First Circuit Holds That Diversion of Nonhospital-Owned Ambulance Can Violate EMTALA

30 April 2008 Publication
Authors: Shirley P. Morrigan J. Mark Waxman

Legal News Alert: Health Care

The United States Court of Appeals for the First Circuit has held that a hospital can violate the Emergency Medical Treatment and Active Labor Act (EMTALA) when it diverts a nonhospital-owned ambulance en route to the facility to another hospital without being on formal diversionary status. Although the United States Court of Appeals for the Ninth Circuit issued a similar ruling in 2001, both decisions appear to conflict with the plain meaning of the EMTALA regulations, which states that a nonhospital-owned ambulance does not become subject to EMTALA until it arrives on hospital property.

EMTALA requires a hospital to provide (1) a medical screening examination to determine whether a patient has an emergency medical condition; and (2) any necessary treatment within its capacity required to stabilize that condition for any patient who “comes to the emergency department.” In its April 18, 2008 decision in Carolina Morales v. Sociedad Espanola de Auxilio Mutuo y Beneficencia (Morales), the First Circuit held that “an individual can ‘come to’ the emergency department for EMTALA purposes, without physically arriving on the hospital’s grounds, as long as the individual is en route to the hospital and the emergency department has been notified of her imminent arrival.” While the plain meaning of EMTALA regulations indicates that EMTALA applies to hospital-owned ambulances off hospital property under certain circumstances, the case is noteworthy because it is only the second decision to apply this rule to a nonhospital-owned ambulance.

The Morales case involved a plaintiff in Puerto Rico who was experiencing severe abdominal pain and vomiting for two days after being diagnosed with a non-viable ectopic pregnancy. Her coworkers called an ambulance, which began to transport her to the hospital where her obstetrician regularly practiced. While en route, the paramedics called ahead to the emergency department and notified the medical director of the patient’s condition, her forthcoming arrival, and need for treatment. In a subsequent conversation with the ambulance crew, the medical director inquired as to whether the patient had medical coverage and, upon receiving no assurance that this was the case, abruptly terminated the call. The paramedics interpreted this as a refusal to treat the patient and transported her to another hospital.

The patient ultimately sued the hospital alleging, among other matters, that the medical director’s diversion violated EMTALA. The hospital moved for summary judgment, claiming that EMTALA does not apply to a patient in a nonhospital-owned ambulance that has not yet arrived on the hospital premises. The district court in Puerto Rico agreed and granted summary judgment.

The Court’s Decision
The First Circuit reversed. It found the statutory and regulatory language of EMTALA to be ambiguous, which opened the door to the use of legislative intent and history as an aid in its interpretation. The critical language found in the EMTALA regulations states specifically that “[a]n individual in a nonhospital-owned ambulance off hospital property is not considered to have come to the hospital’s emergency department, even if a member of the ambulance staff contacts the hospital by telephone or telemetry and informs the hospital that they want to transport the individual to the hospital for examination and treatment.” The next sentence states that “[t]he hospital may direct the ambulance to another facility if it is in ‘diversionary status,’ that is, it does not have the staff or facilities to accept any additional emergency patients.”

The court found that these two sentences created an ambiguity. Although the first sentence suggests that a hospital has no EMTALA obligations with respect to a nonhospital-owned ambulance en route, the second sentence can be read as indicating that a hospital that is not on formal diversionary status violates EMTALA if it diverts a nonhospital-owned ambulance to another facility. The court resolved the ambiguity by noting that Congress’ intent in enacting EMTALA was to preclude hospitals from turning individuals away based upon the lack of insurance, or similar factors. The court observed that “[i]f a hospital were allowed to turn away an individual while she was en route to the hospital under these facts, an uninsured or financially strapped person could be bounced around like a ping pong ball in search of a willing provider. That result would be antithetic to the core policy on which EMTALA is based.” To effectuate this perceived congressional intent, the court interpreted the phrase “comes to the emergency department” as including a situation in which a patient is moving toward a hospital.

The impact of the court’s decision is unclear, but may be limited. The decision follows a precedent set in 2001 by the Ninth Circuit Court of Appeals, Arrington v. Wong (Arrington). Most EMTALA experts thought at the time that the Arrington decision was wrongly decided and believe the First Circuit has now compounded the error. However, regardless of whether it is correct, the Morales decision is binding on the trial courts in the First Circuit, which includes Maine, Massachusetts, Rhode Island, New Hampshire, and Puerto Rico. This will expose hospitals sued under EMTALA in those jurisdictions to potential liability for diverting ambulances when they are not formally on diversionary status due to lack of beds or staff. Hospitals in the nine states and two territories that comprise the Ninth Circuit1 have had similar exposure since Arrington was decided seven years ago.

In addition to liability to injured patients, an EMTALA violation is grounds for exclusion from Medicare by the Centers for Medicare & Medicaid Services (CMS) and fines of up to $50,000 per violation by the Office of Inspector General of the U.S. Department of Health and Human Services (OIG). However, there is no evidence these agencies have followed the Arrington case in their survey and enforcement activities. Moreover, in the preamble to a 2003 final rule making certain changes in the EMTALA regulations, two years after Arrington, CMS agreed with a comment that “hospitals have no EMTALA obligation with respect to individuals who are in ambulances that are neither hospital-owned and operated nor on hospital property.” Since it declined to do so after Arrington, it seems doubtful that CMS will change its interpretation following Morales. Therefore, administrative enforcement arising from diversions of nonhospital-owned ambulances appears to be unlikely.

What to Do Now
Although they technically are binding only within their own jurisdictions, the Morales and Arrington cases create some uncertainty regarding how courts in other jurisdictions will apply EMTALA to nonhospital-owned ambulances diverted en route to an emergency department, especially if the reason is economic. To address this uncertainty, hospitals in other jurisdictions as well as the First and Ninth Circuits, should make sure their policies carefully address the diversion of nonhospital-owned ambulances. Among other things, such policies should assure that: (1) formal diversionary status is declared appropriately and documented when justified due to lack of personnel, beds, or equipment; and (2) any diversions that occur when the facility is not on formal diversionary status are reasonable, appropriate, and compliant with local laws and protocols.

1 The Ninth Circuit includes the states of Hawaii, California, Washington, Oregon, Montana, Idaho, Arizona, Nevada, and Alaska as well as the territories of Guam and the Northern Mariana Islands.

Legal News Alert is part of our ongoing commitment to providing up-to-the minute information about pressing concerns or industry issues affecting our health care clients and colleagues. If you have any questions about this alert or would like to discuss this topic further, please contact your Foley attorney or any of the following individuals: 

Michael Scarano
San Diego/San Diego, California

Shirley P. Morrigan
Los Angeles, California

Lisa J. Acevedo
Chicago, Illinois

J. Mark Waxman
Boston, Massachusetts


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