EMTALA and Patient Hoarding

By Jeremy Kreisberg

It is clear that EMTALA aims to prevent hospitals from dumping patients that require emergency care until these patients are stabilized.  But whether EMTALA also prevents hospitals from hoarding emergency patients to their detriment is far less clear.  Recently, the Tenth Circuit confronted this question in Genova v. Banner Health, a case concerning a physician who claims that he was fired for complaining about overcrowding at his emergency room.  The physician sought protection under EMTALA’s whistleblower provisions, which prevent hospitals from taking an “adverse action” against an employee simply because that employee “report[ed] a violation of a requirement of [EMTALA].”  Thus, the question for the Tenth Circuit was whether a hospital violates EMTALA if it has an overcrowded emergency room and refuses to offer a transfer to its waiting patients.  Writing for a unanimous panel, Judge Gorsuch held that there was no such violation.

As a matter of statutory purpose, the Tenth Circuit had a persuasive case.  After all, EMTALA is clearly intended to prevent hospitals from dumping its emergency patients onto other hospitals to avoid the costs of providing uncompensated care.  So when Dr. Genova complained about “patient hoarding” rather than “patient dumping,” the court cleverly stated that “[h]is complaint wasn’t about an EMTALA violation but more nearly its inverse.”  Indeed, there are serious potential issues with finding that EMTALA requires any overcrowded hospital to transfer its patients.  Such a rule might allow hospitals, which are often overcrowded, to use resource constraints as an excuse for transferring patients that require expensive care.

But the Tenth Circuit rested much of its case on the statutory text.  And as a matter of statutory interpretation, this issue is far from clear.  EMTALA states that a hospital which receives a patient “must provide for an appropriate medical screening examination within the capability of the hospital’s emergency department.”  If a patient has an “emergency medical condition,” the hospital must provide either (A) “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,” or (B) “for transfer of the individual to another medical facility in accordance with subsection (c) of [EMTALA].”

On first glance, this language seems to provide a guarantee to patients that they will receive either (A) treatment to the point of stabilization or (B) a transfer.  Therefore, insofar as a hospital does not have the resources to treat a patient, it would seem to logically follow that a hospital must then offer a transfer.  The Tenth Circuit disagreed, characterizing this language as “recogniz[ing] that sometimes a hospital simply cannot provide the treatment a patient needs: in those circumstances, the hospital must transfer the patient.”  The court is likely correct that this language is intended to guarantee a transfer for patients who arrive at hospitals that do not have the technical capacity to treat them.  After all, the statute provides no explicit guarantee of treatment within a reasonable time, and subsection (c) requires that a physician certify that the medical benefits of a transfer outweigh its increased risks.

But there is a plausible, broader reading that the court ignored.  If a hospital has wait-times such that it will be unable to provide “treatment as may be required to stabilize” some patients, is there any meaningful difference between that hospital and one that doesn’t have the technical capacity to provide treatment?  In either case, the patient does not receive care due to the resource constraints of the hospital.  And in that sense, the Tenth Circuit’s recognition that a hospital “must transfer” a patient if a hospital “simply cannot provide the treatment a patient needs” might apply with just as much force in hospitals without the ability to see all of its patients in a reasonable time as it does in hospitals that do not have the technical capacity to treat a given patient’s medical condition.

Drawing a line between excessive overcrowding and proper retention of emergency patients is certainly an extremely difficult task.  But it is not entirely clear that EMTALA allows hospitals to shirk this responsibility.

Hat-tip to HealthLawProf Blog for bringing this case to our attention.  See also Healthcare Employment Counsel.

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