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)[1] requires that medical care providers appropriately screen patients to identify an “emergency medical condition”[2] 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,[3] nor to extension by the submitting of a 180-day letter.[4] The limitation period runs, also, regardless of any disability affecting the complainant.

For example, in Vogel v. Linde,[5] 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.”[6] 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.”[7]

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.[8]; Lee v. Alleghany Regional Hosp. Corp.[9]; Power v. Alexandria Physicians Group, Ltd.[10]

Under S.B. 281, effective April 8, 2003, the Ohio legislature established caps on non-economic damages in medical negligence claims.[11] 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.[12] 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.[13] 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.[14] 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.”[15] 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,[16] 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.[17]

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.[18] 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.[19] 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.[20] 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,[21] 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.”[22]

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.”[23] It then reviewed the federal law concerning privileges for peer review records. Under the Health Care Quality Improvement Act of 1986,[24] 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.[25] 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.”[26]

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

[1] 42 U.S.C. 1395dd.

[2] 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).

[3] O’Stricker v. Jim Walter Corp. (1983), 4 Ohio St.3d 84.

[4] R.C. 2305.113, S.B. 281, eff. 4-11-03, formerly R.C. 2305.11(B)(1).

[5] (C.A. 4, 1994), 23 F.3d 78.

[6] H.R. Rep. No. 421, 99^th Cong., 1^st. Sess., p.3, at 3 (1985).

[7] 42 U.S.C. 1394dd(d)(2)(A).

[8] (S.D. Ind., 1989), 709 F. Supp. 853, 855.

[9] (W.D. Va. 1991), 778 F. Supp. 900.

[10] (C.A. 4, 1994), 42 F.3d 851.

[11] As amended under S.B. 281, R.C. 2323.43 provides that compensatory damages for non-economic loss are capped at the greater of $250,000 or an amount equal to three times the plaintiff’s economic loss, to a maximum of $350,000 for each plaintiff or $500,000 for each occurrence. If the claim is for permanent injury or substantial physical deformity, loss of use of a limb, or loss of a bodily organ system, the non-economic damages are capped at $500,000 for each plaintiff or $1 million for each occurrence.

[12] For further discussion on this point, see “Appropriate Screening Under the Emergency Medical Treatment and Active Labor Act,” Advisor, Vol. 12, Issue 3, Dec. 2003.

[13] (C.A. 4, 1994), 42 F.3d 851.

[14] Va. Code Ann. §8.01-581.15 (Michie Supp. 1993).

[15] Va. Code Ann. §8.01-581.1 (Michie Supp. 1993).

[16] Bruni v. Tatsumi (1976), 46 Ohio St.2d 127.

[17] Like the medical malpractice reform law (S.B. 281), S.B. 80 provides that damages for non-economic loss are capped at $250,000 or three times the economic loss, subject to a cap of $350,000 for each plaintiff and $500,000 for each occurrence that is the basis of that tort action.” R.C. 2315.18. Unlike S.B. 281, however, S.B. 80 provides for no cap on non-economic damages for “permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system” or for “permanent functional injury that renders the injured party unable to perform life sustaining activities.”

[18] See e.g., R.C. 2305.252.

[19] (D.C. Colo. 2004), 221 F.R.D. 644

[20] 12-36.5-104, C.R.S.; 25-3-109, C.R.S.

[21] (D.C. Colo. 1990), 750 F. Supp. 1063.

[22] 750 F. Supp. 1066.

[23] Id., citing Hancock v. Hobbs (C.A. 11, 1992), 967 F.2d 462; Robertson v. Neuromedical Center (M.D. La. 1996), 169 F.R.D. 80, 82.

[24] 42 U.S.C. § 11101, et seq.

[25] Other courts have also held that HCQIA does not protect peer review records from discovery. See Poliner v. Texas Health Systems (N.D. Tex. 2001), 201 F.R.D. 437, 438; United States v. QHG of Indiana, Inc. (N.D. Ind. 1992), 1998 U.S. Dist. LEXIS 23512; Syposs v. United States (W.D. N.Y.) 179 F.R.D. 406, 410.

[26] 221 F.R.D. 648.

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.

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.

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:

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.

John C. Ross, Esq. (Buckingham Canton^SM) 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, Esq. (Buckingham Columbus^SM) has been asked to serve on the Legal Advisory Committee of the Columbus Foundation.

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.

On April 1, 2005, Richard S. Milligan (Buckingham Canton^SM) 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 Boca^SM) 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 Boca^SM) 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 Akron^SM) 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.

Steven A. Dimengo (Buckingham Akron^SM) 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 Akron^SM) 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.

Richard S. Milligan (Buckingham Canton^SM) 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.

Donald B. Leach, Jr. (Buckingham Columbus^SM) 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 Akron^SM) presented Jim Fisher Does a Good Deed at Buckingham’s 2005 Annual Real Estate & Construction Law Seminar.

Nicholas T. George (Buckingham Akron^SM) presented How to Work Efficiently With Your Lawyer at Buckingham’s 2005 Annual Real Estate & Construction Law Seminar.

David J. Lindner (Buckingham Cleveland^SM) discussed the New Developments in Ohio Condominium Law at Buckingham’s 2005 Annual Real Estate & Construction Law Seminar.

Henry I. Reder (Buckingham Cleveland^SM) spoke at Buckingham’s 2005 Annual Real Estate & Construction Law Seminar on Construction Observation Testing & Inspection.

John P. Slagter (Buckingham Cleveland^SM) 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 Cleveland^SM) 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.

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.