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Re: EMTALAFrom: Efrain Ramirez (eramirezt@coqui.net)Tue Jul 26 17:29:12 2005
I should have posted this first..sorry.. ..."and 22 weeks is within the standard that most hospitals use for viability." Is that true??? wow! Ef By Stephen A. Frew JD Posted Thursday, July 14, 2005 Wisconsin Upholds EMTALA Duty In Delivery Room A hospital was obligated under federal law to do a medical screening examination on an infant born there despite doctors' belief that he was so premature he had no chance to survive, the Wiscon state Supreme Court ruled Wednesday, July 13, 2005. Shannon Preston sued Meriter Hospital in Madison because doctors refused to treat her infant son, who was only 1 pounds when he was born 17 weeks premature in 1999. Doctors believed his lungs were so underdeveloped that he would not survive regardless of what they did. Preston sued on several grounds, including her contention the hospital violated the federal Emergency Medical Treatment and Active Labor Act. The 1986 law requires a hospital with an emergency department to provide "an appropriate medical screening examination" to anyone who "comes to the emergency department" to be examined or treated. A circuit court ruled in the hospital's favor. The court of appeals ruled the federal requirement did not apply to the baby because he arrived through the birthing center, not the emergency room. But the Supreme Court reversed that decision. "The duty to provide a medical screening examination should not depend upon the hospital room - be it the emergency room, the birthing center, or an operating room - into which a baby is born," Justice David Prosser wrote for the majority. The decision is consistent with the US 1st Circuit Court of Appeals ruling in the Lopez-Soto case interpreting EMTALA. Decisions like this one are likely to force a confrontation with the courts following the US Supreme Court lead on EMTALA interpretation from the Roberts case and those seeking to limit the application of EMTALA to its "intent" not its literal language. CMS has opted to follow a modified "wait-and-see" set of rules somewhere between the two legal views in its most recent regulations by attempting to distinguish "inpatients" from EMTALA patients. This decision, however, has a patent logic to it that makes its argument compelling. When EMTALA talks about coming to the Emergency Department, CMS has always included OB as an emergency department area. The duty to provide care is on-going until the condition is stabilized. An OB patient is stabilized when the hospital has delivered baby and placenta, and the Defendant in this case wanted to say that the EMTALA duty stopped at that point and that the baby had not presented for EMTALA purposes. The definition of presenting, however, includes arrival on premises and someone asking for care. Clearly, the baby arrived on campus in the mother's womb and CMS has always considered the fetus a separate entity under the EMTALA law's clear language. So, whether the baby came in mother's arms or mother's womb, the baby arrived at the hospital. It is ludicrous to suggest that the mother asked for help for herself and NOT her baby. While the hospital argued that the infant was not viable, younger children do survive, and 22 weeks is within the standard that most hospitals use for viability. Without a documented assessment, it would be difficult to demonstrate whether or not the infant was viable, and the burden under EMTALA rests with the hospital. The plaintiff alleges that the MSE was not given. Merely arguing the MSE would have been futile care is not enough under the prior Baby K decision which indicated that even a known hopeless condition requires EMTALA care for the acute presentation where the hospital could provide care for the acute aspects of the condition. Without a MSE, it is again difficult to argue that the condiction was futile. Points to take away from this case: 1. OB presentations are covered by EMTALA in OB or in the ED 2. The baby is a separate patient covered by EMTALA when mom presents, and has separate EMTALA rights 3. It is dangerous to try to distinguish emergency duties for patients in the unit from those in the ED, and you take your chances both with CMS and with malpractice cases where it will be hard to defend double standards 4. It is always "difficult to impossible" to establish you did what was reasonable without detailed examination findings and policies and procedures to back you up
At Tue, 26 Jul 2005, Efrain Ramirez wrote:
>
-- "Character may be manifested in the great moments, but it is made in the small ones."
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