ER Pt. Subjected to 7 Hours of `Benign Neglect' Before Death.

CASE ON POINT: Harry v. Marchant, 2001 WL 23199 So.2d -- FL

ISSUE: EMTALA should not be utilized as a conduit through which patients bring medical malpractice suits against hospitals and/or physicians. However in this extraordinary federal case, a patient was allowed to languish in a hospital's emergency room for approximately seven hours before treatment. The patient died shortly after treatment began.

CASE FACTS: Lisa Normil was brought to Aventura Hospital's emergency room on November 26, 1997, at approximately 1:17 a.m., by Miami-Dade Fire Rescue. She was seen in the emergency room by Dr. Wayne Marchant, who diagnosed the patient as suffering from pneumonia and possible sepsis or pulmonary embolism. Dr. Marchant contacted Dr. Kevin Coy the on-call attending physician, to report the patient's diagnosis and to request permission to admit her to the intensive care unit (ICU). Dr. Coy did not immediately authorized the patient's admission but instead directed Dr. Marchant to "obtain a ventilation perfusion scan (VQ scan). The VQ scan was not performed, allegedly because the hospital had run out of isotopes necessary to perform the scan. Despite the hospital's inability to perform the VQ scan, Dr. Marchant did not arrange to have the patient transferred to another facility. Dr. Marchant contacted Dr. Ali Bazzi, the patient's primary care physician. However, Dr. Bazzi did not see the patient until approximately five hours later, while the patient was still in the emergency room. Subsequently, the patient was admitted to the ICU. At that time, the patient had been in the emergency department for more than seven hours! Although antibiotics had been prescribed, the patient did not receive any while in the ICU. Sometime after her admission to the ICU, the patient lapsed into respiratory and cardiac failure. Dr. Hanner, another emergency department physician, responded to a "Code Blue" in an untimely manner and failed to properly manage resuscitation efforts. Resuscitation was unsuccessful. The patient died in the ICU on November 27, 1997. Bernie Harry filed suit against Drs. Marchant and Bazzi and the hospital alleging that they had caused and/or contributed to the patient's death. The defendants moved to dismiss. The United States District Court for the Southern District of Florida dismissed the claims brought under EMTALA. The plaintiff appealed.

COURT'S OPINION: The United States Court of Appeals, Eleventh Circuit, affirmed the judgment of the lower court in part and reversed it in part. The court held, inter alia, that the United States District Court's ruling with the respect to the EMTALA claim should be affirmed. However, the court ruled that the lower court's ruling with a respect to the plaintiff's other claims should be reversed and remanded. The court did find that under any reasonable reading of EMTALA, the hospital's duty to stabilize the patient "arises once the hospital determines that an emergency condition exists. The court reviewed various requirements imposed upon hospitals under EMTALA. The court did not scrutinize the failure of the individual physicians to respond appropriately to the critical need for emergency care evidenced by the patient. The court rejected the plaintiff's assertion that the District Court erroneously ruled that his complaint failed to state a cause of action for violation of EMTALA.

LEGAL COMMENTARY: It is almost inconceivable that any hospital worthy of the name would hold a patient under the circumstances in this case for approximately seven hours before any meaningful treatment was provided. Although it is well recognized that the federal EMTALA law is to not to be construed as a conduit for facilitating suits for medical malpractice against either hospitals or physicians, it staggers the imagination to conclude reading this case without finding one reference to the horrendous care, or lack of care, provided by the physicians charged with responsibility for caking for this unfortunate emergency room patient. Once it was ascertained that the hospital did not have the facilities to provide appropriate care, a decision should have been made to arrange for appropriate transfer to a facility having the necessary facilities to care for the patient. There is no reference to what, if any action, was brought against Dr. Marchant. Under no circumstances should the public be expected to tolerate such indifference. To characterize the treatment afforded the unfortunate patient as "benign neglect" would be an understatement! Hospitals should have protocols in place to ensure that no patient is allowed to languish without appropriate treatment and/ or transfer to a hospital having the necessary facilities to treat the patient.

A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for nearly 40 years, he concentrates in health care law with the Providence, R.I., firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers and Marquis Who's Who in American Law.