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Anti-dumping law flashes a yellow light on emergency cases - patient dumping

Healthcare Financial Management, March, 1991 by Lawrence A. Laddaga, Jeffrey A. Haynes

Anti-dumping law flashes a yellow light on emergency cases A Michigan stroke victim was first admitted to a hospital's intensive care unit and later transferred for regular inpatient care. After 21 days, her physician requested that she be transferred to another facility for post-stroke rehabilitation therapy. The second facility, citing her lack of health insurance coverage, refused to admit her. Although she later sued the treating hospital for transferring her, the facility was absolved of any liability for her care.

An 81-year-old nursing home patient sought treatment at a Pennsylvania hospital for a separated shoulder. She was treated and released within 24 hours. Claiming that her condition had not stabilized, she filed a lawsuit against the hospital. The court found that she had a valid cause of action.

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An Indiana woman complaining of chest pains was treated at a local hospital emergency room and released within an hour. She returned several hours later, having suffered a heart attack. The patient survived and field suit against the hospital, saying it should have either provided a screening exam or stabilized her condition before sending her home. The hospital prevailed.

A Kansas man suffering from chest pains and shortness of breath sought treatment at the local emergency room. Although his physician asked him to return the following day for further tests, the man failed to do so. Ten days after first being seen, the man collapsed and died. His wife filed a lawsuit against the physician and the hospital, claiming her husband's illness required that his condition be stabilized before being released. Both the physician and hospital were cleared of any liability. (a)

At first glance, none of these cases seem unusual. Lawsuits against hospitals and physicians have become increasingly common during the past several years. What is unusual about these cases is the manner in which the patients pursued their claims. The victims in these cases relied on a relatively new Medicare provision that is designed to prevent occurrences known as "patient dumping."

Patient dumping is the practice of refusing to treat patients who cannot pay for healthcare services. Federal anti-dumping law, initiated by Congress as part of the Consolidated Omnibus Budget Reconciliation Act of 1985, was designed to reverse a disturbing trend among hospital emergency rooms that either refuse to treat or transfer patients who cannot pay for medical services.

Since its passage, the anti-dumping law has undergone several revisions in the Omnibus Budget Reconciliation Act of 1989 (OBRA '89) and again in OBRA '90. Still, some sections of the law remain unclear, prompting many hospitals to proceed cautiously in handling emergency room admissions and patient transfers.

The law generally requires that Medicare-participating hospitals with emergency departments must provide a screening examination to determine whether a medical emergency actually eists and must treat anyone suffering from an emergency condition. A patient deemed to be suffering a medical emergency must be stabilized before being released or transferred to another facility. If a screening examination is performed on a patient and it is determined that no medical emergency exists, the hospital then may refuse to provide further care and can discharge the patient from the hospital.

Anti-dumping penalties. The anti-dumping legislation creates specific penalties for hospitals and physicians that turn away emergency patients for purely economic reasons. A violating hospital could see its Medicare provider agreement terminated or suspended by the Federal government.

OBRA '89 updated the anti-dumping law by subjecting hospitals and physicians to fines of $50,000 each per incidence for knowingly violating its provisions. OBRA '90 cut the fine in half for hospitals with fewer than 100 beds and calls for imposing penalties when violations result from negligence. The anti-dumping law also gives patients the right to sue hospitals that turned them away for economic reasons.

Other hospitals that suffer financial losses because of patient dumping violations also have a means of recovering damages through the legislation. These situations most likely would arise when hospitals receive transfer patients from other hospitals attempting to dump them. In addition, changes brought by OBRA '89 direct penalties for an on-call physician who either "failss or refuses to appear within a reasonable period of time." (b)

As several cases involving the anti-dumping statute have shown, to prevail in court a patient must prove that his or her dismissal from

a hospital was caused by an inability to pay. Otherwise, a patient cannot rely on the amendment, and the hospital in question will win. At least one case found that it is appropriate for a hospital to release a patient for economic reasons, if and after a patient's condition has been stabilized. (c) Although patients could not recover damages under the anti-dumping amendments in such a situation, they could choose to pursue a traditional malpractice claim against the hospital or the physician involved.

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Anti-dumping law flashes a yellow light on emergency cases - patient dumping

Healthcare Financial Management, March, 1991 by Lawrence A. Laddaga, Jeffrey A. Haynes

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