Abstract

http://ssrn.com/abstract=1598443
 


 



Disentangling EMTALA from Medical Malpractice: Revising EMTALA’s Screening Standard to Differentiate between Ordinary Negligence and Discriminatory Denials of Care


Beverly Cohen


Albany Law School

2008

Tulane Law Review, Vol. 82, No. 645, 2008

Abstract:     
Congress’ intent in enacting the Emergency Medical Treatment and Active Labor Act (EMTALA) was to prohibit hospital emergency rooms from refusing to treat patients because they were unable to pay or due to other discriminatory reasons. EMTALA requires emergency departments to screen all patients who present for treatment and to stabilize or transfer those identified to be suffering from emergency conditions.

In practice, however, many of the EMTALA cases that have reached courts have been dismissed as being state law medical malpractice claims, not EMTALA. The confusion between EMTALA and medical malpractice resulted from an extremely vague statutory screening standard, requiring hospital emergency departments to render “an appropriate medical screening examination,” without defining what such a screening entailed.

As medical costs continue to escalate, and we grow more concerned about our ability to finance our medical care and to ensure access to the ever-growing numbers of uninsured, it becomes of paramount importance to utilize our healthcare dollars efficiently. A more tightly constructed EMTALA screening standard would do a better job of differentiating between EMTALA and medical malpractice, saving legal costs for claimants and hospitals and conserving judicial resources.

This article will review the historic problem of “patient dumping,” and how EMTALA was promulgated to cure the problem. It takes a detailed look at EMTALA’s exceedingly vague screening standard, and how the courts have transformed it into a more defined standard.
Nevertheless, the author points out how the currently accepted screening standard falls short. The author suggests a revised standard that will weed out negligence claims and restore EMTALA to its intended task - prohibiting hospital emergency rooms from refusing treatment for discriminatory reasons.

Number of Pages in PDF File: 48

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Date posted: May 2, 2010  

Suggested Citation

Cohen, Beverly, Disentangling EMTALA from Medical Malpractice: Revising EMTALA’s Screening Standard to Differentiate between Ordinary Negligence and Discriminatory Denials of Care (2008). Tulane Law Review, Vol. 82, No. 645, 2008. Available at SSRN: http://ssrn.com/abstract=1598443

Contact Information

Beverly Cohen (Contact Author)
Albany Law School ( email )
80 New Scotland Avenue
Albany, NY 12208
United States

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