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].”
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