humani nil a me alienum puto

random rants about news, the law, healthcare law, economics and anything I find amusing

H1N1, CDC, CMS and EMTALA

In a follow-up to previous posts (here, here) on H1N1, I’m catching up on reading from this week and I must have missed the White House’s report on possible effects of a resurgence of the swine flu pandemic this fall and winter.   I read through the report and it is eye opening, although not as dire as some possible scenarios presented by at least some for a pandemic avian flu.  According to the White House advisory panel report a possible scenario would:

•produce infection of 30–50% of the U.S. population this fall and winter, with symptoms in approximately 20–40% of the population (60–120 million people), more than half of whom would seek medical attention.
•lead to as many as 1.8 million U.S. hospital admissions during the epidemic, with up to 300,000 patients requiring care in intensive care units (ICUs). Importantly, these very ill patients could occupy 50–100 percent of all ICU beds in affected regions of the country at the peak of the epidemic and could place enormous stress on ICU units, which normally operate close to capacity.
•cause between 30,000 and 90,000 deaths in the United States, concentrated among children
and young adults. In contrast, the 30,000–40,000 annual deaths typically associated with seasonal flu in the United States occur mainly among people over 65. As a result, 2009-H1N1 would lead to many more years of life lost.
•pose especially high risks for individuals with certain pre-existing conditions, including pregnant women and patients with neurological disorders or respiratory impairment, diabetes, or severe obesity and possibly for certain populations, such as Native Americans.

The NY Times later reported that the CDC had indicated that this was not a “likely scenario,” which may be reassuring.

Also of note, The Centers for Medicare & Medicaid Services  issued a memo and fact sheet clarifying permissible options under the Emergency Medical Treatment and Labor Act for hospitals handling a surge in patients with swine flu.  The fact sheet discusses options for hospitals experiencing surges with and without a declared ‘waiver’ of EMTALA (requiring presidential emergency declaration and certain other actions), including out of department medical screening exams and off-campus flu screening centers.

PCAST_H1N1_Report.pdf (application/pdf Object).

Filed under: Health Law, Public Health, , , ,

The New Tarasoff? 6th Circuit OKs Hospital Suit Over Ax-Wielding Ex-Patient | ABA Journal – Law News Now

In Moses v. Providence Hospital and Medical Ctrs the Sixth Circuit federal court of appeals finds that the Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C. § 1395dd gives hospitals a duty to third parties concerning patients that are admitted and then not appropriately treated and stabilized for a mental illness who later go on to harm the third party.  In Moses, a husband presents to the hospital emergency room with his wife, having severe headaches, muscle soreness, high blood pressure, vomiting, slurred speech, disorientation, hallucinations and delusions.  According to his wife he is demonstrating threatening behavior.  The man is clearly screened, although there is a dispute as to whether the physician involved concluded that the husband had an emergency medical condition.   He was admitted for testing and observation.  He was discharged four days later.  There is some evidence in the record that he was to be admitted to the psych unit, although other evidence suggest he had medically stabilized and desired to leave, although the wife was still afraid of him.  The husband, ten days after his discharge, killed his wife.

The defendant hospital’s case is dismissed in summary judgment at the district level.  The hospital contends that (1) the defendant lacked standing because only the individual patient who seeks treatment at the hospital has standing under EMTALA; and (2) that EMTALA imposes no further obligation on a hospital once the hospital has admitted a person as an inpatient.

The court, discounting some legislative history as not controling, and other judicial decisions that have held that relatives of individuals do not have standing, says that a plain reading of the statute requires that any individual who suffered an actual personal injury due to the EMTALA violation may bring a claim against the hospital.  Because this is a third party that suffered actual person injury by the hospital’s allged injury, the court did not think that Zeigler v. Elmore County Health Care Auth., 56 F. Supp. 2d 1324 (M.D. Ala. 1999) (looking to the legislative history of EMTALA, holding that a mother cannot maintain an EMTALA action for a violation related to her daughter’s medical condition) was on point.  The court acknowledges that “our interpretation of the civil enforcement provision may have consequences for hospitals that Congress may or may not have considered or intended. However, our duty is only to read the statute as it is written, as we have in our past analysis of EMTALA.”

The court also holds that the hospital’s obligations do not end upon admission of the patient as an inpatient.  This can be a thorny issue for hospital, but most hoped with the Centers for Medicare and Medicaid Services (“CMS”) new rules,  a hospital’s EMTALA obligations upon admitting an individual as an inpatient. 42 C.F.R. § 489.24(d)(2)(i).  The Moses court acknowledges that the rules state that “[i]f a hospital has screened an individual under paragraph (a) of this section and found the individual to have an emergency medical condition, and admits that individual as an inpatient in good faith in order to stabilize the emergency medical condition, the hospital has satisfied its special responsibilities under this section with respect to that individual.”  But the Moses court finds that this does not support the summary judgement because it was (1) enacted after the cause of action accruing in this case, and, more importantly (2) “[t]he CMS rule appears contrary to EMTALA’s plain language, which requires a hospital to ‘provide . . . for such further medical examination and such treatment as may be required to stabilize the medical condition[.]'”  The court pretty much lays down the gauntlet to hospitals: “a hospital may not release a patient with an emergency medical condition without first determining that the patient has actually stabilized, even if the hospital properly admitted the patient.”

This is a particularly remarkable case.  The allusions to the famous Tarasoff case may be overly broad — but I am sure there will be much more written about it.

Filed under: CMP, EMTALA, Health Law, , , ,

CMS Summarizes Final Revisions To EMTALA Including Community Call Plan

As reported in the March 13, 2009 BNA Health Law Reporter, CMS has published a memorandum that provides a summary of its final 2009 revisions to EMTALA, and the memorandum contains information discussing the community call plan provisions of the Final Regulations. The memorandum and the interpretative guidelines in the State Operations Manual discussing the changes are available at http://www.cms.hhs.gov/SurveyCertificationGenInfo/downloads/SCLetter09-26.pdf.

Filed under: EMTALA, Health Law, ,

Heimlicher v. Steele, N.D. Iowa, No. C05-4054-PAZ

Health Law Reporter.  The March 13, 2009 Health Law Reporter reports Heimlicher v. Steele, N.D. Iowa, No. C05-4054-PAZ, 3/11/09, where a hospital and physician are found to violate EMTALA for the transfer of a woman in labor nearly 100 miles to another hospital in poor weather rather than perform an emergency c-section.  Award of $1.7 million

Filed under: EMTALA, Health Law, , ,

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