Overlooked Emergency Room Cause of Action Article
This article was written by Scott R. McMillen and first published in the Florida Bar Journal in November, 1997.
The Overlooked Emergency Room Cause of Action
Section 395.1041, Florida Statutes
Most Florida lawyers who handle medical malpractice cases probably have at least a general familiarity with a federal statute known as “EMTALA”, which is also known as the federal “anti-dumping” statute.1 Passed in 1986, it was initially intended to curtail the practice of hospital emergency rooms that were refusing to examine or treat indigent or uninsured patients, or that were inappropriately transferring them to other hospitals, i.e., “dumping” the patient. EMTALA requires hospitals to perform a screening examination of all patients who come to emergency rooms and if found to have a serious medical condition, they must be stabilized before discharge or transfer. It creates a private cause of action on behalf of “any individual” who suffers “personal harm” as a result of a hospital’s violation of these examination and stabilization requirements.2 Since its inception, plaintiffs’ lawyers have had limited success using EMTALA as a remedy for what might otherwise be considered a garden variety medical malpractice claim for misdiagnosis in an emergency room.3
Apparently overlooked by the plaintiffs’ bar,4 Florida passed its own version of EMTALA in 1988, when it enacted F.S. 395.1041.5 While the Florida Legislature borrowed some language from EMTALA, it also expanded the duties of emergency room health care providers and created a private cause of action that is broader in scope than the federal law. This article discusses possible uses of the remedy provisions of 395.1041, in cases where an emergency room physician inadequately examines a patient resulting in a misdiagnosis, leading to injury to the patient.
Section 395.1041 creates many duties, the most important of which is contained in 395.1041(3)(a), which states:
“Every general hospital which has an emergency department shall provide emergency services and care for any emergency medical condition when:
1. Any person requests emergency services and care; or
2. Emergency services and care are requested on behalf
of a person by:
(a) An emergency medical services provider who is rendering care to or transporting the person; or
(b) Another hospital, when such hospital is seeking a medically necessary transfer, except as otherwise
provided in this section.”
In short, if a person enters a general hospital6 which has an emergency department seeking medical care for an “emergency medical condition”, the hospital is required to provide “emergency services and care”. Hospitals are further required by the statute to ensure the provision of these services at all times, either directly, or through arrangements with one or more physicians.7
The terms “emergency medical condition” and “emergency services and care” are terms of art under the statute and are defined at the beginning of Chapter 395 as follows:
“395.002 Definitions. – – As used in this chapter:
(8) “Emergency medical condition” means:
(a) A medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following:
1. Serious jeopardy to patient health, including a pregnant woman or fetus.
2. Serious impairment to bodily functions.
3. Serious dysfunction of any bodily organ or part.
(9) “Emergency services and care” means medical screening, examination, and evaluation by a physician, or, to the extent permitted by applicable law, by other appropriate personnel under the supervision of a physician, to determine if an emergency medical condition exists and, if it does, the care, treatment, or surgery by a physician necessary to relieve or eliminate the emergency medical condition, within the service capability of the facility.”
The definition of an “emergency medical condition” was borrowed nearly verbatim from EMTALA,8 and the definition is broad enough that virtually any medical condition significant enough to be the basis of an emergency room malpractice claim should also fit under 395.1041. Certainly most emergency room malpractice claims involve allegations of either serious impairment to bodily functions or serious dysfunction of a bodily organ or part. If a claim does not have those features it probably is not economically reasonable to pursue.
The definition of the required “emergency services and care” in 395.1041 is also quite broad. While it is unclear if there is any real difference in the words “screening”, “examination”, and “evaluation”, it is clear that “emergency services and care” has two main components; (1) an attempt at diagnosis by some type of screening or medical work-up, and (2) treatment of any existing emergency medical condition, which is broad enough to include surgery, if required.9
In addition to setting out these duties of examination and treatment, 395.1041, like EMTALA, also expressly creates a statutory private right of action for any person harmed as a result of the failure to fulfill these obligations. Specifically, 395.1041(5)(b) states:
(b) Any person who suffers personal harm as a result of a violation of this section or the rules adopted hereunder may recover, in a civil action against the responsible hospital administrative or medical staff or personnel, damages, reasonable attorney’s fees, and other appropriate relief. However, this paragraph shall not be construed to create a cause of action beyond that recognized by this section and rules adopted under this section as they existed on April 1, 1992.10
Application to Malpractice Claim
In an often repeated malpractice case scenario, a patient comes into an emergency room complaining of significant chest and shoulder pain but after an examination is sent home with a diagnosis of indigestion and possible reflux. Three days later the patient is dead, with an autopsy finding of a three day old heart attack that would have been treatable with an earlier diagnosis. This patient certainly had an “emergency medical condition” (admittedly known only in hindsight), for which the patient sought treatment. It is also clear the patient did not receive a “medical screening, examination, and evaluation” to determine that this condition existed, nor did the patient receive the “care, treatment, or surgery necessary to relieve or eliminate the condition,” and this resulted in personal harm. What could be simpler?
But Malpractice Isn’t “Dumping”
Any attempt by a patient’s lawyer to combine a cause of action under 395.1041 with a garden variety emergency room malpractice claim will undoubtedly be met by numerous defenses. The first reaction will likely be an argument that 395.1041 was only intended by the Legislature to create a cause of action in those instances where the patient is discriminated against because the patient is indigent or uninsured. There is some indication in the legislative committee reports that treatment and transfer decisions based on economics were one of the Legislature’s primary concerns in enacting 395.1041.11 However, under applicable rules of statutory construction the court is not permitted to look outside the language of a statute for legislative intent, unless the court first finds the language of the statute to be ambiguous.12 Even if a court were to believe that the Legislature meant to say something else, rules of statutory construction would not allow the court to rewrite an otherwise unambiguous statute for the Legislature.13
Section 395.1041 contains no ambiguity as to its scope, and it does not mention the phrase “patient dumping” at all. The statute authorizes a civil cause of action to be brought by “any person” who has suffered “personal harm” as a result of a violation of the provisions of the statute. Neither the duty to examine, nor the duty to treat, is limited to poor or uninsured people. The language creating the private civil cause of action likewise contains no such words of limitation, although certainly economic discrimination would also be actionable if that were the reason for the failure to provide emergency care and services to someone with an emergency medical condition.
Regardless of any rules of statutory construction, the primary reason it would be inappropriate to look outside of the statute to decide what the Legislature had in mind, is that the statute itself contains direct expressions of the Legislature’s intentions, which even come with the label “legislative intent”. First, there is a specific reference to the legislative intent for all of Chapter 395, in 395.001 which states:
395.001 Legislative intent. – – It is the intent of the Legislature to provide for the protection of public health and safety in the establishment, construction, maintenance, and operation of hospitals and ambulatory surgical centers by providing for licensure of same and for the development, establishment, and enforcement of minimum standards with respect thereto.
This language evidences a broad legislative intent to protect the public health by establishing minimum standards in the operation of hospitals. Nothing in the statement of legislative intent restricts the application of these laws for the protection of the health of only the poor or uninsured. More importantly though, there is a statement of legislative intent specific to Section 395.1041. It is contained in the first sub-section and states:
395.1041 Access to emergency services and care.
(1) LEGISLATIVE INTENT. – – The Legislature finds and declares it to be of vital importance that emergency services and care be provided by hospitals and physicians to every person in need of such care. The Legislature finds that persons have been denied emergency services and care by hospitals. It is the intent of the Legislature that the agency vigorously enforce the ability of persons to receive all necessary and appropriate emergency services and care and that the agency act in a thorough and timely manner against hospitals and physicians which deny persons emergency services and care. It is further the intent of the Legislature that hospitals, emergency medical services providers, and other health care providers work together in their local communities to enter into agreements or arrangements to ensure access to emergency services and care. The Legislature further recognizes that appropriate emergency services and care often require follow-up consultation and treatment in order to effectively care for emergency medical conditions. [emphasis supplied]
This language states in plain words a legislative intent that “emergency services and care” be provided to “every person” in need of such care, not just every poor or uninsured person. If it was the Legislature’s intent to limit this section exclusively to indigent or uninsured persons, it easily could have said so by stating “The Legislature finds that people are being denied access to emergency care for financial reasons, and the intent of this statute is to prevent such conduct.”
Because of differences in the language of EMTALA and 395.1041, reliance on cases decided under the federal statute should be done cautiously. It must be pointed out, however, that even under EMTALA, every federal Circuit Court of Appeals to have addressed the issue has ruled that whether a patient is indigent or carries health insurance is immaterial when a patient brings a claim under the federal act; all patients are protected.14 These federal courts reached this conclusion because EMTALA in plain words creates a cause of action on behalf of “any individual”. Section 395.1041 creates a cause of action on behalf of “any person”. It is unlikely the state courts of Florida will read “any person” to mean “any person discriminated against on the basis of indigency or lack of insurance.”
Broader Than EMTALA
In responding to a cause of action under 395.1041, defense lawyers may also cite to a number of federal cases under EMTALA which suggest that EMTALA, while not requiring economic discrimination, nevertheless was never intended to be a substitute cause of action for a standard emergency room medical malpractice case.15 Some federal courts have stated that the EMTALA remedy is designed for situations in which the patient, for whatever reason, is not given the standard medical screening examination that the hospital routinely gives to all patients similarly situated.16 It is in this area that the most caution should be used in applying federal EMTALA decisions to the interpretation of 395.1041, because of the material differences in the description of the duties required by the two statutes.
As stated earlier, the Florida Legislature borrowed the definition of an “emergency medical condition” from the federal statute. Beyond that, the language of Florida’s statute departs considerably. In the first instance, EMTALA only requires “stabilization” of the emergency medical condition, or transfer to a facility better able to treat the patient. Rather than require only stabilization, the Florida Legislature went further by requiring what it calls “emergency services and care”, which it defined to include “care, treatment or surgery by a physician necessary to relieve or eliminate the emergency medical condition”.17 Arguably, this exceeds the duty of mere “stabilization”; it requires treatment to eliminate the problem.
But even if a court equated “stabilization” with “elimination” of the emergency condition, the statutes are different in a more significant way. The most important difference in the two statutes is in the description of when this duty either to stabilize or treat the patient arises. EMTALA states “if any individual (whether or not eligible for benefits under this title) comes to a hospital and the hospital determines that the individual has an emergency medical condition” [emphasis supplied], the hospital must either stabilize the patient or transfer the patient to a different facility.18 In other words, under the federal statute, this duty to stabilize (or transfer) only arises if the hospital first determines after examination that the patient does in fact have an “emergency medical condition”.
In stark contrast to EMTALA, the Florida statute contains no requirement that before treatment must be rendered the provider must actually make a diagnosis that the patient has an “emergency medical condition”. Instead, the Florida statute merely says that every hospital “shall provide emergency services and care for an emergency medical condition when any person requests emergency services and care.”19
On its face, this language appears to create strict liability on the part of the health care provider any time an “emergency medical condition” exists and is untreated, irrespective of whether the health care provider actually makes a diagnosis that an emergency medical condition does exist. While some plaintiffs may then argue 395.1041 creates strict liability for any failure to diagnose and treat an emergency medical condition, that is probably an unfair reading of 395.1041 as a whole. The parameters under which liability may attach against the provider are further clarified in sub-section (3)(g) of 395.1041, which adds:
(g) Neither the hospital nor its employees, nor any physician, dentist, or podiatrist shall be liable in any action arising out of a refusal to render emergency services or care if the refusal is made after screening, examining, and evaluating the patient, and is based on the determination, exercising reasonable care, that the person is not suffering from an emergency medical condition or a determination, exercising reasonable care, that the hospital does not have the service capability or is at service capacity to render those services.
In other words, under Florida’s statute, so long as the health care provider actually conducts the required “screening, examination, and evaluation” of the patient, and, using reasonable care, concludes there is no “emergency medical condition” (or if there is, it is beyond the service capability or capacity of the hospital to treat it), then there will be no civil liability for failure to treat. This exculpation from civil liability is a clear indication of the legislative intent as to when civil liability will be imposed. To state it affirmatively rather than negatively, liability is imposed under 395.1041 if a patient suffers personal harm because (1) the health care provider refuses to render any examination of the patient, or (2) the health care provider does conduct an examination, but falls below the standard of reasonable care in doing so, and for that reason fails to provide the necessary treatment for the condition. Returning to our scenario of the undiagnosed heart attack victim, if the reason the treatment was not provided for the emergency condition was because the physician failed to exercise reasonable care in conducting the examination, then liability should attach under 395.1041.
Possible Advantages of 395.1041
There is a long list of possible advantages to plaintiffs in bringing an emergency room malpractice case under 395.1041, or at least in pleading it with a cause of action for malpractice in a separate count. An immediately obvious benefit is that under 395.1041(5)(b) a prevailing patient has an entitlement to attorneys’ fees but a prevailing defendant does not.
Another probable benefit is the application of the four year statute of limitations for statutory causes of action. Section 95.11(4)(b) creates a two year statute of limitations for medical malpractice cases but specifically defines medical malpractice as claims “in tort or contract.”20 An action under 395.1041 is a statutory cause of action, not based on tort or contract, and will probably allow the plaintiff to use the four year statute of limitations available for statutory causes of action.21
In some situations in emergency room medical malpractice cases the conduct of the emergency medicine physician or nurse must reach the level of “reckless disregard” before a malpractice claim can be pursued.22 Section 395.1041 may overcome this limitation because it expressly creates liability if the health care provider fails to treat the emergency medical condition because his examination fell below standards of “reasonable care”.23
In negligence claims against emergency room physicians there also is a special statute requiring that expert witnesses have substantial experience working in an emergency room setting within the preceding five years.24 Query whether this limitation on experts applies to a statutory cause of action under 395.1041?
If some of these special rules for medical malpractice cases do not apply, then perhaps there is also no need to go through medical malpractice pre-suit screening25 for a claim under 395.1041. Not only would the plaintiff avoid the ninety day delay in getting his complaint filed in court, but if there is no pre-suit screening there would be no opportunity for a defendant to offer to arbitrate damages under F.S.766.106, or 766.207, and thereby unilaterally cap the plaintiff’s damages.26
Florida’s wrongful death statute discriminates against family members of certain medical malpractice victims. Under current law the adult children of unmarried decedents, and the parents of unmarried adult decedents, are denied recovery in death cases arising out of medical malpractice, but not in death cases arising out of any other type of tort.27 Florida’s Third District Court of Appeal recently held that damages in a federal EMTALA death action are limited to those amounts that could be recovered in a Florida medical malpractice wrongful death claim.28 The ruling was predicated on express language in the EMTALA statute limiting damages to “those damages available for personal injury under the law of the state where the hospital is located.”29 Since F.S. 395.1041 does not delineate the scope of damages recoverable, but states merely that “any individual who suffers personal harm may recover damages, reasonable attorneys’ fees, and other appropriate relief,” it is possible that the wrongful death malpractice damage limitations may be avoided if the claim is brought under F.S. 395.1041.
In an obstetrical case it may be that the no-fault remedies and immunities provided by NICA30 will not apply to a cause of action under 395.1041. Section 395.1041 specifically covers women in labor.31 On the other hand, the NICA statute says it excludes “all other rights and remedies at common law or otherwise.”32
Finally, perhaps of most interest to the plaintiffs’ bar is the possibility that with a pure statutory cause of action the concepts of comparative fault33 will be inapplicable. In some cases it would be a huge benefit to plaintiffs to avoid efforts by defendants to allocate fault to non-parties to the action.34
Once the plaintiffs bar fully awakens to the possibilities of a cause of action under 395.1041, it will undoubtedly be a number of years before many of these issues are resolved by the appellate courts. At the very least, 395.1041 adds the additional element of attorneys’ fees for a prevailing plaintiff, but not a prevailing defendant. That advantage alone should cause a significant increase in claims.
1. Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. 1395dd.
2. 42 U.S.C. 1395dd(d)(2).
3. See e.g., Vickers v. Nash General Hospital, Inc., 78 F.3d 139 (4th Cir. 1996).
4. There are no reported appellate decisions regarding any attempt by a patient to bring a claim under 395.1041. Within the last six months your author spoke about this statute at two large meetings of plaintiffs’ personal injury attorneys in Florida. A show of hands revealed no knowledge of such suits statewide, although a ready willingness to begin filing them.
5. Enacted in 1988 as 395.0142, it was renumbered 395.1041 in 1992.
6. The statutory definition of a general hospital is lengthy, but for our purpose can probably be summarized as an establishment offering acute care medical services for patient visits longer than 24 hours. See Fla. Stat. 395.002(10).
7. Fla. Stat. 395.1041(3)(d)(1).
8. 42 U.S.C. 1395dd(e)(1).
9. Fla. Stat. 395.002(9). The statute also includes an express legislative recognition that “appropriate emergency services and care often require follow-up consultation and treatment in order to effectively care for emergency medical conditions.” Fla. Stat. 395.1041(1).
10. Your author confesses to an inability to determine the meaning of the last sentence of this subsection. On its face it appears that the legislature wanted no future expansion of liability by the adoption of new administrative rules under the statute.
11. See Florida House of Representatives Health Care Committee, Final Staff Analysis and Economic Impact Statement, CS/SB 598 and House Bill 1615 (July 21, 1988).
12. Florida v. Egan, 287 So.2d 1, 3 (Fla. 1973) (“Where the legislative intent as evidenced by a statute is plain and unambiguous, then there is no necessity for any construction or interpretation of the statute, and the courts need only give effect to the plain meaning of its terms.”).
3. Van Pelt v. Hilyard, 78 So. 693, 694 (Fla. 1918) (“Even where a court is convinced the Legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity. If it has been passed improvidently the responsibility is with the Legislature and not the courts.”).
14. Gatewood v. Washington Health Care Corp., 933 F.2d 1037, 1040 (D.C. Cir. 1991) (“Though the Emergency Act’s legislative history reflects an unmistakable concern with the treatment of uninsured patients, the Act itself draws no distinction between persons with and without insurance. Rather, the Act’s plain language unambiguously extends its protection to ‘any individual’ who seeks emergency room assistance.”); Correa v. Hospital of San Francisco, 69 F.3d 1184, 1194 (1st Cir. 1995), cert. denied, 116 S. Ct. 1423 (1996) (“We hold, therefore, that EMTALA, by its terms, covers all patients who come to a hospital’s emergency department, and requires that they be appropriately screened, regardless of insurance status or ability to pay.”); Power v. Arlington Hospital Association, 42 F.3d 851, 858 (4th Cir. 1994) (“There is nothing in the statute itself that requires proof of indigence, inability to pay, or any other improper motive on the part of the hospital as a prerequisite to recovery. The language of subsection 1395dd(a) simply refers to ‘any individual’ who presents to the emergency room.”); Cleland v. Bronson Health Care Group, 917 F.2d 266, 269 (6th Cir. 1990) (“While the legislative history might be of assistance in interpreting ambiguous words or phrases of limitation, there are simply none in this language. The benefits and rights of the statute extend to ‘any individual’ who arrives at the hospital.”) Summers v. Baptist Medical Center, 91 F.3d 1132, 1137 (8th Cir. 1996) (“As we have previously indicated, no evidence of a purpose to ‘dump’ a patient is required. Nor does the statute require any other particular motivation. In this sense, the statute is as plaintiff argues, a strict liability provision. If a hospital fails to provide an appropriate medical screening examination, it is liable, no matter what the motivation was for this failure”); Collins v. DePaul Hospital, 963 F.2d 303, 308 (10th Cir. 1992). (“We do agree with counsel that the fact that [plaintiff] was non-indigent, i.e., he could and did pay his medical and hospital bills, does not defeat his [EMTALA] action. The fact that Congress, or some of its members, viewed [EMTALA] as a so-called ‘anti-dumping’ bill, i.e., a bill designed to prohibit hospitals from ‘dumping’ poor or uninsured patients in need of emergency care, does not subtract from its use of the broad term ‘any individual’.”).
15. See e.g., Summers v. Baptist Medical Center, supra.
16. See e.g., Cleland v. Bronson Health Care Group, Inc., supra.
17. Fla. Stat. 395.002(9).
18. 42 U.S.C. 1395dd(b)(1).
19. Fla. Stat. 395.1041(3)(a)(1).
20. Fla. Stat. 95.11(4)(b) states in part “an ‘action for medical malpractice” is defined as a claim in tort or contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care.”
21. Fla. Stat. 95.11(3)(f) provides for a four year statute of limitations for “an action founded on a statutory liability.” This four year period will only begin running when the last element of the cause of action occurs. Fla. Stat. 95.031(1). There is a four year statute of repose for medical malpractice cases, with the time commencing when the negligent act occurs. Fla. Stat. 95.11(4)(b). This has been held to bar a medical malpractice suit even when the last element of the cause of action, i.e., the damages, have not occurred until after the four years has run. See e.g., Damiano v. McDaniel, 689 So.2d 1059 (Fla. 1997). Query whether an emergency room malpractice victim can avoid the four year statute of repose by suing under 395.1041?
22. Fla. Stat. 768.13(2)(b).
23. Fla. Stat. 395.1041(3)(g).
24. Fla. Stat. 766.102(6).
25. See Fla. Stat. 766.106, et seq.
26. During medical malpractice pre-suit screening a defendant may offer to go to pre-suit binding arbitration. If plaintiff arbitrates, there are automatic caps on damages. If plaintiff declines to arbitrate after the offer is made, as a sanction for declining, other caps will be imposed on plaintiff’s damages at trial. Either way the defendant has the power to unilaterally cap damages merely by making the arbitration offer during the 90 day pre-suit screening period. See Fla. Stat. 766.209.
7. Fla. Stat. 768.21(8).
28. Diaz v CCHC-Golden Glades, Ltd., 696 So.2d 1346 (Fla. 3rd DCA 1997).
30. See Fla. Stat. 766.301 et seq.
31. The definition of an “emergency medical condition” expressly includes the prospect of jeopardy to the health of a pregnant woman or fetus, or when there is evidence of the onset of persistent uterine contractions or rupture of membranes. Fla. Stat. 395.002(8).
32. Fla. Stat. 766.303(2).
33. The general comparative fault statute states it applies “to negligence cases [which] includes, but is not limited to, civil actions for damages based upon theories of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty or like theories.” Fla. Stat.768.81(4)(a) . Special comparative fault statutes for teaching hospitals state they apply to actions “for damages for personal injury or wrongful death arising out of medical malpractice, whether in contract or tort.” See e.g. Fla. Stat. 766.112 and 768.81(6).
34. See Fabre v. Marin, 623 So.2d 1182 (Fla. 1993).
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