Presented by: Colleen Hayes, MBA, RN, EMT-P
CEO, Vertical Villages, Inc.
Editor-In-Chief, EMSvillage.com
September 6, 2001
"Sorry, we can't take that patient we're on diversion!" It's the phrase that's becoming all too common to hear across the United States- and even in other countries! This particular phrase causes significant tension and stress for EMS providers and in some places EMS providers even have to shop around to find a hospital that will accept their patient! The tension we feel on the street is felt just as much in the hospitals where our EMS doctor and nurse colleagues are working hard to try to clear the overcrowding and ED gridlock. Everyone that is touched by ED overcrowding and ambulance diversions are angry and frustrated. What is causing this crisis and what can we do about it?
This 1 hour discussion will focus on putting the scope of this problem into proper perspective, discuss the role of EMTALA, then we'll examine case studies of ED overcrowding and ambulance diversions. The case studies will examine "best practices" solutions and how to implement collaborative methods to work out sensible solutions between the hospital, EMS service, and communications centers.
Agenda:
Useful Web Links:
9th U.S. Circuit Court of Appeals: Arrington v. Wong
Source: http://www.uplaw.net/arrington.htm
MARIA MARIE ARRINGTON, Individually, as
Special Administrator of the ESTATE OF HAROLD E. ARRINGTON, Deceased; as Next
Friend of TISHA MAUNAALA ARRINGTON, a minor; HAROLDLIND KEALAPULANI FITZGERALD;
PEARL MOMILANI ARRINGTON; CHARLOTTE NALANI PARKS; LYNETTE LEILANI ARRINGTON;
HAROLD EDWARD ARRINGTON, JR.; KELLY ARRINGTON; ARDELLA ALOHA ARRINGTON; ERIC
ANTHONY ARRINGTON; DEREK BRUCE ARRINGTON; MICHELLE LEHUA MALUFAU; NATALIE
PULANI LOPA; PATRICIA-MARIE LEALOHA ARRINGTON and SOLOMON SAMUEL KALUNA
ARRINGTON, Plaintiffs,
vs.
NORBERT B. WONG, M.D.; THE EMERGENCY GROUP, INC.; THE QUEEN'S MEDICAL CENTER;
CITY AND COUNTY OF HONOLULU; CLARENCE UYEMA, EMT; and JERRY HO, EMT; JOHN DOES
1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; DOE NON-PROFIT
ORGANIZATIONS 1-10; and DOE GOVERNMENTAL ENTITIES 1-10, Defendants.
CV. NO. 98-00357 DAE
United States District Court For The District Of Hawaii
19 F. Supp. 2d 1151, 1998 U.S. Dist. Decision
September 23, 1998, Decided
For MARIA MARIE ARRINGTON, HAROLD E.
ARRINGTON, ESTATE OF, TISHA MAUNAALA ARRINGTON, PEARL MOMILANI ARRINGTON,
CHARLOTTE NALANI PARKS, LYNNETTE LEILANI ARRINGTON, HAROLD EDWARD ARRINGTON,
JR, KELLY ARRINGTON, ARDELLA ALOHA ARRINGTON, ERIC ANTHONY ARRINGTON, DEREK
BRUCE ARRINGTON, NATALIE PULANI LOPA, PATRICIA-MARIE LEALOHA ARRINGTON, SOLOMON
SAMUEL KALUNA ARRINGTON, HAROLDLIND KEALAPULANI FITZGERALD, MICHELLE LEHUA
MALAFAU, plaintiffs: Magali Sunderland, Trecker & Fritz, Honolulu, HI. For
NORBERT B. WONG, M.D., EMERGENCY GROUP, INC., THE, defendants: Deborah Ann de
Quevedo, Char Hamilton Campbell & Thom, Honolulu, HI. For QUEEN'S MEDICAL
CENTER, THE, defendant: William S. Hunt, Alston Hunt Floyd & Ing, Honolulu,
HI. For HONOLULU, CITY AND COUNTY OF, CLARENCE UYEMA, EMT, JERRY HO, EMT,
defendants: Marilyn S.H. Naitoh, Lyons Brandt Cook & Hiramatsu, Honolulu,
Hi. For HONOLULU, CITY AND COUNTY OF, CLARENCE UYEMA, EMT, JERRY HO, EMT,
cross-claimants: Marilyn S.H. Naitoh, Lyons Brandt Cook & Hiramatsu,
Honolulu, Hi.
DAVID ALAN EZRA, UNITED STATES DISTRICT JUDGE.
ORDER GRANTING DEFENDANTS' MOTION TO
DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT AND DEFENDANT CITY AND COUNTY OF
HONOLULU'S MOTION FOR JUDGMENT ON THE PLEADINGS
The court heard Defendants' Motions on
September 21, 1998. Hilary Benson Gangnes, Esq., appeared at the hearing on
behalf of Plaintiffs; Deborah A. de Quevedo, Esq., appeared at the hearing on
behalf of Defendants Norbert B. Wong, M.D. and The Emergency Group, Inc.;
William S. Hunt, Esq., appeared at the hearing on behalf of Defendant The
Queen's Medical Center; and Thomas Cook, Esq., appeared on behalf of Defendants
City and County of Honolulu, Clarence Uyema and Jerry Ho. After reviewing the
motion and the supporting and opposing memoranda, the court GRANTS Defendants'
Motions and DISMISSES Plaintiffs' Complaint and Action.
BACKGROUND
On May 5, 1996, Harold Arrington was
driving to work at approximately 11:30 p.m. when he experienced difficulty
breathing. One of his co-workers called an ambulance. When the ambulance
arrived, the ambulance personnel noted that Mr. Arrington was "in severe
respiratory distress speaking 1-2 words at a time." The ambulance left the
scene with Mr. Arrington at 12:24 a.m. and headed to Queen's Medical Center
("Queen's"), the closest medical facility. En route, the ambulance
personnel communicated by radio to Queen's and discussed Mr. Arrington's
condition with Dr. Wong, an emergency room physician at Queen's. Dr. Wong asked
who the patient's doctor was. The ambulance personnel replied that
"patient is a Tripler patient, being that he was in severe respiratory
distress we thought we'd come to a closer facility." Dr. Wong responded
that "if you start on the treatment with the oblasics and the nitro I
think it would be okay to go to Tripler." The ambulance then proceeded to
Tripler. Tripler is located five miles away from Queen's.
The ambulance arrived at Tripler at
12:40 a.m. The patient coded at 12:42 a.m. Hospital personnel at Tripler
attempted unsuccessfully to revive Mr. Arrington. He died at 1:17 a.m.
On May 4, 1998, Plaintiffs filed a
claim with the Medical Claim Conciliation Panel, State of Hawaii
("MCCP") for exemption from the MCCP filing requirements. Plaintiffs
filed a similar motion before this court on July 2, 1998. A decision from the
MCCP is pending resolution of the issue in this court.
Plaintiffs filed this action in the
United States District Court for the District of Hawaii on May 4, 1998 against
the following Defendants: Dr. Wong; his physicians group, The Emergency Group,
Inc.; The Queen's Medical Center; the City and County of Honolulu as operators
of the ambulance service; and Clarence Uyema and Jerry Ho, emergency medical
technicians attending Mr. Arrington in the ambulance. Plaintiffs assert federal
subject matter jurisdiction arising under the Emergency Medical Treatment and
Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd, a subsection of the
Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. 99-272, 100
Stat. 82 (1986) ("COBRA").
Plaintiffs' First Amended Complaint,
filed on May 18, 1998, alleges violation of EMTALA, as well as state law claims
for negligence and/or breach of warranty arising from the ambulance transfer of
Mr. Arrington on May 5, 1996. Plaintiffs claim to have suffered, among other
things, mental distress, loss of consortium, and loss of earnings. Plaintiffs
seek general, special, and punitive damages, remedies available under EMTALA,
as well as interest, attorney's fees and costs.
Defendants Dr. Wong and The Emergency
Group filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b) (6)
for failure to state a claim. On the same day, June 26, 1998, Defendant The
Queen's Medical Center filed a separate Motion to Dismiss under Rule 12(b) (1)
based on lack of subject matter jurisdiction. On July 6, 1998, Defendants City
and County of Honolulu, Clarence Uyema and Jerry Ho filed a Motion for Judgment
on the Pleadings. Because these three motions implicate the same issues, they
are treated as one for purposes of this Order.
STANDARD OF REVIEW
A motion to dismiss will be granted
where the plaintiff fails to state a claim upon which relief can be granted.
Fed. R. Civ. P. 12(b)(6). A complaint should not be dismissed unless it appears
to a certainty that plaintiff "would be entitled to no relief under any
set of facts that could be proved." Fidelity Fin. Corp. v. Federal Home
Loan Bank, 792 F.2d 1432, 1435 (9th Cir. 1986), cert. denied, 479 U.S. 1064, 93
L. Ed. 2d 998, 107 S. Ct. 949 (1987); Stender v. Lucky Stores, Inc., 766 F.
Supp. 830, 831 (N.D. Cal. 1991). All allegations of material fact are taken as
true and construed in the light most favorable to the plaintiff. Stender, 766
F. Supp. at 831.
Pursuant to a 12(b) (1) motion to dismiss
for lack of subject matter jurisdiction, the Court may receive among the forms
of competent evidence affidavits to resolve any factual dispute. Biotics
Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir. 1983). The
consideration of such evidence does not convert a motion to dismiss into one
for summary judgment. Id.
Under Rule 12(h)(2) of the Federal
Rules of Civil Procedure, "[a] defense of failure to state a claim upon
which relief can be granted . . . may be made . . . by motion for judgment on
the pleadings[.]" Judgment on the pleadings, pursuant to Fed. R. Civ. P.
12(c), is proper when the moving party clearly establishes on the face of the
pleadings that it is entitled to prevail. Doleman v. Meiji Mut. Life Ins. Co.,
727 F.2d 1480, 1482 (9th Cir. 1984). Thus, the movant must show that 1) no
material issue of fact remains to be resolved; and 2) it is entitled to
judgment as a matter of law. Id. In reviewing a motion for judgment on the
pleadings, all allegations of fact of the opposing party are accepted by the
court as true. Id.
DISCUSSION
A. EMTALA Claim
In 1986, Congress enacted the Emergency
Medical Treatment and Active Labor Act, commonly known as the "Patient
Anti-Dumping Act," in response to a growing concern about the provision of
adequate emergency room medical services to individuals who seek care,
particularly as to the indigent and uninsured." H.R. Rep. No. 241, 99th
Cong., 1st Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 726-27. "Congress
was concerned that hospitals were "dumping" patients who were unable
to pay, by either refusing to provide emergency medical treatment or
transferring patients before their conditions were stabilized." Eberhardt
v. City of Los Angeles, 62 F.3d 1253 (9th Cir. 1995).
The two relevant provisions of EMTALA
provide the following:
(a) Medical screening requirement. In
the case of a hospital that has a hospital emergency department, if any
individual . . . comes to the emergency department and a request is made on the
individual's behalf for examination or treatment for a medical condition, the
hospital must provide for an appropriate medical screening examination within
the capability of the hospital's emergency department . . . to determine
whether or not an emergency medical condition . . . exists.
(b) Necessary stabilizing treatment for
emergency medical conditions and labor.
(1) In general. If any individual . . .
comes to a hospital and the hospital determines that the individual has an
emergency medical condition, the hospital must provide either-
(A) within the staff and facilities
available at the hospital, for such further medical examination and such
treatment as may be required to stabilize the medical condition, or
(B) for transfer of the individual to
another medical facility in accordance with subsection (c)
42 U.S.C. § 1395dd.
To overcome a motion to dismiss under
EMTALA, a plaintiff must allege that: 1) plaintiff went to defendant's
emergency room; 2) with an emergency medical condition; and either the hospital
3) did not adequately screen him or her to determine whether he or she had such
a condition, or 4) discharged or transferred him or her prior to stabilization
of the medical condition. See Miller v. Medical Center of Southwest Louisiana,
22 F.3d 626, 630 fn. 8 (5th Cir. 1994); Ruiz v. Kepler, 832 F. Supp. 1444, 1447
(D.N.M. 1993); Huckaby v. East Ala. Medical Ctr., 830 F. Supp. 1399, 1402 (M.D.
Ala. 1993).
Plaintiffs have failed to meet this
standard because it is undisputed that Mr. Arrington never "went to"
Queen's emergency room. Plaintiffs argue that the language "comes to a
hospital" should not be interpreted to require actual physical presence in
the emergency room. Although the Ninth Circuit has not yet addressed this
issue, both the Fifth and Seventh Circuits have concluded that physical
presence is required in order to trigger EMTALA liability. In Johnson v.
University of Chicago Hospitals, 982 F.2d 230 (7th Cir. 1992), a mother sued a
hospital which operated a telemetry system, directing paramedics transporting
patients to the appropriate hospital in the system. The paramedics were
instructed to take the daughter to a different, more distant hospital where she
subsequently died. The Seventh Circuit upheld the dismissal of the EMTALA claim
because of its conclusion that, under the plain meaning of the statute, the
child never "came to" the hospital or its emergency department.
Likewise in Miller v. Medical Center of
Southwest Louisiana, 22 F.3d at 628-29, the Fifth Circuit held that physical
presence was required. In Miller, as in the instant case, the court found that
the patient never physically came to the emergency department. "There was
only a request over a telephone. Nevertheless, the Plaintiffs argue that we
should not construe this statute to require physical presence at the emergency
room. Instead, the Plaintiffs contend that Congress intended that the statute
would extend the hospital's duty to any individual in need of emergency care
who requests treatment at the hospital's emergency department. In essence, the
Plaintiffs are asking this Court to excise the "comes to" clause out
of the statute by construing it so as to make it redundant with the
"request is made" clause. We reject this argument . . . ." Id.
The court cited two reasons for rejecting Plaintiffs' argument. First, the
language of the statute unambiguously describes the individuals covered by
section 1395dd as those who come to the emergency department. Id. Second, such
an interpretation would render the "comes to" clause a nullity. Id.
at 629.
Plaintiffs urge this court to consider
the opinions in McIntyre v. Schick, 795 F. Supp. 777 (E.D. Va. 1992), and
Thornton v. Southwest Detroit Hospital, 895 F.2d 1131 (6th Cir. 1990).
According to Plaintiffs, these two cases held that the language "comes to
the emergency room" should not be so narrowly construed. In McIntyre, a
woman who had no health insurance arrived at the hospital in an alleged state
of fetal distress. She was taken to the labor and delivery area rather than
admitted through the emergency room. In holding that EMTALA still applied, the
court noted that the rationale behind the anti-dumping statute "is not
based on the door of the hospital through which a patient enters, but rather
upon the notion of proper medical care for those persons suffering medical emergencies,
whenever such emergencies occur at a participating hospital " (emphasis
added). McIntyre, 795 F. Supp. at 781. Rather than expand the "comes to
the emergency room" language beyond the hospital boundary, the McIntyre
court merely decided that which door the patient enters through is irrelevant.
Nothing in this opinion suggests, however, that a patient need not enter
through a hospital door.
In Thornton, the patient was taken to
the hospital's emergency room and then admitted to the Intensive Care Unit
("ICU"). Thornton, 895 F.2d at 1131. Although the patient was
scheduled to be admitted into rehabilitation therapy, she was discharged from
the hospital when the rehabilitation institute refused to accept her because
she had no insurance. Id. She alleged that the hospital failed to stabilize her
condition before discharging her. Id. at 1132. The Sixth Circuit noted that
EMTALA was enacted to revive the long tradition of American hospitals giving
emergency aid to "anyone in need who appeared on the emergency room
doorstep." Id. at 1132. In Thornton, the patient actually came to the
emergency room. At this point, EMTALA was triggered. The Sixth Circuit did
nothing to alter the starting point of EMTALA liability. Instead, the Thornton
court held that EMTALA liability did not end simply because the hospital moved
the patient from the emergency room to another unit. The court stated,
"Although emergency care often occurs, and almost invariably begins, in an
emergency room, emergency care does not always stop when a patient is wheeled
from the emergency room into the main hospital. Hospitals may not circumvent
the requirements of the Act merely by admitting an emergency room patient to
the hospital, then immediately discharging the patient." Thornton, 895 F.2d
at 1135. Again, nothing in the Thornton opinion suggests that EMTALA liability
begins before the patient arrives at the participating hospital.
This court agrees with the reasoning
set forth in the preceding opinions. The plain language of the EMTALA statute
clearly requires that a patient must first "come to" the hospital
emergency department. Failure to require at least a patient's physical presence
at the hospital before EMTALA liability arises would distort the phrase
"comes to the emergency department" beyond recognition. If congress
intended that EMTALA liability should attach prior to this point in time, it
would not have included this phrase. Since construing the phrase "comes to
the emergency department" as requiring physical presence is consistent
with both the plain language and the underlying purpose of EMTALA
("rendering emergency aid to anyone in need who appears on the emergency
room doorstep"), this court is unwilling to ignore the physical presence
requirement.
Finally, Plaintiffs have cited no
support and the court has found none for the proposition that
"constructive presence" (e.g., in this case, the ambulance's
telephone contact with the emergency room physician) would be enough to satisfy
the physical presence requirement of EMTALA. In the absence of any such
support, the court must reject this argument. If the court were to accept this
argument, it would embark down a slippery slope for which there is no logical
end. For instance, if an emergency room physician in one location observes,
through a video conferencing monitor, a patient physically located hundreds of
miles away and for whatever reason refers the patient to another hospital, has
the observing physician incurred EMTALA liability on behalf of the hospital?
Rather than attempt to distinguish such hypotheticals, the court finds the line
must be drawn at "the emergency room doorstep" as Congress intended.
Since Mr. Arrington never "came
to" Queen's emergency department, Plaintiffs have failed to state a claim
for relief under EMTALA. Therefore, the court GRANTS Defendants' Motions and
DISMISSES Plaintiffs' Complaint and Action.
B. MCCP Exemption
Because Plaintiffs' Complaint is hereby
dismissed, the court makes no determination regarding Plaintiffs' exemption
request.
C. Supplemental Jurisdiction
Plaintiffs urge this court to retain
supplemental jurisdiction over the state law claims in the event the federal
claim is dismissed. Supplemental jurisdiction is governed by 28 U.S.C. § 1367.
Section 1367(a) provides that a district court "shall have supplemental
jurisdiction over all other claims that are so related to claims in the action
within [its] original jurisdiction that they form part of the same case or
controversy. . . ." 28 U.S.C. § 1367(a). Under § 1367(c), a court may
decline to exercise supplemental jurisdiction if:
(1) the claim raises a novel or complex
issue of state law,
(2) the claim substantially
predominates over the claims or claims over which the district court has
original jurisdiction,
(3) the district court has dismissed
all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there
are other compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c)(1)-(4).
Pursuant to § 1367(c)(3), the court
refuses to exercise supplemental jurisdiction and dismisses Plaintiffs' state
law claims because, as noted above, the court has dismissed the only federal
claim. Plaintiffs further urge this court not to dismiss the state law claims,
but to remand these claims to the state court. Because Plaintiffs filed this
action in federal court originally and the action was not removed to this
court, the appropriate response is dismissal rather than remand. However,
nothing in this Order precludes Plaintiffs from filing their state law claims
in state court.
CONCLUSION
For the reasons stated above, the court
GRANTS Defendants' Motions and DISMISSES Plaintiffs' Complaint and Action.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, SEP 23 1998.
DAVID ALAN EZRA
UNITED STATES DISTRICT JUDGE