Access to emergency services and care in Florida.

A pregnant woman goes into labor. Another person is beset by severe chest pains. Another person suffers a traumatic injury. All three may require the services of the emergency department of an acute care hospital. This article discusses the hospital's responsibility under the federal Emergency Medical Treatment and Active Labor Act (EMTALA) and under F.S. [Section] 395.1041.

Historical Background and Regulatory Framework

* EMTALA

EMTALA, 42 U.S.C. [Section] 1395dd, is a part of the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1986. The statute was passed after "patient dumping"--the practice of refusing to treat uninsured patients in need of emergency care came to the attention of Congress. H.R. Rep. No. 241, 99th Cong., 1st Sess., pt. 3, at 5 (1986); 131 Cong. Rec. H9503 (Oct. 31, 1985); 131 Cong. Rec. S13903 (Oct. 23, 1985). EMTALA would "send a clear signal to the hospital community . . . that all Americans, regardless of wealth or status, should know that a hospital will provide what services it can when they are truly in physical distress." 131 Cong. Rec. S13904 (Oct. 23, 1985) (statement of Sen. Durenberger).

The situation addressed by EMTALA has been described in these terms: "Reports of patient dumping rose in the 1980s, as hospitals, generally unencumbered by any state law duty to treat, faced new cost containment pressures combined with growing numbers of uninsured and underinsured patients."(1) The quote accurately describes Florida law on access to emergency services and care at the time EMTALA was enacted.

* F.S. [Section] 395.1041

Prior to 1986, Florida law on access to emergency services and care reflected as much concern with the patient's financial debt to the hospital as with the patient's well-being(2) The Florida Legislature then enacted Florida's first statute providing for some degree of emergency services regardless of the patient's ability to pay.(3) F.S. [Section] 395.0144, effective January 1, 1987, obligated general hospitals to admit emergency patients without regard to "economic criteria or indigency," where "a licensed hospital physician" had made a "determination . . . that a person seeking emergency services shall be admitted." Sweeping reform did not arrive until 1988, however, when the legislature enacted Florida's comprehensive statute on access to emergency services and care.(4) The statute, F.S. [Section] 395.0142, included a statement of legislative intent in which the legislature "declare[d] it to be of vital importance that emergency services and care be provided by hospitals to every person in need of such care." The new law also stated that "[e]mergency services and care shall be rendered without first questioning the patient or any other person as to his or her ability to pay therefor." F.S. [Section] 395.0142(3)(d) (1988). The initial reform statute enacted in 1986 ([Section] 395.0144) was made superfluous at best by the enactment of [Section]395.0142, and was repealed in 1992.(5) F.S. [Section] 395.0142 was later renumbered as [Section] 395.1041.(6)

* Administrative Enforcement and Private Actions

EMTALA provides that a Medicare-participating hospital that "negligently violates" a requirement of the statute is subject to a civil money penalty of not more than $50,000 (or not more than $25,000 in the case of a hospital with less than 100 beds) for each such violation. 42 U.S.C. [Section] 1395dd(d)(1). The Secretary of the U.S. Department of Health and Human Services has the authority to impose the civil money penalty.(7) 42 U.S.C. [Section] 1395dd(d)(3). Federal regulations implementing EMTALA indicate that the secretary has delegated the pursuit of civil money penalties to the Office of Inspector General of the Department of Health and Human Services. 42 C.F.R. [Section] 489.24(g)(3). The regulations further indicate that the department's administrative agency, the Health Care Financing Administration (HCFA), may terminate the participating hospital's Medicare provider agreement for a violation of EMTALA.(8) 42 C.F.R. [Section] 489.24(f).

EMTALA also provides for civil actions against hospitals. 42 U.S.C. [Section] 1395dd(d)(2). "Any individual who suffers personal harm as a direct result of a participating hospital's violation of a requirement of [EMTALA]" may 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." Id. EMTALA does not provide for civil actions against the hospital's physicians.(9)

Under Florida's own statute, the Agency for Health Care Administration is authorized to "deny, revoke, or suspend a license or impose an administrative fine, not to exceed $10,000 per violation, for the violation of any provision of [[Section] 395.1041] or rules adopted under [[Section] 395.1041]." F.S. [Section] 395.1041(5)(a). The Florida statute also provides for civil actions, but in a manner exactly contrary to EMTALA: Section 395.1041(5)(b) provides for civil actions by "[a]ny person who suffers personal harm as a result of violation" of [Section] 395.1041 or rules adopted thereunder, but the civil actions provided for are "against the responsible hospital administrative or medical staff or personnel" and not against hospitals.

The obligations of a hospital under EMTALA can be discerned by review of the cases arising under 42 U.S.C. [Section] 1395dd(d)(2)(A), the EMTALA provision for civil actions. This article analyzes a Florida acute care hospital's obligations under EMTALA through the chronology of an emergency episode, with reference made to F.S. [Section] 395.1041, where that statute substantially differs from EMTALA.

Chronology of Episode and Hospital's Obligations

* How the "Screening" Obligation Is Incurred

EMTALA requires first that a Medicare-participating hospital with an emergency department provide "an appropriate medical screening examination within the capability of the hospital's emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition [as defined] exists." 42 U.S.C. [Section] 1395dd(a). The "screening" duty begins "if any individual [whether or not a Medicare beneficiary] comes to the emergency department and a request is made on the individual's behalf for examination or treatment for a medical condition." Id.

Federal regulations implementing EMTALA define what is meant by "comes to the emergency department" in pertinent part as follows: "[W]ith respect to an individual requesting examination or treatment, that the individual is on the hospital property (property includes ambulances owned and operated by the hospital, even if the ambulance is not on hospital grounds)." 42 C.F.R. [Section] 489.24(b).(10) The regulation goes on to state that, "An individual in a nonhospital-owned ambulance on hospital property is considered to have come to the hospital's emergency department." Thus the hospital's "appropriate medical screening" obligation may commence if the patient, away from the hospital, is loaded into an ambulance "owned and operated by the hospital." The patient has then, by definition, "come to the emergency department" under the federal regulation.

Though decided before the effective date of 42 C.F.R. [Section] 489.24, Johnson v. University of Chicago Hospitals, 982 F.2d 230 (7th Cir. 1993), provides a paradigm example of a patient who has not "come to the emergency department," and so is not owed a medical screening under EMTALA. The opinion's second paragraph gives the factual context:

On February 2, 1990, Lenise Johnson, a one-month-old infant, stopped breathing. Her mother, Emerald Johnson, contacted "911" emergency medical services. Chicago Fire Department paramedics soon arrived at her home and began treating Lenise. Because Lenise remained in full cardiac arrest, the paramedics contacted the telemetry system operator situated at [University of Chicago Hospitals] Nurse Denise McCall. Although the paramedics informed McCall that they were only five blocks from UCH, because UCH had declared a "partial bypass" at that time, McCall instructed the paramedics to transport Lenise to St. Bernard's Hospital. She was treated in St. Bernard's emergency room and subsequently transferred to Cook County Hospital because St. Bernard's did not have a pediatric intensive care unit. Lenise died sometime after her transfer to Cook County Hospital.(11)

The Johnson court affirmed the district court's dismissal of plaintiff's EMTALA claim, stating simply that, "In accordance with the plain meaning of the statutory language, we do not believe that Lenise ever `came to' the UCH or its emergency department."(12) The result would be the same under the federal regulation. 42 C.F.R. [Section]489.24(b). It follows from the federal regulation's definition of "comes to the emergency department" that a patient in a "nonhospital-owned ambulance" not on "hospital property" has not come to the emergency department.

The very facts of Johnson, were they to take place in Florida, would constitute a violation of F.S. [Section]395.1041.A Florida hospital's medical screening requirement is triggered upon a mere request for "emergency services and care." F.S. [Section]395.1041(3)(a). "Emergency services and care" is defined as follows: "[M]edical screening, examination, and evaluation by a physician, or, to the extent permitted by applicable law, by other appropriate personnel under the supervision of a physician, to determine if an emergency medical condition exists and, if it does, the care, treatment, or surgery by a physician necessary to relieve or eliminate the emergency medical condition, within the service capability of the facility." F.S. [Section] 395.002(9). The Florida statute does not include the words nor the requirement that the patient "come to the emergency department" as required under EMTALA. Rather, the statute specifically provides for situations such as discussed in Johnson, where an emergency patient is conveyed in an ambulance in the direction of the nearest acute care hospital, and a paramedic or emergency medical technician in the vehicle requests emergency services and care for the patient by two-way radio en route. [Section] 395.1041(3)(a)2.a.(13) Ownership of the ambulance has no bearing under [Section] 395.1041.

The federal regulation defining "comes to the emergency department" as including ambulances owned and operated by the hospital may lead to legal problems beyond the scope of this article, but which bear a passing note. For example, there may be localities where the sole ambulance service is (or most of the ambulances are) owned and operated by one hospital; in such a locality, there may be a second hospital which has no ambulance service of its own. The situation may then arise where an emergency patient is loaded into an ambulance owned and operated by one hospital (thereby triggering that hospital's screening requirement under EMTALA) and transported to a different, geographically more proximate hospital (thereby triggering the latter hospital's screening requirements under both EMTALA and F.S. [Section]395.1041). A hospital that owns and operates its own ambulance service should be made aware of regulatory and civil liability which may accompany that service.

* Judicial Interpretation of "Appropriate Medical Screening"

When and if it is found that the hospital has the obligation to provide "an appropriate medical screening" under EMTALA, the question arises as to what is "appropriate." On this subject, federal case law repeatedly states two propositions. The first is that, despite Congress' motivation in enacting EMTALA, the screening requirement is due to "any individual" regardless of whether uninsured or underinsured; thus, in a civil action, it need not be alleged that the patient was denied a "screening" due to inability to pay.(14) The second is that the hospital can meet its duty of "an appropriate medical screening" if, in a given case, it does not diverge from its standard screening procedure, even if that screening procedure arguably is deficient. The federal courts hold uniformly that EMTALA's "screening" requirement was not meant by Congress to create a cause of action for medical malpractice; put another way, EMTALA does not require hospitals to provide a correct diagnosis in the course of performing "an appropriate medical screening."(15)

The understandable reluctance of the courts to confuse EMTALA with the law of medical malpractice leads to an interpretation of "an appropriate medical screening" favorable to hospitals. It may be noted that the hospital's full obligation under the statute is, by terms, the provision of "an appropriate medical screening examination within the capability of the hospital's emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition [as defined] exists." 42 U.S.C. [Section] 1395dd(a). In practice, however, the federal courts have undertaken no serious inquiry into "the capabilities of the emergency department," much less "ancillary services routinely available to the emergency department" in any given case.(16) Making such inquiries would tend to place the court in the position of judging medical decisions, which the courts determinedly refrain from judging under EMTALA. Notwithstanding what may seem to be "plain language" of EMTALA's "screening" provision, the line drawn by the case law gives great deference to the attending physician and is safely away from the hospital's resources.(17) Merely "some" screening, uniformly applied, constitutes "an appropriate medical screening"; conversely, a departure from the hospital's uniform "screening" procedure (which may equal no screening at all) is not "an appropriate medical screening" and, thus, is a violation of EMTALA.(18)

In setting what seems a remarkably low, if well-reasoned, standard for"an appropriate medical screening," the federal courts often point out that EMTALA is not needed to fill any breach of remedies, given the law of negligence and of medical malpractice.(19) Thus, it may be queried as to why one would bring an EMTALA private action, if relief is available under the law of negligence or malpractice. The answer is that plaintiff's burden of proof is easier under EMTALA. The provision for civil actions is in pertinent part as follows: "Any individual who suffers personal harm as a direct result of a participating hospital's violation of a requirement of [[Section]1395dd] 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." 42 U.S.C. [Section]1395dd(d)(2)(A). This has been construed as providing for strict liability.(20) The "screening" cases do not state it, but it may be in practice that the federal courts are reluctant to expand their interpretation of "an appropriate medical screening" due also to strict liability of the hospital under EMTALA.

* Is an "Emergency Medical Condition" Determined ?

If the hospital has incurred and discharged its duty of "an appropriate medical screening," it then must be determined whether the patient was found to have presented an emergency medical condition. "Emergency medical condition" under EMTALA is defined at 42 U.S.C. [Section]1395dd(e). The federal courts have interpreted EMTALA's "emergency medical condition" generally to mean that the patient is in imminent danger of death or serious disability.(21) (It may be noted that this judicial view probably excludes lesser complaints which patients commonly present to emergency departments, such as simple fractures.)

The duty to provide "an appropriate medical screening" is, as noted, "to determine whether or not an emergency medical condition [as defined] exists." 42 U.S.C. [Section]1395dd(a). If after "an appropriate medical screening" the patient is found not to have presented an "emergency medical condition," the hospital's obligations under EMTALA are at an end. It is irrelevant whether the hospital reasonably should have known of an "emergency medical condition" on the part of the patient in a given instance. The federal courts, ever mindful of the distinction to be kept between EMTALA and the law of medical malpractice, do not impose the objective "knew or reasonably should have known" standard upon hospitals regarding the presenting of an "emergency medical condition"; rather, the courts consider only whether the hospital actually knew of an "emergency medical condition."(22)

The "actual knowledge" standard for determining an "emergency medical condition" is not an invitation to medical staff of emergency departments to willfully ignore what is obviously an "emergency medical condition," as to do so invites negligence and malpractice liability. In practice, then, it may be assumed that an "emergency medical condition" which reasonably should be discerned generally is. Thereafter, the hospital's considerable obligation under EMTALA of "stabilizing" the condition begins, unless circumstances exist such that the patient may be appropriately transferred without stabilization. 42 U.S.C. [Section]1395dd(b).

* Stabilization of the Patient

If an emergency medical condition is determined, and the hospital does not transfer the patient as provided under the statute, the hospital "must provide . . . within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition." 42 U.S.C. [Section]1395dd(b)(1)(A). EMTALA case law currently is in some conflict regarding the extent of the hospital's obligation "to stabilize" an emergency medical condition, and the 11th Circuit has not yet taken an emphatic position.(23) At present, the safe bet for a Florida hospital under EMTALA is to bring all of its available resources, if necessary, to bear upon stabilization of the medical condition.

The position of the Fourth Circuit is that, whereas the "screening" obligation under EMTALA requires minimal screening uniformly applied, the "stabilization" obligation is met by whatever the occasion requires.(24) The hospital's obligation "to stabilize" under EMTALA is strictly construed according to the plain language of 42 U.S.C. [Section]1395dd(e)(3)(A).(25) Further, the hospital, if necessary, is obligated to provide medical treatment beyond the prevailing standard of medical care for a given patient.(26) The clear implication from the "stabilization" duty is that the hospital must absorb the cost of its services to the uninsured patient, no matter how considerable those services may be. The hospital which would make a business decision to withhold some degree of services to an uninsured patient later may find itself in an EMTALA private action, or regulatory action, or both, with their own adverse financial consequences.

The position of the Sixth Circuit is rooted in its conviction that an EMTALA claim requires plaintiff to prove improper "motive" on the part of the hospital.(27) Thus, as concerns stabilization, it is apparently irrelevant in the Sixth Circuit whether the patient's emergency medical condition was stabilized prior to transfer, without proof of improper motive.(28) The Sixth Circuit evidently considers that EMTALA's legislative history--as interpreted by the Sixth Circuit--outweighs the "plain language" arguments accepted by the Fourth Circuit in considering whether a hospital has met its obligation "to stabilize." The author's view is that the Sixth Circuit has read too much into what indeed appear to be EMTALA's plain terms, and that, given the opportunity, the 11th Circuit would do better to follow the Fourth Circuit.(29)

* Transfer of the Patient

Following "an appropriate medical screening" and the presenting of an "emergency medical condition," the patient will ideally be stabilized prior to any transfer.(30) However, EMTALA provides for extenuating circumstances where the patient may be transferred absent stabilization. In such circumstances, the patient may be transferred according to the requirements of 42 U.S.C. [Section]1395dd(c). Generally, those requirements are: 1) that the patient (or a legally responsible person acting on the patient's behalf) give their informed consent in writing; 2) that a physician sign a certification stating that the medical benefits outweigh the risks of the transfer; and 3) that the transfer is an "appropriate transfer" within the meaning of 42 U.S.C. [Section]1396dd(c)(2). The "appropriate transfer" provision in turn requires that the transferring hospital minimize the risks to the patient's health (and, if applicable, the health of the unborn child), that the receiving facility can accommodate the transfer and has agreed to it, that the transferring hospital sends to the receiving facility the patient's records, and that the transfer is effected through qualified personnel and transportation equipment.

EMTALA case law is relatively sparse concerning nonstabilized transfers, and thus it is more difficult to gauge the hospital's exposure in this regard than in cases involving only a medical screening or screening and stabilization.(31) However, as with cases involving only a screening, it appears that the federal courts will not judge medical decisions in considering nonstabilized transfers, and it may be inferred therefrom that hospitals are in compliance where medical staff follow the checklist of 42 U.S.C. [Section]1395dd(c) and minimize the risks to the patient's health in the course of the transfer.(32) It should be borne in mind that the facility receiving a transferred patient then bears its own obligations under EMTALA (and under F.S. [Section]395.1041).

Conclusion

EMTALA and F.S. [Section]395.1041 mandate that Florida hospitals with emergency departments provide access to emergency services and care. These laws may be only vaguely understood by the administrative staff of the hospitals to which they pertain, with the potential consequences of civil liability, fines, loss of Medicare certification, and, conceivably, even loss of hospital licensure. Thus, Florida attorneys who advise hospital clients should have some working knowlege of EMTALA and [Section]395.1041. If the attorney is never called upon to defend the hospital in a civil or regulatory action, he or she will have advised well.

(1) Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1039 (D.C. Cir. 1991).

(2) See FLA. STAT. [Section]395.0145 (1987). Section 395.0145 co-existed uneasily with Florida's reform efforts until its repeal by the 1988 Florida Legislature. 1988 Florida Laws ch. 294, [Section]45.

(3) 1986 Fla. Laws ch. 125, [Section]1.

(4) 1988 Fla. Laws ch. 186, [Section]6.

(5) 1992 Fla. Laws ch. 289, [Section]96.

(6) 1992 Fla. Laws ch. 289, [Section]24.

(7) The inclusion of the word "negligently" in [Section]1395dd(d)(1) may seem at odds with the administrative, as compared to the judicial, process; yet it is indeed the secretary and not a private plaintiff who is to impose civil money penalties. Holcomb v. Monahan, 807 F. Supp. 1526 (M.D. Ala. 1992),aff'd,30F.3d 116 (11th Cir. 1994). EMTALA originally provided for civil money penalties where a hospital "knowingly violated" the statute. See Burditt v. Department of Health & Human Services, 934 F.2d 1362 (5th Cir. 1991) (discussing standard under "knowingly").

(8) Historically, and by its own admission HCFA rarely terminates a hospital's Medicare provider agreement. See Report of HCFA Enforcement of Hospital Sanctions, Medicare and Medicaid Guide 39,581 (CCH 1992-1) (wherein HCFA admits that it is "not terminating problem hospitals from the Medicare program as required by regulation" and, thus, that "the credibility of its primary enforcement tool--the threat of termination from the Medicare program--is substantially diminished.")

(9) The limitation of the private action to the hospital confused at least one federal court in the early years of EMTALA. See Sorrells v. Babcock & Swedish American Hospital, 733 F. Supp. 1189 (N.D. Ill. 1990) (denying an individual physician's motion to dismiss the EMTALA claim as against him). Sorrells is not followed. Compare Eberhardt v. City of Los Angeles, 62 F.3d 1253, 1256 (9th Cir. 1995); Baber v. Hospital Corp. of America, 977 F.2d 872 (4th Cir. 1992); Holcomb v. Monahan, 807 F. Supp. 1526 (M.D. Ala. 1992); Urban v. King, 783 F. Supp. 560 (D. Kan. 1992).

(10) 62 Fed. Reg. 15593.

(11) 982 F. 2d at 231.

(12) Id. at 233.

(13) This is the interpretation given the statute by the Agency for Health Care Administration. Agency for Health Care Ad ministration vs. Madison County Health Systems, Inc., AHCA 96-13-SOLC.

(14) See, e.g., Power v. Arlington Hosp. Ass'n, 42 F.3d 851, 857 (4th Cir. 1994); Cooper v. Gulf Breeze Hosp., 839 F. Supp. 1538, 1543 (N.D. Fla. 1993); Collins v. DePaul Hosp., 963 F.2d 303, 308 (10th Cir. 1992); Brooker v. Desert Hosp. Corp:, 947 F.2d 412, 414 (9th Cir. 1991); Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1040 (D.C. Cir. 1991). The foregoing cases represent what came to be the majority view. Contra, see, Roberts v. Galen of Virginia, Inc. 111 F.3d 405,409 (6th Cir. 1997); Cleland v. Bronson Health Care Group, 917 F.2d 266 (6th Cir. 1990), Evitt v. University Heights Hosp., 727 F. Supp. 495 (S.D. Ind. 1989).

(15) See, e.g., Correa v. Hospital San Francisco, 69 F.3d 1184, 1192 (1st Cir. 1995); Brooks v. Maryland General Hosp., 996 F.2d 708, 713 (4th Cir. 1993), Baber v. Hospital Corp. of America, 977 F.2d 872, 879 (4th Cir. 1992); Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1041 (D.C. Cir. 1991); but see Ruiz v. Kepler, 832 F. Supp. 1444 (D. N.M. 1993).

(16) The Fourth Circuit, in the seminal "screening" case of Baber v. Hospital Corp. Of America, 977 F.2d 872, 881 (4th Cir. 1992), referred to a skull x-ray as in the category of "advanced tests" not necessarily required in the course of the "appropriate medical screening" therein found provided. The patient had suffered a fractured skull and later died, "apparently as the result of an intracerebrovascular rupture." 977 F.2d at 876.

(17) Ruiz v. Kepler, 832 F. Supp. 1444 (D. N. M. 1993), constitutes a rare judicial adventure into, ostensibly, "the capabilities of the emergency department." The Ruiz opinion is an interesting attempt to depart from Baber doctrine, but the court's analysis arguably is as much concerned with the capabilities of the attending physician as it is "the capabilities of the emergency department" and, thus, impermissibly judges a medical decision. 16

(18) Baber v. Hospital Corp. of America, 977 F.2d 872 (4th Cir. 1992); Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1041 (D.C. Cir. 1991); Lane v. Calhoun-Liberty County Hosp. Ass'n, 846 F. Supp. 1543, 1650 (N.D. Fla. 1994). The Sixth Circuit alone uses a "motive" test out of its stated belief that proof of disparate treatment in itself does not distinguish an EMTALA claim from a negligence or malpractice claim. See Roberts v. Galen of Virginia, Inc., 111 F.3d 405, 409 (6th Cir. 1997); Cleland v. Bronson Health Care Group, 917 F.2d 266 (6th Cir. 1990).

(19) Baber v. Hospital Corp. of America, 977 F.2d 872, 880 (4th Cir. 1992); see also endnote 9.

(20) See Griffith v. Mt. Carmel Med. Ctr., 842 F. Supp. 1359, 1365 (D. Kan. 1994) ("An EMTALA plaintiff's claim does not rest on any proof that the hospital was negligent; it is predicated on the hospital's violation of a federal statute making the hospital strictly liable for any 'personal harm' that 'directly results' from that violation.").

(21) See, e.g., Brooker v. Desert Hosp. Corp., 947 F.2d 412 (9th Cir. 1991) (patient's admitting diagnosis was probable heart attack), Thornton v. Southwest Detroit Hosp., 895 F.2d 1131, 1134 (6th Cir. 1990) (patient suffered a stroke).

(22) See Baber v. Hospital Corp. of America, 977 F.2d 872 (4th Cir. 1992). The court justified the "actual knowledge" standard also upon the "plain language" of 42 U.S.C. [Section]1395dd(b)(1) ("the hospital determines that the individual has an emergency medical condition"). 977 F.2d at 883; citing, Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1041 (D.C. Cir. 1991); Cleland v. Bronson Health Care Group, 917 F.2d 266 (6th Cir. 1990); Thornton v. Southwest Detroit Hosp., 895 F.2d at 1134; Coleman v. McCurtain, 771 F. Supp. 343, 346 (E.D. Okla. 1991). See also Vickers v. Nash General Hosp., 78 F.3d 139, 145 (4th Cir. 1996), Eberhardt v. City of Los Angeles, 62 F.3d 1253 (9th Cir. 1995); Holcomb v. Humana Medical Corp., 831 F. Supp. 829 (M.D. Ala. 1993), aff'd, 30 F.3d 116 (11th Cir. 1994); Anadumaka v. Edgewater Operating Co., 823 F. Supp. 507 (N.D. Ill. 1993).

(23) See Holcomb v. Monahan, 30 F.3d 116 (11th Cir. 1994).

(24) See generally, Matter of Baby K, 16 F.3d 590 (4th Cir. 1994). In Baby K, the Fourth Circuit went out of its way to distinguish its prior decision in Baber and to set apart the obligation "to stabilize" an "emergency medical condition" from the obligation to provide "an appropriate medical screening."

(25) Matter of Baby K, 16 F.3d at 595. "[T]o stabilize" is defined at 42 U.S.C. [Section]1395dd(e)(3)(A) in pertinent part as "to provide such medical treatment of the [emergency medical] condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility"

(26) Matter of Baby K, 16 F.3d at 596 (finding no "Congressional intent to create an exception to the duty to provide stabilizing treatment when the required treatment would exceed the prevailing standard of medical care").

(27) See Roberts v. Galen of Virginia, Inc., 111 F.3d 405 (6th Cir. 1997); Cleland v. Bronson Health Care Group, 917 F.2d 266 (6th Cir. 1990). The Roberts case states in a footnote that the Sixth Circuit does not follow Matter of Baby K, 111 F.3d at 410.

(28) Roberts, 111 F.3d at 411.

(29) In Holcomb v. Monahan, 30 F.3d 116 (11th Cir. 1994), the 11th Circuit cited the Fourth Circuit's decision in Baber v. Hospital Corporation of America, 977 F.2d 972, which may be some indication of whether the 11th Circuit would follow the Fourth in a case where stabilization was directly in issue.

(30) Brooker v. Desert Hosp. Corp., 947 F.2d 412 (9th Cir. 1991) (holding inter alia that, despite the patient's critical condition throughout, the patient was stabilized prior to transfer).

(31) See, e.g., Owens v. Nacogdoches County Hosp. Dist., 741 F. Supp. 1269 (E.D.Tex. 1990) (where physician did not call receiving facility to alert facility that 16-year-old patient in labor was en route, did not write a transfer memo, did not provide any medical treatment to minimize risks to mother and unborn child, did not provide an ambulance and crew, and did not provide receiving facility with patient's records, the court held that transfer was illegal under EMTALA).

(32) See Burditt v. Department of Health & Human Serv., 934 F.2d 1362 (5th Cir. 1991). Burditt is a civil money penalty case involving only the physician and finding a violation. However, the Fifth Circuit gives good indication that the hospital does not violate EMTALA as long as the physician certification for the transfer is truthful and the other components of an "appropriate transfer" are present. The opinion states in pertinent part as follows: "Whether a reasonable physician would have considered different medical factors . . . need not be considered in determining whether a hospital has violated 42 U.S.C. Section 1395dd(c)(1)(A)(ii). The signer need not be correct in making a certification decision." 934 F.2d At 1371.

Richard M. Ellis is a senior attorney for the Agency for Health Care Administration, Office of the General Counsel. Mr. Ellis is primarily involved in matters of health facility regulation. He received his B.A. from the University of Florida in 1983 and his J.D. from New York Law School in 1989.