an overnight admission, but the order called for
discharge the following morning without examination. She
was discharged but was suffering from a dislocation of her
cervical spine, which subsequently required surgery.
Nearly three years after the incident, plaintiff was
appointed representative (designated “committee” under
Virginia law) and then brought suit against the doctor and
hospital, alleging negligence in failing to diagnose the
spinal dislocation. Plaintiff included a claim against the
hospital for violating EMTALA.
The
hospital moved to dismiss the EMTALA claim, arguing it is
not tolled by infancy or incompetency, and the court
granted the motion. The circuit court affirmed, stating:
“Exceptions to the running of a limitations period because
of the would-be plaintiff’s disability, though common, are
nonetheless exceptions. The blackletter rule, recognized
by the Supreme Court since at least 1883, is that a
statute of limitations runs against all persons, even
those under disability, unless the statute expressly
provides otherwise. [Citations omitted.] This rule is
regularly applied to federal statutes that contain a
limitations period but no exception for disability.”
Under R.C. 2305.16, Ohio law provides that statutes of
limitations for persons “within the age of minority or of
unsound mind” are tolled “until the disability is
removed.” Ohio’s provision will not apply to EMTALA
claims.
B. Damage Caps
As
originally drafted, EMTALA authorized only that any
persons harmed by conduct violating the Act could “obtain
damages and other appropriate relief.”
The Act was revised to incorporate state law provisions
for personal injury damages, and now provides:
“Any
individual who suffers personal harm as a direct result of
a participating hospital’s violation of a requirement of
this section may, in a civil action against the
participating hospital, obtain those damages available for
personal injury under the law of the State in which the
hospital is located, and such equitable relief as is
appropriate.”
Several courts have concluded that when Congress
incorporated state-law provisions on damages in EMTALA
litigation, it intended to accommodate varying state
remedies aimed at redressing the medical malpractice
crisis. See
Reid
v. Indianapolis Osteopathic Medical Hosp., Inc.;
Lee
v. Alleghany Regional Hosp. Corp.;
Power v. Alexandria Physicians Group, Ltd.
Under S.B. 281, effective April 8, 2003, the Ohio
legislature established caps on non-economic damages in
medical negligence claims.
The existing caps on medical negligence claims would
probably apply to EMTALA claims, although plaintiffs would
likely argue that, because of the difference between
medical negligence claims and claims under EMTALA,
Congress intended only to incorporate general damage
provisions and not those related to medical negligence.
A
medical care provider that fails to meet the EMTALA
screening or stabilization requirements is liable for
resulting damages irrespective of whether the provider
acted within the standard of care in diagnosing or
treating the patient. The intent of EMTALA is not to
duplicate medical malpractice law or guarantee the patient
receives appropriate care.
Rather, it is intended to assure the patient receives the
same attention that the provider gives all its patients.
Brooks v. Md. Gen. Hosp., Inc.
(C.A. 4, 1993), 996 F.2d 708, 711. Because EMTALA does not
duplicate the standards for medical negligence liability,
a plaintiff suing under EMTALA may argue his claim is not
subject to any damage caps applicable to medical
negligence actions.
In
Power v. Alexandria Phys. Group., Ltd.
the court considered whether plaintiff’s EMTALA claim was
subject to a Virginia-law cap on medical negligence
damages. Under Virginia law, medical negligence claims are
subject to a $1 million damages cap.
Plaintiff sued for medical negligence and for EMTALA
liability, and was awarded $5 million on her inappropriate
medical screening claim. The district court ruled that the
cap did not apply to plaintiff’s EMTALA claim. The
hospital appealed and the circuit court reversed, holding
that the medical malpractice damages cap applied to the
EMTALA claim.
In
analyzing the issue, the Power court noted the
statutory definition of “malpractice” as “any tort based
on health care or professional services rendered, or which
should have been rendered, by a health care provider, to a
patient.”
The court concluded that plaintiff’s EMTALA claim
qualified as a medical claim as defined under the Virginia
statute, “despite the fact that it does not allege a
breach of the prevailing professional standard of care
generally associated with a malpractice claim.” The court
reasoned:
“There can be no dispute that
Arlington
Hospital is a health care provider under the statute, and
that the acts which form the basis of her EMTALA claim
occurred while Power was receiving ‘health care,’ as
defined by the statute. Furthermore, we conclude that the
tort alleged in Power’s EMTALA claim is ‘based on health
care or professional services rendered, or which should
have been rendered … to a patient,’ which constitutes
malpractice under the Virginia statute.”
By
the same reasoning, an EMTALA claim would qualify as a
“medical claim” as defined under Ohio statutory law. At
R.C. 2305.113(E)(3), medical claim is defined to mean “any
claim that is asserted in a civil action against a
physician, podiatrist, hospital … and that arises out of
the medical diagnosis, care, or treatment of any person.”
Although an EMTALA claim does not involve proof of a
breach of the standard of care as is required under Ohio
medical negligence law,
it involves either inappropriate screening or
stabilization and, therefore, “arises out of the medical
diagnosis, care, or treatment” of the patient. It is
likely that Ohio courts would apply medical negligence
damage caps to EMTALA claims.
Recent changes in tort law have made the question of
whether EMTALA claims are medical claims somewhat less
important under Ohio law, at least as to claims for
injuries that are not permanent or otherwise substantial
as defined under the new law. Ohio’s S.B. 80, effective
April 6, 2005, contains a non-economic damage limitation
that would apply to all actions, and contains the same
damage caps for non-economic loss as those applicable
under the medical malpractice reform law, S.B. 281. As to
permanent or “substantial” injuries, the medical reform
law caps non-economic damages at $500,000 for each
plaintiff or $1 million for each occurrence. The general
tort reform law, S.B. 80, provides for no limitation as to
such damages.
C. Discovery and Privilege Issues
The
inclusion of EMTALA claims in a medical negligence case
can affect the scope of discovery, specifically with
reference to state statutory privileges. For example, in
negligent credentialing cases, where the claim is that a
hospital gave privileges to a physician despite actual or
constructive notice of his or her incompetence, state law
may shield peer review records from discovery.
If the plaintiff has included a claim under EMTALA, the
statutory privilege may not apply.
The
effect of an EMTALA claim on statutory privilege for peer
review records was discussed recently in Atteberry v.
Longmont United Hospital.
In that case, the plaintiff’s decedent was involved in a
motorcycle accident and arrived at defendant hospital’s
emergency room in hypovolemic shock. Plaintiff alleged the
decedent should have undergone surgery to address his
internal bleeding within an hour of his arrival, and that
the defendant emergency room doctor negligently allowed
him to remain in the emergency room for three hours before
he was transferred by helicopter to another facility. The
decedent suffered a fatal cardiac arrest from
exsanguination during the helicopter flight. Plaintiff
alleged the defendants transferred the decedent to another
facility without meeting the EMTALA stabilization
requirements. In discovery, plaintiff requested the
doctor’s “credentialing files, peer review files, quality
assurance reports, morbidity/mortality reports, hospital
privileges, and any reports relating to the deaths of
patients in his care.”
The
defendants opposed the discovery, arguing that under
Colorado statutory law, peer review records were not
discoverable.
The court disagreed, holding that in cases involving
claims that are authorized under federal law, questions of
privilege are determined by federal common law and that
federal law did not establish a privilege for peer review
records. The court quoted from its decision in Everitt
v. Brezzel,
addressing the effect of a federal law claim on questions
of privilege:
“Where federal law provides the governing substantive law
in a lawsuit, the federal common law of privileges will
govern.”
The
court noted that “federal law provides the rule of
decision with regard to the EMTALA claim,” and that the
federal law of privilege will govern “even where the
evidence sought also may be relevant to pendent state law
claims.”
It then reviewed the federal law concerning privileges for
peer review records. Under the Health Care Quality
Improvement Act of 1986,
Congress established confidentiality for information
reported under the act, but did not provide that peer
review records or materials would be confidential or
protected from discovery.
Since peer review records are not protected from discovery
under federal law, the court held that the records were
not protected, despite the state statute:
“Every legislative and controlling judicial indication is
that federal policy, under these circumstances, opposes
recognition of the quality management and peer review
privileges enacted by the State of Colorado.”
The
Atteberry decision puts in question the effect of a
state law privilege for peer review in cases that include
EMTALA claims.
D. Conclusion
The
inclusion of EMTALA claims in a lawsuit can raise
procedural issues on matters generally viewed as resolved
under state law. Tolling provisions that typically apply
to statutes of limitations in state court will not apply
to EMTALA claims. Legislative measures to cap damages in
medical negligence claims might not apply to EMTALA
claims, depending on whether the statutory language used
in establishing the cap uses or incorporates a standard of
care test in defining the affected litigation. Finally,
hospitals should be aware of the potential effect of
EMTALA claims on the scope of peer review privileges. The
inclusion of such claims could expose peer review records
and materials to discovery under the reasoning followed in
Atteberry.
Thomas R. Himmelspach is a
Partner in the Health & Medicine
Practice Group of Buckingham, Doolittle & Burroughs, LLP.
He has extensive experience in insurance coverage
disputes, railroad litigation, conflicts of law disputes,
workers’ compensation subrogation, and state and federal
appellate practice.
He can be reached at
thimmelspach@bdblaw.com or 330.491.5284
Philip E. Howes is a Partner
in the Health & Medicine
Practice Group of Buckingham, Doolittle & Burroughs, LLP.
He has over 40 years of experience as a civil trial and
appellate lawyer in both state and federal jurisdictions.
He can be reached at
phowes@bdblaw.com or 330.491.5239
Emergency Medical Condition is defined by statute as
“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. 42 U.S.C. § 1395dd(e)(1)(A).
Your Wills and Trusts are Done – Are You Finished?
By:
Jeffrey A. Halm,
Esq.
Most
people don't like the thought of planning for the
management, protection, and eventual disposition of their
property. When individuals fail to make timely estate and
related financial decisions, the outcome can be stressful
and expensive for themselves and their families. A lack
of planning will clearly limit the ability of children to
implement their parents' wishes. It is important to let
others know what your plans are and to be explicit about
what you would like to see happen with your
hard-earned/financial and personal assets.
Even
when people have wills and trusts in place, they might not
anticipate the myriad of disagreements and problems that
can still plague families. Many times children are named
as multiple trustees without considering whether trust
decisions need to be made unanimously or by a simple
majority. Similarly, mechanisms to resolve deadlocks need
to be reviewed and included in estate planning
documents.
It
is also important to decide on the appropriate vehicles to
plan and to protect your assets. But it may be just as
critical to think about the details of the handling of
your affairs and to consider discussing such matters with
your beneficiaries. Often times, discussions with your
beneficiaries can be eye-opening experiences that may lead
to solutions not previously considered. Such solutions
and details are not always included in a traditional will
or trust. Moreover, informal instructions may sometimes
be more effectively utilized in other agreements or
documents. For example, burial instructions directing
cremation in a will are of little value when discovered
after the funeral and burial have occurred.
Many
people assume that once they have signed estate planning
documents their work is done. Actually, some of the most
important steps still need to be completed. Funding your
trust by appropriately re-registering the ownership of
your assets will help ensure the execution of your plan.
Additionally, you should also update your beneficiary
designations and observe all legal formalities with any
newly created entities. Omitting such details may cause
your estate plan to fail.
Appropriate planning will also avoid the additional stress
and expenses created when trying to locate all the
property of another. Finding someone's assets following
an unexpected loss is an adventure best avoided. A simple
listing of your assets, accounts, documents, and advisors
saves money and emotional wear and tear.
The
planning matters that families face today encompass a wide
scope of issues and concerns. It is easy to focus on just
the crisis of the moment. However, thoughtful planning
will integrate all of the unique issues important to you
ranging from your parents to your children and from asset
protection to retirement and beyond.
The
integration of all your planning matters will often
involve multiple advisors. Just as one plan does not fit
all circumstances, you may need to coordinate the work of
all the professionals with whom you work. These
professionals need to be willing, cooperative, and
communicative team players to make sure you have a plan
that meshes together smoothly.
Finally, everything changes. A totally integrated plan
meeting your specific needs and goals today may completely
miss the mark tomorrow. Regular review and fine-tuning
are vital to make sure your plan meets your changing needs
in an increasingly litigious and complex world.
This
article was originally published in M.D. News, 2005.
Jeffrey
Halm is a Shareholder in the Trusts and Estates Practice Group of Buckingham,
Doolittle & Burroughs, LLP and is the Managing Partner of
the firm’s Canton office. His practice focuses on estate,
asset protection, and business succession planning. He
can be reached at
jhalm@bdblaw.com or 330.491.5221.
Notaries Public: A Brief History and Ethical
Considerations
By: Nell B. Chambers
Although I had been a notary public for many years, I
had no idea about its history. Always looking to learn
something new, I began my adventure.
The John Marshall Law School has a plethora of articles
on the history of notary publics. I won’t repeat the
rather long history here, but I have provided the
highlights that I found most interesting.
The notary office originated during the Roman Republic,
probably in the time of Cicero (106 B.C.–43 B.C.).
Notaries actually prepared the various documents that
they notarized, which was a vital service because few
people could read or write. This office spread across
the world wherever Roman law prevailed. In Europe,
notaries typically only authenticated documents, much
like we do here in the States. In the Thirteenth
century, the Pope began appointing notaries in England.
On
October 25, 1639, Thomas
Fugill
became the first person in the American colonies to bear
the title of notary public. He assisted the magistrate
in the courts and kept an account of the court actions.
None of his records have survived, but he cannot easily
be forgotten. Suffice it to say, the first American
notary gained great notoriety. In November of 1639, he
and five others were appointed to dispose of house
lots. Several years later, it was discovered that he
had allotted to himself more land than he should have.
He was removed from office and excommunicated by the
Church. He then returned to England and no further
record of him exists.
An
amazing discovery! The first American notary failed to
abide by ethical standards. Where does that leave the
rest of us? I’ve spoken with notaries public who have
never committed an ethical violation while carrying out
their duties. For the rest of us, most violations have
been simple and easy to understand. Consider the
following:
-
Mr.
Big Client is always in your office, is a very nice
person, and sends you lovely boxes of chocolates on
holidays. His only problem is he’s very busy and
hardly ever in town. So he simply signs documents and
sends them back to you to be notarized. You know him
very well, so no harm, no foul?
-
What about a situation where everything looks great,
the seller and the buyer of real estate are sitting
there, right before your very eyes, with their
attorneys? The only problem is the seller seems to be
selling the land very cheap and he can’t quite seem to
stay awake during the document signing. When he’s
awakened by his attorney, he seems really confused.
We
all know what we should do in those circumstances. If
we commit an ethical violation, most of us won’t be
excommunicated from our churches or deported to another
country. Some of us will never be caught doing anything
unethical (but is “never being caught” the standard we
strive to achieve?). If we are ever called to give an
account for our notary acts, wouldn’t it be much simpler
to say under oath, “I NEVER, EVER notarize documents
without the person standing in front of me and having
evidence of who they are,” rather than, “Only for people
that I know and trust would I ever notarize a document
without them being in my presence”? As my mother often
said, “It takes more effort to cover up something than
to do the right thing the first time around.” I must be
getting older and wiser because that’s makes so much
more sense to me now. 
Originally published in National
Paralegal Reporter, Feb./Mar. 2004, Vol. 28, No. 4;
reprinted in Columbus Bar Assn. Bar Briefs, Summer 2004.
Ms. Chambers is a Paralegal in the
Litigation Practice Group. She is President of the
Paralegal
Association of Central Ohio. Ms. Chambers is an
associate member of the Ohio State and Columbus Bar
Associations and a member of the National Federation of
Paralegal Association. She can be contacted at
nchambers@bdblaw.com or 614.227.4276.
Kudos
 John
C. Ross
(Buckingham CantonSM)
was recently
elected as a member of the Board of Directors for the
Builders Exchange of East Central Ohio. This is a trade
association of commercial builders and affiliated
businesses in the Stark, Summit, Wayne, Medina, Portage,
Tuscarawas, Mahoning and Carroll counties geographical
area in Ohio. He is the first lawyer ever elected to the
Board.
 Thomas
J. Sigmund (Buckingham
ColumbusSM)
has been asked
to serve on the Legal Advisory Committee of the Columbus
Foundation.
BDB
congratulates the following attorneys on being elected
Shareholder:
L.A. Perkins
(Buckingham BocaSM)
Philip R. Wiese
(Buckingham
AkronSM)
David W. Woodburn
(Buckingham
AkronSM).
Practicing in Buckingham Boca RatonSM
 If
you do business or have a residence in Florida, we want to
remind you we have a Florida office staffed with
outstanding attorneys. Our Florida office can address
business, estate planning, financing, intellectual
property, litigation, employment, and real estate matters,
to name a few. We welcome the opportunity to provide
legal services when you are traveling to Florida.
For
additional information, contact us at 1.800.686.2825.
Speaking Out
Save the Date for these Upcoming Presentations:
On April 1,
2005,
Richard S. Milligan
(Buckingham
CantonSM)
will be presenting at the Community Legal Aid Services in
Ravenna, Ohio. He will be discussing Ethics for the
Legal Aid Practitioner. Also, on April 14, 2005,
Mr. Milligan will be speaking to the Aultman Health Center
at the Kent State University Conference Center about
Medical Malpractice and the Coronary Care Nurse.
On April 12,
2005,
Scott J. Topoloski
(Buckingham BocaSM)
will be speaking at a Lorman Education Services Seminar at
the Palm Beach County Convention Center in West Palm
Beach, FL. His topic is titled Collection Law in
Florida. If interested in this seminar,
click here or
888.678.5565.
On April 13,
2005,
Jeffrey D. Weinstock
and
George Weinstein
(Buckingham BocaSM)
will discuss a wide array of Estate Planning Issues at the
Marriott Hotel in Aventura, FL. Topics that will be
addressed include pour-over wills, disclaimers,
new techniques in Revocable and Irrevocable Trusts,
Charitable Giving Strategies, Intangible Tax
Trusts and Family Limited Partnerships.
On May 5,
2005,
Steven A. Dimengo
(Buckingham
AkronSM)
will
be speaking at a Lorman Education Services Seminar in
Independence, Ohio. The topic will focus on Advanced
Sales and Use Tax in Ohio. If interested in
registering for this seminar,
click here. On May 11, 2005, Mr. Dimengo will also be speaking at The Ohio Society of
Certified Public Accountants – Youngstown CPE Day in
Youngstown, Ohio. He will discuss Sales and Use Tax.
Out and About – Recent Presentations:
Business Practice Group
Steven A. Dimengo
(Buckingham
AkronSM)
presented at The Ohio Society of Certified Public
Accountants Seminar in Columbus. Steven’s topic was
State and Local Tax. Mr. Dimengo has also presented
at Lorman Education Services Seminar.
He discussed Sales and Use Tax in Ohio: A Beginner’s
Basic Course. Finally, Mr. Dimengo was a speaker at another Lorman Seminar. His
topic was Sales and Use Tax in Ohio.
David J. Lewis
and
Peggy S. Beistel
(Buckingham AkronSM)
spoke before
the Akron Tax Club. The focus of the presentation was on
Treasury Circular 230. Mr. Lewis also addressed
the University of Akron’s National Tax Conference on
Tax Practitioner Guidelines.
Health & Medicine Law
Practice Group
Richard S. Milligan (Buckingham CantonSM)
presented at the Stark County Bar Association Elder Law
Committee Luncheon. His topic was Ethics and the Elder
Law Practice. Mr. Milligan also
spoke at the National Association of Railroad Trial
Counsel Winter Meeting. He discussed Ethics and
Deposition Practice. Finally, he spoke to the Guidant Corporation on the
subject of Documentation and Legal Liability for the
Coronary Care Nurse.
Real Estate &
Construction Law Practice Group
Donald B. Leach, Jr.
(Buckingham
ColumbusSM)
presented at the Columbus Bar Association. He discussed
Real Property Institute: Construction Critical Path
Scheduling – A Primer. Also, Mr. Leach spoke at the
Builders Exchange. His topic was Risk Management.
Finally, Mr. Leach presented to XL Insurance on the topics
of Privileged Communications, Economic Loss
Doctrine and Construction Critical Path Scheduling
– A Primer.
James L. Fisher (Buckingham AkronSM)
presented
Jim Fisher Does a Good Deed at Buckingham’s 2005 Annual Real
Estate & Construction Law Seminar.
Nicholas T. George (Buckingham AkronSM)
presented How to Work Efficiently With Your Lawyer
at Buckingham’s 2005 Annual Real Estate & Construction Law
Seminar.
David J. Lindner
(Buckingham ClevelandSM)
discussed the
New Developments in Ohio Condominium Law at
Buckingham’s 2005 Annual Real Estate & Construction Law
Seminar.
Henry I. Reder
(Buckingham ClevelandSM)
spoke at Buckingham’s 2005 Annual Real Estate &
Construction Law Seminar on Construction Observation
Testing & Inspection.
John P. Slagter (Buckingham
ClevelandSM)
provided opening and closing remarks as well as
introductions of speakers at
Buckingham’s 2005 Annual
Real Estate & Construction Law Seminar.
Robert A. Hager (Buckingham
ClevelandSM)
spoke to XL
Insurance at their facility in Exton, PA. His topics
included Privileged Communications, Economic
Loss Doctrine and Construction Critical Path
Scheduling – A Primer.
INFORMATION ON
SEMINARS OR SPEAKERS If
you are interested in obtaining information on upcoming
seminars or would be interested in having speakers from
Buckingham, Doolittle & Burroughs, LLP make a presentation
to your organization, please contact: Lorna Henderson, Client Relations
Administrator, at lhenderson@bdblaw.com or
800.686.2825 ext. 86473. |
