Appendix ‘A’
PATIENT DUMPING-
WHAT IS THE LEGAL
REMEDY?
Submitted by :-
Shubham Jain
Division A Roll No 16 Class BBA.LLB of
Symbiosis Law School, NOIDA
Symbiosis International University, PUNE
In
June, 2011
Under the guidance of
Dr. C. J. Rawandale
Director
Symbiosis Law School, Noida
Appendix ‘B’
C E R T I F I C A T E
The project entitled “Patient Dumping-What is the legal remedy?” submitted
to the Symbiosis Law School, NOIDA for Law of Torts, MV Accident and Consumer
Protection Laws II as part of Internal assessment is based on my original work
carried out under the guidance of Dr. C. J. Rawandale from 25 April,2011 to 22
June,2011. The research work has not been submitted elsewhere for award of any
degree.
The material borrowed from other sources and incorporated in the thesis has been duly acknowledged.
I understand that I myself could be held responsible and accountable for plagiarism, if any, detected later on.
Signature of the candidate
Date:
ACKNOWLEDGEMENT
It is a great pleasure for me to put on records my appreciation
and gratitude towards Dr. C. J. Rawandale, Director for his
immense support and encouragement all through the preparation
of this report. I would again like to thank my faculty
Dr.C.J.RAWANDALE (Project Guide) for his valuable support and
suggestions for the improvement and editing of this project
report. Last but not the least, I would like to thank all the friends
and others who directly or indirectly helped me in completing my
project report.
Date- June 24,2011 Shubham Jain
Roll no- 16
Appendix ‘C’
Page 1 - Appendix ‘A’
Page 2 - Certificate (Appendix ‘B’)
Page 3 - Acknowledgement
Page 4 - Index (Appendix ‘C’)
Page 5-6 - Patient Dumping-An Introduction
Page 6-7 - Need For Legal Remedy
Page 6-9 - Legal remedy
Page 10 - Cases INvolving
Page 11 - Recommendations
Page 11-12 - Conclusions
Page 13 - Appendix ‘D’
Patient Dumping
Patient Dumping : An Introduction
Although the main difficulty for patients in "right to refuse medical
treatment" cases is ending the medical care that they receive, there are
situations in which patients have difficulty gaining admittance to hospitals
to obtain medical care. Such examples of patient denial include: a man with
severe burns over ninety-five percent of his body who was refused
admittance at over forty hospitals with burn centers despite pleas for
admittance from the man’s personal physician; a man with a knife wedged
into his spine, and a woman entering labour with what was described as the
"highest blood pressure" that the doctor who refused to provide the woman
with care "had ever seen." The common thread in these "patient dumping"
situations is that none of these potential patients had medical insurance or
were otherwise patients who were unattractive to hospitals. Often known
as "demarketing of services" or as "management of patient mix," patient
dumping is the hospital practice of transferring or refusing to treat
individuals who are indigent or uninsured, or otherwise undesirable as
patients. Patient dumping has origins in the common law’s "no duty" rule,
which provides that hospitals are not required to treat all patients that seek
care, and in some cases, need not even specify a reason for rejecting the
patient.8 Hospitals often "dump" patients who arrive at hospital wards
without any health insurance, or because indigent patients’ only source of
insurance is Medicaid -- a program known among doctors to provide low
reimbursement payments to physicians, themselves. The frequency of
patient dumping in cases failing under the no duty rule was increased by
economic pressures placed upon hospitals over the
past decade.
“The premature discharge of Medicare or indigent patients from hospitals
for economic reasons”
Patient dumping represents a cold, unconscionable disregard for human
life. The act of patient dumping occurs when patients presenting in the
emergency department are denied emergency medical care or stabilizing
treatment based on economic or non-economic grounds, such as the
patient’s race, ethnicity, sexual orientation, or contraction of a socially
unacceptable disease.
Some of the Economic incentives for patient dumping typically revolve
around four aspects of healthcare and its administration:-
the increasing number of uninsured;
healthcare cost containment measures;
the common law no-duty rule;
and ineffective state statutory responses.
The general premise for the intentional tort of patient dumping is that one
who intentionally causes injury to another is subject to liability to the other
for that injury, if his conduct is without justification under the
circumstances. Increases in the number of uninsured individuals have
caused a significant strain on the ability of hospitals and physicians to
provide care to the indigent while remaining solvent. With an increase in
the number of uninsured individuals, there has been a documented
increase in the number of patients being dumped. The common law no-
duty rule also serves as a foundation for Patient dumping. Under the
common law, neither hospitals nor physicians have an affirmative duty to
treat patients; therefore, either hospital or physician, or both, may
acquiesce to economic pressure and refuse to treat individuals with
emergency medical conditions
Need for Legal Remedy
Patient Dumping is intentional, not based on negligence, and unrelated to
medical issues involving patient care. It exists in a zone outside the
practice of medicine and within the realm of discrimination. Accordingly, in
an attempt to right this civil wrong. There was a proposal for the courts to
recognize a new intentional tort of patient dumping as a state cause of
action. The recognition of such a tort be limited to circumstances where a
patient’s transfer is based solely on economic or non-economic, non-
medical discriminatory reasons resulting in patient harm and not where the
transfer is a part of a medical decision regarding patient care. Although one
intermediate state appellate court has recently attempted to sustain such a
cause of action, on review it was overturned with arguably sophistic
reasoning. Because there may be a reluctance to recognize a new
intentional tort as part of our already burdened legal system. This
addresses the need for and elements of a new cause of Action of Legal
Remedy for patient dumping.
Health care providers are not entirely to be blame for Patient Dumping.
Hospitals used to be able to support indigent care through “cost-shifting,”
charging more from those who could afford to pay to provide care to those
who could not. That scheme changed in the last decade as the number of
for-profit hospitals increased and the government and private industry
began in earnest to pursue containment of health care costs. Competitive
pressures slowly rendered the subsidy system less and less tenable. Even
voluntary, not-for-profit hospitals have felt the pressure to reduce costs.
Congress was concerned that hospitals were abandoning emergency care
patients as a cost-cutting measure, and knew that patient dumping
decreased the quality of care received by the dumped indigent or
uninsured patients. This decreased care ultimately led to higher morbidity
and mortality levels so Congress created EMTALA to provide adequate
emergency medical services to the indigent and uninsured who seek
emergency care.
The quandary of patient dumping is rooted in the facts that there are
millions of people in this world who are in need of health care with no
means of paying for it. The critical question becomes: “Who will pay?”
Someone must, and the choices are limited. Either the government,
through tax dollars, must foot the bill, or health care providers must
assume the burden themselves. One can condemn the insensitivity of the
statement that began this section, but cannot ignore the unfairness to
health care providers of attempting, in effect, to imposing national health
insurance. COBRA and other efforts are required for hospitals to treat
indigents will help, but effective treatment of patient dumping cannot occur
until a method is devised for adequately compensating those who provide
health care to indigents. Thus it was realized that there was a great need to
control the incidence of patient dumping.
Legal Remedy
Any proposed solution for patient dumping requires an understanding of
the basis for its existence. This understanding comes from considering the
incentives for, epidemiology of, congressional concerns about, and
persistence of patient dumping.
In 1856 Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA)
came into law. COBRA contained a Medicare and Medicaid amendment now
commonly known as EMTALA. It was enacted during an era of escalation in
the number of uninsured patients that paralleled increasing reports of
“patient dumping. “Some emergency physicians and hospitals had
reportedly denied emergency medical care to indigent and uninsured
patients or transferred them to a public or charity hospital without first
stabilizing their emergency medical condition. Frequently, the transferred
patients had medical or surgical conditions which rendered them unstable
or critically ill, or were pregnant and in labor. EMTALA requires that
hospitals conduct a “medical screening examination” and provide
“necessary stabilizing treatment” to any patient seeking emergency
medical care in a hospital emergency department. The examination’s
purpose is to determine whether the person suffers from an “emergency
medical condition.” If an individual suffers from such a condition, either
necessary emergency stabilizing care must be provided or the patient must
be transferred in accordance with EMTALA provisions. It is defined in the
EMTALA that when an individual at a hospital has an unstabilized
emergency medical condition, as defined by the statute, the hospital may
not transfer the individual unless a physician has signed a legal
certification. The legal certification indicates that “based upon the
information available at the time of transfer, the medical benefits
reasonably expected from the provision of appropriate medical treatment
at another medical facility outweigh the increased risks to the individual
and, in the case of labor, to the unborn child. This legal certification process
implies that the transferring emergency physician believes that the
receiving facility has the necessary resources, capabilities, and expertise to
stabilize the patient’s emergency medical condition. The legal certification
must weigh not merely mention, the medical risks and benefits associated
with the transfer of the unstable patient.
Civil monetary penalties
EMTALA empowers the DHHS, upon the authorization of the Attorney
General of the United States, to initiate administrative proceedings
for civil penalties against hospitals and physicians that negligently
violate EMTALA. EMTALA specifically states that “[a] participating
hospital that negligently violates a requirement of [EMTALA] is
subject to a civil money penalty of not more than $50,000 for each
such violation. The aggrieved hospital or physician has a right of
appeal to the Court of Appeals.
Additionally, EMTALA provides that physicians who examine or
transfer a patient and who “negligently” violate a requirement of
EMTALA are also subject to civil monetary penalties.
Civil enforcement
Under EMTALA civil enforcement, if a patient suffers harm because a
hospital violated EMTALA requirements, that patient can sue the
hospital for damages under the personal injury law of that state or
seek equitable relief. There is no corresponding EMTALA civil
enforcement provision under which an individual who suffers personal
harm may directly proceed in a civil action against an emergency
physician.
When a medical facility suffers financial loss, relief is also available.
Under either circumstance, whether a suit by a person harmed or by
a medical facility, no action may be brought more than two years
after the date of the violation.
Cases involving
Bryan v/s. Rectors & Visitors of the University of Virginia Medical
Center.
In this case the the court identified a hospital’s obligation under
EMTALA as pertaining to “immediate, emergency stabilizing
treatment,” rather than having to provide treatment indefinitely.
Thus, the court narrowly interpreted the scope of the temporal
duration of the EMTALA obligation by declaring that “the stabilization
requirement was intended to regulate the hospitals care of the
patient only in the immediate aftermath of the act of admitting a
patient for emergency treatment.”
Hussain v. Kaiser Foundation Health Plan of the Mid-Atlantic State.
Eastern District of Virginia, relying on explained that the statutory
language clearly refers back to the emergency medical condition
“observed upon the patient’s initial appearance at the hospital’s
emergency department. “Accordingly, the court noted that “neither
in its text nor its avowed purpose does EMTALA reach into the
hospital room of a patient admitted for several hours to redress the
failure of hospitals to follow standard medical procedures in
connection with in-patient hospital treatment.
Lopez-Soto v. Hawayek.
The court held that EMTALA “unambiguously imposes “certain duties
in the emergency care of an individual “regardless of how that person
enters the institution or where within the walls he may be when the
hospital identifies the problem.”
Further, the court explained that nothing in the provisions of EMTALA
suggests a “necessary relationship” between a hospital’s obligations
and the identity of the department within the hospital to which the
afflicted individual presents himself.
Recommandations
Over the past sixteen years, numerous suggestions have been made to
resurrect the sloppy EMTALA legislation to curb the rise of patient dumping.
Some have suggested even more federal legislation. Others have
suggested segmental statutory resurrection by either including new
phrases, providing definitions for clarity, including the language of tort, or
even by having Congress attempt to repair curatively the mis-match
between its original congressional intent and the final statutory language.
Some have suggested criminal action against hospitals, physicians, and
nurses. Although complex, our solution is the creation of a new state cause
of action: the intentional tort of patient dumping.
The intentional tort of patient dumping is based in public policy, although
influenced by antecedents in the law of contract, medical malpractice tort,
the constitutional right to be free from discrimination, and the federal
statutory right to emergency medical care. Clearly, however, although
influenced by other bodies of law, the true nature of patient dumping has
not been duly recognized by contract, tort, constitutional or federal law.
Thus, without duly recognizing the nature of the act and harm of patient
dumping, current law does not fit the circumstances of patient dumping
and therefore is unable to provide proper redress. And, notwithstanding
influences from other branches of law, because the nature and harm of
patient dumping remains unredressed, it continues to grow and cause harm
to thousands of unsuspecting individuals at their moments of greatest need
and reliance upon those expert in emergency care.
Conclusion
Lastly, we define the nature and act of patient dumping as completely
distinct from a patient’s medical care or medical transfer decision. That is,
it is an intentional act of depriving a person of emergency medical care not
based upon any medical reason, but rather based on discrimination; either
economic or noneconomic non-medical grounds. Accordingly, we anticipate
that its use will be strictly reserved for application to patient transfers that
are the result of shameful acts of discrimination. Patient dumping is a
dangerous but predictable accompaniment to the market-driven health
care system in the richest nation in the world. As there is little incentive for
compliance with EMTALA, some healthcare professionals and facilities have
disregarded their obligations and engaged in patient dumping, on the basis
of purely economic or non-economic, non-medical discriminatory grounds,
without apparent fear of punishment. Indeed, no measure in law currently
exists to provide punitive measures for patient dumping. As state
regulatory and federal legislation have been unsuccessful in their attempt
to thwart patient dumping, and because the federal government simply
cannot regulate patient transfers in distant emergency departments, we
believe it is time for state courts to recognize the intentional tort of patient
dumping and place civil actions in the hands of the victims, rather than in
the hands of a federal prosecutor. Because such a cause of action
recognizes that patient dumping is intentional, not negligence based, and
occurs in a zone outside the practice of medicine and professional medical
care decision making, it should sound in intentional tort. Accordingly, an
intentional tort of patient dumping would have a strong and beneficial
effect on the attention and care provided those who present to emergency
departments with emergency medical conditions. Finally, justice requires
that the on-going harm caused by patient dumping be properly redressed.
Appendix ‘D’
I. Books Referred
1. THOMAS A. GIONIS,CARLOS A. CAMARGO, and ANTHONY S. ZIT,The intentional tort of patient dumping: a new state cause of action to address the shortcomings of the federal emergency medical treatment and active labour act (EMTALA)
II. Websites referred
1. www.ssrn.com 2. www.emraldinsight.com
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