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Year-End Greeting from
Buckingham’s President and CEO
By:
Nicholas T. George, Esq.
 As
2003 draws to a close, let me take
this opportunity to send holiday greetings to all of
our clients and friends. This has been a milestone year
for the Firm as we celebrated our 90th
Anniversary. Thank
you for the interest you have taken in our history – and
for the support you
have provided us throughout the decades. Please accept the
best wishes of everyone at Buckingham, Doolittle & Burroughs, LLP for a joyous holiday season and a very
happy New Year.
Nicholas George is President and CEO as
well as a member of the
Business and Real Estate & Construction Law Practice
Groups. He can be contacted at
ngeorge@bdblaw.com
or
330.258.6498.
Appropriate Screening
Under The Emergency Medical Treatment And Active Labor
Act
By:
Thomas R. Himmelspach, Esq. and
Philip E. Howes, Esq.
Hospitals and physicians
treating emergency room patients are u nder
specific duties imposed by EMTALA, a
federal law. The scope of the law is broad, and it is
continually evolving through judicial decisions and new
regulations. To give the reader an overview of the law,
we have divided the subject into three general areas to
be covered in successive articles. This article
addresses appropriate screening requirements under
EMTALA.
In 1986, Congress enacted
the Emergency Medical Treatment and Active Labor Act (“EMTALA”),[1]
commonly known as the “Patient Anti-Dumping Act.” As
the name implies, the Act addresses perceived abuses in
emergency department admitting practices. Hospital
emergency departments have two duties under EMTALA: (1)
to provide an “appropriate medical screening
examination” to determine whether an emergency condition
exists and, if so, (2) to stabilize the condition before
discharging or transferring the patient to another
medical facility.[2]
EMTALA was enacted to
prevent “patient dumping,” i.e., “the practice of
refusing to provide medical treatment to patients unable
to pay or transferring them before emergency conditions
are stabilized.”[3]
It provides for recovery of personal injury damages by
anyone harmed as a result of a hospital’s violation of
the statutory requirements.[4]
EMTALA applies to all
patients.[5]
The hospital’s duty under EMTALA applies without regard
to the resources of the patient, but the Sixth Circuit
has taken a narrow view of the EMTALA screening
requirements, holding that a plaintiff can establish
liability under the Act for an inappropriate screening
only by showing the defendant acted with an improper
motive. See Cleland v. Bronson Health Care Group,
Inc. The decision remains the law in the circuit,
although the United States Supreme Court noted in 1999
that the ruling was in conflict with decisions in the 1st,[6]
4th,[7]
5th,[8]
8th,[9]
10th,[10]
and District of Columbia[11]
circuits. See
Roberts v. Galen of Virginia.[12]
EMTALA states that a
hospital “must provide for an appropriate medical
screening examination within the capability of the
hospital’s emergency department….”[13]
A medical screening is “appropriate” under EMTALA if it
(1) conforms to the hospital’s screening procedures, and
(2) is reasonably calculated to identify critical
medical conditions that may be afflicting the patient.[14]
 The
requirement of an “appropriate screening” does not
guarantee a proper diagnosis, and a negligence standard
does not apply to determine whether a hospital’s
screening met the EMTALA requirement. Rather, an
appropriate screening is one that is applied uniformly
to all emergency room patients. When a hospital fails
to give an emergency room patient the same screening
regularly given to others under similar circumstances,
and the variation is more than de minimus, it can be
liable for damages under EMTALA.
In Johnson v.
Nacogdoches County Hospital,[15]
a Texas court of appeals affirmed summary judgment for a
hospital on a claim of inappropriate screening under
EMTALA. In that case, an RN had met the patient, Mrs.
Johnson, in the hallway leading to the ER, asked about
her complaints, and wheeled her to the ER triage nurse.
The nurse started an assessment 22 minutes later and
completed the assessment within fifteen minutes,
classifying Johnson’s condition as non-urgent. Johnson
then sat in the ER waiting room for 25 minutes before
leaving for another facility, where she died of
meningitis. Johnson’s estate sued the hospital,
alleging EMTALA liability for failing to provide an
appropriate screening. Noting that the hospital’s
utilization policy required that patients “will be
spoken with within ten minutes of arrival,” plaintiff
argued that the hospital had failed to provide an
appropriate screening, since 22 minutes had passed
before the triage nurse began her assessment. The
appellate court concluded that the 12-minute delay was
not a material deviation from the standard procedure,
particularly in light of the evaluation by the RN before
Johnson reached the ER.
Likewise, in Crystal
Star Phillips v. Hillcrest Medical Center,[16]
the Tenth Circuit Court of Appeals affirmed the
dismissal of an EMTALA claim brought against a hospital
by the estate of a decedent, where the hospital failed
to diagnose the patient’s bacterial endocarditis and
discharged him from the ER. The court noted that the
hospital had examined the patient in accordance with its
screening procedures, and that plaintiff, therefore, had
no claim under EMTALA, since the act “does not provide a
remedy for an inadequate or inaccurate diagnosis.”
In cases where a hospital
has not established a written screening procedure, a
plaintiff’s burden to show disparate treatment will
depend upon discovery on the defendant’s handling of
other patients with substantially similar symptoms. In
Guadalupe v. Agosto,[17]
the plaintiff sued a hospital for wrongful death,
alleging inappropriate screening under EMTALA. The
hospital had no written screening procedure and the
plaintiff “made no effort to compare [the decedent’s]
screening with screenings of other HIMA patients
suffering from substantially similar symptoms.”
The burden of proving
disparate treatment to establish an EMTALA screening
claim is rigorous and could lead to extensive and
burdensome discovery. At least one court has held that
the plaintiff must present specific evidence of
disparate treatment. In Marshall v. East Carroll
Parish Hosp. Service Dist,[18]
the Fifth Circuit affirmed summary judgment for a
defendant hospital on an EMTALA screening claim.
Defendant’s physician examined the plaintiff, a
15-year-old girl, at the emergency room and discharged
her with a diagnosis of respiratory infection. Her
condition worsened and she went to another hospital,
where she was diagnosed as suffering from a
cerebrovascular accident. Plaintiff alleged that the
defendant had failed to provide an “appropriate medical
screening examination” as required under EMTALA. The
defense submitted affidavits of the examining physician
and a nurse that the plaintiff’s examination was done in
a manner consistent with that for other patients with
similar symptoms. In response, plaintiff submitted the
affidavit of a nurse that during her 14-year employment
at the defendant hospital she had seen several other
patients with symptoms similar to the plaintiff’s who
were admitted for observation and further testing. The
trial court deemed the affidavit conclusory and
insufficient to establish a fact issue on the screening
claim. The circuit court affirmed, noting that the
plaintiff’s affidavit did not describe or identify the
other patients and gave no details about the conditions
of those patients.
The defense in an EMTALA
screening claim can, therefore, expect patient-specific
discovery concerning disparate treatment, and the merits
of a defense summary judgment may be reviewed in light
of the sufficiency of the responses. In Ortiz v.
Mennonite Gen. Hosp.,[19]
the court denied summary judgment to a defendant
hospital on a medical screening claim under EMTALA,
holding that the defendant had failed to adequately
answer discovery concerning the hospital’s screening
procedures. Because the hospital gave evasive answers
to interrogatories about its screening procedures, the
court held it was not entitled to summary judgment on
the EMTALA claim, and ordered that “MGH now needs to
disclose its procedures and its ‘applicable standard of
care.’”
Where the failure to
conform to the customary procedure was particularly
egregious, courts have held hospitals liable for
inappropriate screening under EMTALA. For example, in
Correa v. Hospital of San Francisco,[20]
a woman who entered a hospital with complaints of chest
pain was given a number (47) and told to wait. The
woman waited over two hours without anyone attempting to
assess her condition, and the court held that the
hospital had violated the EMTALA screening requirement.
The hospital’s policy statement defined the parameters
for an appropriate screening, requiring that emergency
room personnel promptly take the vital signs of all
patients, compile a written chart, and treat all chest
pain cases as critical. The court affirmed judgment
for plaintiff on a jury verdict for violation of the
EMTALA screening requirement.
On September 9, 2003, the
Centers for Medicare & Medicaid Services (“CMS”) issued
a final rule clarifying EMTALA policies relating to
various matters.
[21] The new rules do
not discuss standards for appropriate screening under
EMTALA, but do address the subject of delays in
screening. Under the earlier regulation, 49 CFR
489.24(c)(3), hospitals are prohibited from delaying
screening in order to inquire about the patient’s method
of payment or insurance status. The rule has now been
clarified at 49 CFR 489.24(d)(4) to apply to hospitals,
physicians, and nonphysician practitioners. In a
“Special Advisory Bulletin,”[22]
CMS addressed the hospital’s duty where a patient
inquires about financial liability for emergency
services, and stated that the inquiry should be answered
by a knowledgeable staff member who could explain that
the hospital is ready to provide the necessary screening
and/or stabilization without regard to the patient’s
ability to pay. CMS added that the staff member should
urge the patient to defer discussion on financing until
after the screening or stabilization, if possible.
In summary, an EMTALA
claim of inappropriate screening is not judged on a
negligence standard, but on whether the hospital
followed its own standards in examining the patient.
Minor deviations from that standard generally will not
support liability, but egregious violations will. An
EMTALA screening claim involves broad discovery, and a
defendant hospital may lose an opportunity for summary
judgment by failing to respond substantively to relevant
inquiries.
Thomas Himmelspach is a Shareholder and a
member of the Medical Malpractice Defense and Health Law
Practice Groups. He can be contacted at
thimmelspach@bdblaw.com
or
330.491.5284.
Philip Howes is a Shareholder and a
member of the Medical Malpractice Defense and Health Law
Practice Groups. He can be contacted at
phowes@bdblaw.com
or
330.491.5239.
____________________________
New Buckingham Attorneys
Since
our last Advisor, Buckingham has had a host of
wonderful attorneys join the Firm. We would like to take
this time to welcome them to the BDB family.
Buckingham AkronSM
Anoop K. Bhasin – Business Practice Group
Matthew Bradford – Business Practice Group
Matthew R. Duncan – Litigation Practice Group
Buckingham Boca RatonSM
L.A. Perkins – Litigation Practice Group
Buckingham CantonSM
G.
Brenda Coey – Medical Malpractice Defense Practice
Group
Thomas R. Himmelspach – Medical Malpractice Defense
and Health Law Practice Groups
Philip E. Howes – Medical Malpractice Defense and
Health Law Practice Groups
Edward T. Kennedy – Business and Intellectual Property
Practice Groups
Richard S. Milligan – Medical Malpractice Defense and
Health Law Practice Groups
Paul J. Pusateri – Employment Law Practice Group
Buckingham ClevelandSM
David J. Lindner – Real Estate & Construction Practice
Group
Jennifer L. Myers – Medical Malpractice Defense
Practice Group
Mary Ann Pate – Trusts & Estates Practice Group
Buckingham ColumbusSM
Carla J. Cannon – Workers’ Compensation Practice Group
Kimberly Cocroft – Litigation Practice Group
Frank Schuckmann – Business Practice Group
Kudos
 Mary
Sue Donohue, Esq. was extensively quoted in the
article titled “Heirs, Creditors and Settling an Estate”
from Kiplinger’s Personal Finance - December Issue.
Joseph J. Feltes, Esq. is the author of “Chapter
Five – Informal Resolution and Its Use in Peer Review” of
the American Health Lawyers Association’s Peer Review
Guidebook, 3rd Edition released in October
2003.
 Jeffrey
D. Weinstock, Esq. authored a chapter in
Compliance & HIPAA Made Easy, Fraud & Abuse Compliance &
HIPAA Solutions which was released by Anadem
Publishing in November 2003.
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
December 18, 2003,
James L. Fisher (Buckingham AkronSM)
will speak on
“Important Terms and Conditions of Commercial Purchase
Agreements” at the Real Property Law Forum: Real
Property Issues for the General Practitioner in Akron,
Ohio. Please reference
www.akronbar.org
or www.cuybar.org
for additional information.
On
January 14, 2004,
Steven A. Dimengo (Buckingham AkronSM)
will be a
presenter at the
Lorman Education Services Continuing Education Seminar in
Akron, Ohio. He will speak on “Sales and Use Tax in
Ohio.”
Please
contact Lorman Education Services for additional
information at
www.lorman.com or 888.678.5565.
On
January 20, 2004,
Steven A. Dimengo (Buckingham AkronSM)
will present
“Proactive Approaches to Tax Compliance: Controls &
Voluntary Disclosures,” at the Manufacturers’
Education Council 13th Annual Ohio Tax
Conference in Columbus, Ohio. Please reference
www.mecseminars.com
for additional
information.
On
January 24, 2004,
John P. Slagter (Buckingham ClevelandSM)
will give a
presentation at a Lorman Education Services sponsored
seminar titled “Legal Aspects of Condominium
Development and Homeowner’s Associations in
Ohio.”
Please
contact Lorman Education Services for additional
information at
www.lorman.com or 888.678.5565.
Out and About – Recent Presentations:
Business Practice Group
Robert W. Briggs (Buckingham AkronSM)
spoke at an Ohio Grantmakers Forum meeting on “The
Role of Private and Family Foundations in Regional
Issues.”
Steven A. Dimengo (Buckingham AkronSM)
spoke at a Lorman Education Services Continuing
Education Seminar in Beachwood, Ohio. His topic was
“Sales and Use Tax for Manufacturers.” He also spoke
on “Ohio Sales/Use
Tax: Recent Trends, Development and Planning
Opportunities” at The Ohio Society of Certified Public
Accountants 2003 Federal Tax Planning Symposium and the
University of Akron Tax Conference. In addition, Mr. Dimengo presented “Major
Business Tax Changes in
Ohio”
at the Manufacturers’
Education Council in Columbus,
Ohio. Most recently,
Mr. Dimengo was presenter at the Lorman Education Services
Continuing Education Seminar in Cleveland, Ohio. His
topic was “Tax Issues Facing Small Businesses.”
Cathy C. Godshall,
David J. Lewis (Buckingham AkronSM),
Lisa deFilippis,
and
Terry
W. Vincent
(Buckingham ClevelandSM)
were presenters at the 2003 Tax Update Seminar in Akron,
Ohio. Their topics were “Tax Exempt Organizations – A
Primer,” “ax Consequences of Damage Awards & Settlements,”
“What’s New in Employee Benefits,” and “The
Slippery Slope-Sliding From a Civil to a Criminal Tax
Audit.”
Rana M. Gorzeck (Buckingham Boca RatonSM)
gave a presentation on employment background checks at
the American Woman’s Society of Certified Public
Accountants Dinner.
David J. Hrina
(Buckingham AkronSM)
gave a
presentation at the
“Homeland Security Conference” in Sandusky, Ohio. His topic was
“Environmental Concerns for Transporters of Hazardous
Materials.”
Terry W. Vincent
(Buckingham ClevelandSM)
participated on a panel that addressed “Tax Shelters and
the New Reporting Requirements” at a Cleveland Tax
Institute sponsored event. His topics were
“Attorney/Client Privilege” and “The Tax
Practitioner.” He also presented “The Slippery
Slope-Sliding From a Civil to a Criminal Tax Audit” at
the Akron Bar Association and University of Akron School
of Law 2003 Tax Update Seminar.
Theodore D. Ward
(Buckingham ClevelandSM)
gave a
presentation to Corporate Plans, a Buckingham client.
Employment Law Practice
Group
Jason M. Baasten
(Buckingham CantonSM)
was a presenter
at Buckingham’s 15th Annual Employment Law
Seminar. He spoke on “The Bureau of Workers’
Compensation Drug-Free Workplace Program.”
Gerald B. Chattman
(Buckingham ClevelandSM)
presented
“Workplace Violence” at the “Homeland Security
Conference” in Sandusky, Ohio.
Natalie F. Grubb
(Buckingham ClevelandSM)
spoke on
“How to Conduct Background Checks in Compliance with the
Fair Credit Reporting Act” at the “Homeland Security
Conference” in Sandusky, Ohio and Buckingham’s 15th
Annual Employment Law Seminar held in Independence, Ohio.
Ashley M. Manfull
(Buckingham AkronSM)
gave a
presentation on “The Proposed New Wage and Hour
Overtime Exemption Standards” at Buckingham’s 15th
Annual Employment Law Seminar.
Tod T. Morrow
(Buckingham CantonSM)
presented
“How to Conduct Background Checks in Compliance with the
Fair Credit Reporting Act” at Buckingham’s 15th
Annual Employment Law Seminar.
Health Law Practice Group
Joseph J. Feltes (Buckingham CantonSM)
gave
a presentation at the Lorman Education Services sponsored
seminar titled, “Health Care Corporate Compliance Programs
in Ohio” in Columbus, Ohio.
Shila Nalawadi (Buckingham CantonSM)
presented at two Lorman Education Services Seminars. Her
topics were “Confidentiality of Medical Records in Ohio”
and “Health Care Corporate Compliance Programs in Ohio.”
Litigation Practice
Group
Alan P. DiGirolamo
(Buckingham ClevelandSM)
spoke at the
Lorman Education Services Seminar titled “Ohio
Construction Lien Law.” His topics were “The Impact of
Insolvency on Mechanics’ Liens and Mechanics’ Liens
Claimants” and “Litigation and Enforcement of
Mechanics’ Lien Claims.”
David L. Drechsler
and
Douglas
J. Paul
(Buckingham ClevelandSM)
were presenters at
the “Homeland Security Conference” held in Sandusky, Ohio. Their topics were
“Overview of Trade Secrets Law” and “Avoiding
Costly Litigation.”
David L. Drechsler presented “Will Contests:
Procedures, Lack of Testamentary Capacity and Undue
Influence” at Stark County Annual Probate Seminar and
Buckingham’s Complex Probate Litigation Seminar titled
“How to Protect an Inheritance.”
William B. Leahy (Buckingham ClevelandSM)
spoke to the Risk and Insurance Management Society in
Dearborn, Michigan. His topic was “Insurance
Coverage.”
Douglas J. Paul spoke on “Hostile Working
Environments: Investigation, Discipline, and Liability
Issues” at the 15th Annual Employment Law
Seminar. In addition, he gave a presentation on
“Powerful Legal Negotiation in Ohio” at a National
Business Institute Seminar in Cleveland.
L.A. Perkins (Buckingham Boca RatonSM)
was a speaker at the American Woman’s Society of
Certified Public Accountants Dinner. She spoke on
employment background checks.
Medical Malpractice Defense Practice Group
Joseph J. Feltes and
Shila Nalawadi (Buckingham CantonSM)
presented on HIPAA issues for the Akron General
Medical Center and Mogadore Fire Department & EMS.
Joseph J. Feltes gave a presentation on “Health
Care Corporate Compliance Programs in Ohio” at a
Lorman Education Services Seminar in Columbus, Ohio.
Mark D. Frasure and
Christopher S. Humphrey (Buckingham CantonSM)
spoke on “Medical Records Documentation” at an
Akron General Medical Center sponsored seminar titled
“Grand Rounds” in Akron, Ohio.
Christopher S. Humphrey spoke at the
Ohio Health Care
Association, District IV meeting at Bay Community Hospital
in Oregon, Ohio. The topic he covered was “Nursing
Home Litigation: Anatomy of a Nursing Home Lawsuit.”
Richard S. Milligan (Buckingham CantonSM)
presented “Physician Practice Management” to
the residents at Aultman Hospital in Canton, Ohio. He
also presented “Nursing Law: Standards for Promoting
Client Safety” at the Northeastern Ohio Perianesthesia
Association in Canton, Ohio.
Shila Nalawadi spoke on “Confidentiality of
Medical Records in Ohio” at a Lorman Education
Services Seminar in Columbus, Ohio.
Real Estate & Construction Law Practice Group
Robert A. Hager
(Buckingham ClevelandSM)
presented
“Preserving and Presenting Claims Under Payment and
Performance Bonds” at the Lorman Education Services
Seminar titled “Ohio Construction Lien Law.”
Donald B. Leach, Jr.
(Buckingham ColumbusSM)
was a presenter
at the Builders Exchange of Central Ohio. He presented
“The How’s and Why’s of Mechanics’ Law.” He also
presented “Ohio
Mechanics’ Liens”
and Hot Construction topics at the Professional Education
Systems Institute, LLC in Columbus, Ohio.
John P. Slagter
(Buckingham ClevelandSM)
spoke on “Bonding Off Liens” and “The Notice to
Commence Suit on Liens” at the Lorman Education
Services sponsored seminar titled “Ohio Construction Lien
Law Seminar.” He also spoke at the 2nd Annual
Land Use Law Conference on “The Legality of Impact Fees
– Appointing the Cost of Development at the CLE
International.” In addition, he presented at the
“Homeland Security Conference” in Sandusky, Ohio, the Ohio
State Bar Association CLE Institute class – Titles to Real
Estate in Ohio, and the American Society
of Professional Estimators monthly meeting. His topics
were “Public Documents Request,” “Liens and
Encumbrances Affecting Real Estate,” and updates on
Mechanics’ Lien Law and Fairness on Contracts Law.
Trusts & Estates
Practice Group
Phylip J. Divine (Buckingham AkronSM)
was a presenter at the National Business Institute
sponsored “Adoption Law in Ohio.”
Jeffrey A. Halm
(Buckingham CantonSM)
presented at the
Institute of Management Accountants on
“Risk Management and Asset Protection Planning.” In
addition, he was a seminar presenter for the American
Heart Association and the Canton Business Network. His
topics were “Estate and Charitable Planning Strategies”
and “Coordination and Cooperation in Estate
Planning,” respectively.
Patricia A. Pacenta (Buckingham AkronSM)
spoke on
“Section 529 Plans and Other Education Savings Techniques”
before the Ohio Chapter of the American College of Trusts
and Estates Counsel in Cincinnati, Ohio.
David W. Woodburn (Buckingham AkronSM)
gave a presentation on “Intentional Interference
with an Inheritance” at Buckingham’s Complex Probate
Litigation Seminar, titled “How to Protect an
Inheritance.” In addition, he spoke on “Avoiding
Pitfalls in the Probate Process,” at the New Lawyer
Training Seminar sponsored by the Akron Bar Association
and the University of Akron School of Law.
Workers’ Compensation
Practice Group
Michael
L. Williams
(Buckingham
ColumbusSM)
spoke
at the Council on Education in Management in Columbus,
Ohio. His topic was “Solving Your Challenging Workers’
Compensation Dilemmas: Case Studies of Confusing
Psychiatric Claims.”
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, Senior Marketing
Coordinator
lhenderson@bdblaw.com or 800.686.2825 ext. 473. |
