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Legal & Regulatory

Case law update

ME D I C A L BA TTE R Y

Hospital may be liable for medical battery for blood draw without
consent

FA C TS :
Kelley O’Brien was driving erratically outside a convenience store in February
2009, and a police officer on foot tried to stop him. Mr. O’Brien allegedly
tried to drive into the officer. In response, the officer fired his weapon at the
car and struck Mr. O’Brien in the back. Mr. O’Brien stopped the car and was
taken to Fletcher Allen Health Care (FAHC) for treatment. He underwent
emergency surgery for his wound. This much is not in dispute. What happened
By John C. West, JD, at the hospital was very much in dispute. The court construed the disputed
MHA, DFASHRM, facts in Mr. O’Brien’s favor for the purposes of this decision.
CPHRM
Mr. O’Brien was taken to the emergency department (ED) first. While there,
the police requested that he consent to a blood draw for the purposes of gain-
ing evidence of his blood alcohol level. Mr. O’Brien refused to consent. The
officer indicated that he would get a warrant, but before the blood could be
drawn Mr. O’Brien was taken from the ED to the operating room (OR).

After the surgery was performed, Mr. O’Brien was taken from the OR to the
postanesthesia care unit (PACU). Since he was still in custody, there were police
officers in the PACU. At one point when his nurse (Catherine Synott) had left
the area, the police officers again requested a blood sample. When Mr. O’Brien
refused, the police allegedly tried to take a sample by force, but were unsuccess-
ful. Nurse Synott returned to the bedside and drew Mr. O’Brien’s blood at the
request of the officers. While it is undisputed that he allowed her to draw his
blood, he apparently did not consent to have his blood drawn for nonmedical
purposes. Nurse Synott gave the blood specimen to the officers.

Mr. O’Brien subsequently filed suit for negligence and battery against Nurse
Synott and FAHC. The negligence claim asserted that FAHC was liable in
damages for allowing the police officers to assault him. The battery claim was
brought for drawing his blood for a purpose to which he had not consented.
The trial court granted the defendants’ motion for summary judgment and dis-
missed the claims. This appeal to the Supreme Court of Vermont was taken.

ISSUES:
Was Nurse Synott justified in drawing Mr. O’Brien’s blood at the request of
the officers? Did Mr. O’Brien consent to the blood draw by not objecting?
Did FAHC have a duty to protect Mr. O’Brien from the alleged assault by
the police officers? Did Mr. O’Brien need to produce expert testimony in
order to prove his claims?

© 2014 American Society for Healthcare Risk Management of the American Hospital Association
Published online in Wiley Online Library (wileyonlinelibrary.com) • DOI: 10.1002/jhrm.21142

44 JOURNAL OF HEALTHCARE RISK MANAGEMENT • VOLUME 33, NUMBER 4


ANA LYSIS: should pay attention. Each patient has the right to deter-
mine what will and will not be done to his/her body. To
The Supreme Court of Vermont noted that Mr. O’Brien’s perform any physical touching without the patient’s con-
claims were for medical battery, not for medical negli- sent disrespects the patient’s autonomy and may subject
gence, which is a simple claim for a touching without the provider to liability.
consent. The court held that expert testimony is not
necessary to prove that someone was touched without his While the US Supreme Court’s decision on this matter
consent. is more definitive on this issue than Vermont’s, the deci-
sion in McNeely is congruent with this decision. McNeely
The court also held that FAHC could not be held liable reinforces the need for consent prior to drawing blood for
for the alleged assault by the police officers. As a general a blood alcohol test. The basic rule is that all touching
rule, a party cannot be held liable for an assault by anoth- requires some level of consent. Even if the state legislature
er person that was not foreseeable. Since it was not fore- has specifically authorized an act (such as drawing blood
seeable that the police officers would assault Mr. O’Brien, on request of law enforcement), McNeely would indicate
the hospital did not have a duty to prevent it. that, in the absence of a warrant, the hospital should not
The court reviewed the statutes of Vermont and noted perform the act without obtaining the patient’s consent.
that the legislature had not enacted legislation to author- If the officer has obtained a warrant to have the blood
ize a healthcare provider to draw blood for law enforce- drawn, the most prudent course of action would be to
ment purposes and had not provided immunity for those confer with hospital legal counsel before proceeding.
who do draw blood on behalf of law enforcement. It Legal blood alcohol tests are problematic from the per-
noted that, for example, Illinois (see 625 Ill. Comp. Stat. spective of the Emergency Medical Treatment and Labor
Ann. 5/11–500.1) and Pennsylvania (see 75 Pa. Cons. Act (EMTALA), 42 USC § 1395dd, as well. The Centers
Stat. Ann. § 3755) have enacted such legislation. In the for Medicare and Medicaid Services (CMS) has stated:
absence of enabling legislation, healthcare providers in
Vermont do not have the authority to draw blood for law Attention to detail concerning blood alcohol testing (BAT) in
enforcement officers without the patient’s consent. the ED is instrumental when determining if a MSE [medical
screening examination] is to be conducted. If an individual
The court noted that while Mr. O’Brien did not object is brought to the ED and law enforcement personnel request
when Nurse Synott drew his blood, Mr. O’Brien did not that emergency department personnel draw blood for a BAT
overtly consent to it. Additionally, there was an issue, if only and does not request examination or treatment for a
Mr. O’Brien did consent, whether he consented to the medical condition, such as intoxication and a prudent lay
blood draw for medical, as opposed to nonmedical, pur- person observer would not believe that the individual needed
poses. At this stage of the proceedings, the court held that such examination or treatment, then the EMTALA’s screen-
that was an issue for the fact finder (ie, the jury) to decide. ing requirement is not applicable to this situation because
Accordingly, the court affirmed the dismissal of the claim the only request made on behalf of the individual was for
regarding the failure to prevent the assault by the police evidence. However, if for example, the individual in police
but reversed the battery claim as to the hospital and Nurse custody was involved in a motor vehicle accident or may
Synott. have sustained injury to him or herself and presents to the
ED a MSE would be warranted to determine if an EMC
As an aside, and possibly unbeknownst to this court, the exists. (Emphasis added)
Supreme Court of the United States has recently ruled on
this issue. Missouri had a law that allowed law enforcement CMS, State Operations Manual Appendix V—Interpretive
to force a person suspected of driving while intoxicated Guidelines—Responsibilities of Medicare Participating
to undergo a blood alcohol test without first obtaining a Hospitals in Emergency Cases, 42 CFR § 489.24(c)
search warrant. The Supreme Court held that this violated If law enforcement officers bring a patient to the ED for
the Fifth Amendment to the US Constitution. Although a blood alcohol test, ED personnel would be well advised
the court recognized that alcohol in the blood is evanescent to try to determine whether the patient may have suffered
evidence that will dissipate with time, that did not indicate an injury (eg, fall, motor vehicle accident) or may have a
that the circumstances were so exigent that an officer was medical condition (eg, alcohol toxicity) that requires an
not required to obtain a warrant before requiring the col- emergency screening examination. This may also apply to
lection of blood without consent. Missouri v McNeely, No. situations in which the police bypass the ED and take the
11–1425 (US April 17, 2013). Accordingly, the Supreme person directly to the laboratory to have the blood drawn.
Court found the Missouri statute unconstitutional. See 42 C.F.R. § 489.24(b)(2). (If a patient presents on hos-
pital property other than the dedicated emergency depart-
ment, “[i]n the absence of such a request [for a medical
RI SK MAN AG EMEN T C ON SIDER ATI O N S :
screening examination] by or on behalf of the individual,
While medical battery cases are not usually high value a request on behalf of the individual will be considered to
cases, this is nonetheless a case to which risk managers exist if a prudent layperson observer would believe, based

DOI: 10.1002/jhrm AMERICAN SOCIETY FOR HEALTHCARE RISK MANAGEMENT • VOLUME 33, NUMBER 4 45
on the individual’s appearance or behavior, that the indi- to stabilize her emergency medical condition prior to dis-
vidual needs emergency examination or treatment.”) charging her. The case followed a tortured path, including
trial and a previous appeal. On remand, the trial court
Each hospital with an ED should have a comprehensive dismissed the case on defendants’ motion for summary
policy on drawing blood alcohol tests at the request of judgment, holding that the plaintiff had failed to prove an
law enforcement. This policy should be applicable to all EMTALA claim and that EMTALA did not create a fed-
departments and units of the hospital, including, as in eral cause of action for medical negligence. This appeal to
this case, the PACU. the US Court of Appeals for the First Circuit ensued.
O’Brien v Synott, No. 2012–164 (Vt May 17, 2013)
ISSUES:
Did the plaintiff ’s claim assert a cause of action for dis-
E M E RGEN C Y MEDIC IN E parate screening or only for faulty screening? Did the
trial court have jurisdiction under EMTALA to hear
Failure to follow screening protocol may violate the case?
EMTALA
A N A LY S I S :
FA CT S:
The court of appeals noted that the trial court had
Hazel Cruz-Vazquez was in her third trimester of her first confused the issue of jurisdiction with issues of merit.
pregnancy when she presented to the emergency depart- Jurisdiction is conferred on a federal court by, among
ment (ED) at Mennonite General Hospital (MGH) on other things, a cause of action arising under a federal stat-
January 4, 2007. She complained of a vaginal discharge ute, such as EMTALA. The court assessed the case as if it
and blood spotting, but denied dysuria, pelvic pain, or had been dismissed on a motion for summary judgment,
fever. She stated that she felt fetal movement during rather than on a challenge to jurisdiction. A motion for
the visit. She was evaluated by Dr. Brenda Torres-Perez summary judgment is granted only in situations in which
(Dr. Torres), who performed a pelvic examination but did there are no genuine issues of material fact for the fact
not perform any other tests. finder to decide. A fact is material if it might be determi-
native in reaching an outcome. The court held that the
Approximately 40 minutes after her arrival, Dr. Torres plaintiff had alleged a cause of action under EMTALA;
consulted with Dr. Eduardo Gomez-Torres (Dr. Gomez), hence, the trial court had jurisdiction to hear the case.
Ms. Cruz-Vazquez’s obstetrician. Dr. Gomez advised Dr.
Torres to administer 0.25 mg of Brethine and 50 mg of The court noted that a medical screening examination
Vistaryl. He further advised Dr. Torres to discharge Ms. is “appropriate” if it is reasonably intended to determine
Cruz-Vazquez with instructions to follow up with him in whether an emergency medical condition exists. The pro-
his office at 8:00 a.m. the next morning. Dr. Torres fol- tocol was evidence of what MGH believed an appropri-
lowed Dr. Gomez’s instructions. ate screening should be in the case of women presenting
in their third trimester with vaginal bleeding. The court
Dr. Gomez examined Ms. Cruz-Vazquez the next morn- cited other cases in which the failure to follow a protocol,
ing. She was still complaining of spotting. Upon examina- when presenting complaints would trigger the protocol,
tion, Dr. Gomez found that her cervix was dilated to 7 was considered the touchstone of a disparate screen-
centimeters and the fetus was floating in a breech posi- ing claim under EMTALA. See, eg, Battle v Memorial
tion. He diagnosed an incompetent cervix. He arranged Hospital, 228 F3d 544 (5th Cir 2000); Summers v Baptist
for transfer to another hospital, where a cesarean section Medical Center Arkadelphia, 91 F3d 1132 (8th Cir 1996).
was performed. The baby was alive at delivery, but died The court held that the fact that Dr. Torres was following
on January 7, 2007, of causes that were not specified in the advice of Dr. Gomez did not excuse her failure to fol-
this opinion. low the screening protocol. In short, the court of appeals
At the time in question, MGH had a protocol in place held that there was sufficient evidence for a jury to find
for screening pregnant women in their third trimester that the screening was disparate.
who were experiencing vaginal bleeding. This protocol Consequently, the First Circuit reversed the dismissal of
indicated that a speculum examination be done, that an the case and remanded it for further proceedings.
examination for ruptured membranes be done, and that
a number of laboratory tests be done. It was undisputed
that the protocol was in place on the night of the ED visit R I S K MA N A GE ME N T C O N S ID ER AT I O NS :
and that Dr. Torres did not follow it.
As a general rule, screening protocols are desirable for an
Ms. Cruz-Vazquez brought suit under the Emergency elementary purpose: to remove differences in the ways
Medical Treatment and Labor Act (EMTALA), 42 USC in which patients with similar presenting conditions are
§1395dd, for failing to screen her properly and for failing screened by different providers. The implementation of

46 JOURNAL OF HEALTHCARE RISK MANAGEMENT • VOLUME 33, NUMBER 4 DOI: 10.1002/jhrm


a protocol, and following the protocol in every case in when he pulled his IV from his arm and announced
which the patient presents with a condition governed his intention to leave by taxi, rather than be admit-
by the protocol, is strong evidence that a given patient’s ted to the detoxification unit. The nurse urged him to
medical screening examination was not disparate. The call a friend to pick him up and then left to tell Dr.
difficulty comes in making certain that the protocol is fol- Chintapalli that the patient wished to leave. When she
lowed in all cases. returned to Mr. Kowalski’s room, he was gone. The nurse
asked Dr. Chintapalli if she should call the police, but
The first hurdle is ensuring that every member of the Dr. Chintapalli told her not to.
emergency medical staff, or any other members of the
medical staff who may be involved in screening patients, Mr. Kowalski apparently left the hospital unescorted.
approves of the protocol and agrees to follow it in all cases Approximately 1 to 2 hours after his departure, he was
in which it is relevant. If the medical staff members do struck by a car and injured.
not agree to follow the protocol, the hospital might be
better off without one. That, however, leaves the hospital Mr. Kowalski brought suit against the hospital and
at the mercy of conflicting experts. Dr. Chintapalli for negligence and medical malpractice.
The trial court denied the defendants’ motion for sum-
The second hurdle is ensuring that the providers actually mary judgment. The appellate court reversed the decision
follow the protocol in each case in which the triggering of the trial court, and this appeal to the Court of Appeals
symptoms are identified. This could be a performance for New York (New York’s highest court) ensued.
improvement indicator that can be tracked by provider
and reported back to the medical staff. It often spurs
ISSUE:
performance improvement when providers know that
someone is watching. If this course is followed, the pro- May the defendants be held liable for not preventing
vider should be expected to document a rationale for not Mr. Kowalski from leaving the hospital?
following the protocol in a given case, if the protocol was
applicable. This may help to alleviate providers’ concerns
A N A LY S I S :
that the hospital is requiring “cookbook” medicine.
The court noted that, in a free society, a person is free to
As this case indicates, EMTALA can be violated in situa- come and go as he pleases, subject to limited exceptions.
tions where the provider honestly felt that she was doing These exceptions include the situation where the patient
the right thing. There are many EMTALA cases in which is a danger to himself or others, and a healthcare provider
the real allegation was that the screening was negligent is authorized to detain him. There is also an exception in
rather than disparate, but this is a case in which the New York for severely intoxicated persons whose intoxi-
screening was probably not negligent, but was disparate. cation constitutes a dangerous condition. In this latter
case, a healthcare provider may be entitled to provide
Cruz-Vazquez v Mennonite General Hospital, No. 11–2297
emergency care against the patient’s will. See NY Mental
(1st Cir May 29, 2013)
Hygiene Law, § 2209. The court noted that neither of
these exceptions applied in this case. Absent an exception
to the general rule, the hospital had no right to hold Mr.
ME D I CAL MALPRAC TIC E Kowalski against his will; hence, it had no duty to hold
him against his will.
Hospital not liable for failing to stop intoxicated
patient from leaving The Court of Appeals affirmed the reversal of the trial
court’s denial of the motion for summary judgment and
dismissed the action.
FA CT S:
Kevin Kowalski was brought to St. Francis Hospital’s R I S K MA N A GE ME N T C O N S ID ER AT I O NS :
emergency department (ED) in an intoxicated state. He
was seeking admission to the hospital’s medical detoxifica- It is often the case that healthcare providers adopt a
tion unit. He had been admitted previously with suicidal paternalistic approach to patient care and seek to pre-
ideations, but there was no evidence that he was suicidal vent any harm to their patients. While such an approach
on this occasion. He showed obvious signs of intoxication, is clearly laudable, there are limitations that must be
and his blood alcohol level was 0.369%. He was alert and respected. Unless a situation exists that, under state law,
was able to walk unassisted. He was examined in the ED would allow a patient to be prevented from leaving, and
by Dr. Chintapalli. He was accepted for admission to the state law addresses this particular situation, competent
detoxification unit. patients are free to leave and they are free to refuse care,
even life-sustaining care. As the Court of Appeals aptly
Mr. Kowalski was in the ED for a total of 4 hours. He noted, if there is no right under state law, there is no
was still awaiting transfer to the detoxification unit duty.

DOI: 10.1002/jhrm AMERICAN SOCIETY FOR HEALTHCARE RISK MANAGEMENT • VOLUME 33, NUMBER 4 47
This case indicates that a careful review of state law on The nurse/receptionist told investigators that she would
this subject should be undertaken if one has not previous- fill out the prescription and “progress notes” in the
ly been done. State law may vary on this issue. Hospital patient’s record, and then send the materials to Dr.
staff members, particularly in the ED, but possibly else- Gonzales-Ramos in Texas for his signature. When he came
where in the facility, need to know their limitations when to Logan on the next occasion, he would bring the signed
it comes to detaining patients against their will. Absent a prescriptions and the signed progress notes. The investiga-
reason to detain them pursuant to state law, the general tors also recovered prewritten prescriptions in the records
rule is that they can leave. in the office.
Another thorny issue indirectly presented by this case is A criminal complaint was brought against Dr. Gonzales-
whether to call the police when an obviously intoxicated Ramos on March 3, 2013. Dr. Gonzales-Ramos pled
patient wants to leave the ED. Policies need to be developed guilty to the criminal complaint on April 23, 2013. A
to answer the issues presented by this dilemma. Should sentencing hearing was scheduled for September 3, 2013.
the police be called in all cases? Should the police be called
when it is clear that the patient may commit an offense,
ISSUE:
such as driving under the influence? How much informa-
tion can be given to the police without violating the Health Should Dr. Gonzales-Ramos be sentenced to the mini-
Insurance Portability and Accountability Act (HIPAA) mum sentence (57 months), the maximum sentence
or state law on the confidentiality of health information? (71 months), or to some period of incarceration in
While the fact that a person is visibly intoxicated may not between?
be protected health information, the level of alcohol in the
patient’s blood may be. Many of these issues may depend
A N A LY S I S :
on the particular facts of the situation, but it is important
that healthcare providers have guidance when confronted The district court delivered its sentencing opinion and
with this issue at 2:00 a.m. on a Sunday morning. order in open court on September 3, 2013, and its ration-
ale was not disclosed in the papers filed with the court
Kowalski v St. Francis Hospital & Health Centers, 2013 NY clerk. The court sentenced Dr. Gonzales-Ramos to 71
Slip Op 04756 (NY June 26, 2013) months in federal prison, the maximum sentence under
the federal guidelines.

CRI M I N AL LAW R I S K MA N A GE ME N T C O N S ID ER AT I O NS :
Physician receives maximum sentence for running Providers with the authority to prescribe controlled sub-
a “pill mill” stances need to be careful when doing so. Law enforce-
ment officials are able to monitor prescribing practices
FA CT S: for “overprescribing.” Unfortunately, a particular chronic
pain patient’s response to analgesics may be different from
Fernando Gonzales-Ramos, MD, maintained a practice another patient’s response, leading to what may be consid-
as a primary care physician at a Veterans Administration ered “overprescribing” that is actually within the bounds
facility in El Paso, Texas, but he also operated an office in of reasonableness under the circumstances. If providers are
Logan, West Virginia. He commuted periodically between going to prescribe Schedule II or Schedule III drugs for
the 2 locations. The location in Logan was run, appar- their patients, there are certain precautions that they need
ently, primarily to provide prescriptions for Schedule II to take.
and Schedule III medications.
The obvious first step is to actually enter into an objective-
According to an affidavit attached to the criminal com- ly justifiable provider-patient relationship. This involves, at
plaint, the office in Logan was staffed by a nurse/recep- a bare minimum, examining the patient and taking a his-
tionist, a bodyguard, and an armed security guard. The tory. The object should be to determine a treatment regi-
location did not have running water, nor did it have the men that conforms to standard practices in pain manage-
equipment one would normally expect in a medical office, ment, rather than just hand out medication. The provider
such as scales, examination tables, or stethoscopes. On should maintain an office that has the requisite equipment
the day that a search warrant was executed, the above staff and supplies necessary to run a medical practice.
members were in the office, but Dr. Gonzales-Ramos was
not. On the day in question, law enforcement officials The Journal of Pain has published guidelines for provid-
staking out the office sent a cooperating person into the ers in this area. See Chu, R., et al., Clinical Guidelines
establishment. In exchange for $450 in cash, she received for the Use of Chronic Opioid Therapy in Chronic
a prescription for hydrocodone, a Schedule III controlled Noncancer Pain, Journal of Pain 10(2): 113–130. The
substance. She was in the building less than 3 minutes. steps that a prudent provider should follow may include
She did not see Dr. Gonzales-Ramos. the following.

48 JOURNAL OF HEALTHCARE RISK MANAGEMENT • VOLUME 33, NUMBER 4 DOI: 10.1002/jhrm


The provider should have an agreement with each pain 4. The patient should be excluded from treatment if:
patient that specifies how the treatment will be handled.
The agreement should consist of: • He or she refuses to sign or abide by the agreement.

1. A requirement that the pain patient conform to • He or she refuses to take the urine drug screen.
the treatment regimen and keep all scheduled
• He or she is taking pain medication other than that
appointments.
which was prescribed, or the patient is not taking that
2. A requirement that the pain patient may not seek care which was prescribed.
or treatment from another provider for the purposes of
• There is a nondrug treatment modality that may bet-
pain management while receiving treatment from the
ter serve the patient’s needs or that would be prudent
provider, without the provider’s approval.
to attempt before beginning the drug regimen.
3. A requirement that the pain patient may receive only
The provider should have a regular schedule of physiologi-
sufficient medication to manage his/her pain, and the
cal monitoring, including urine drug screenings for each
patient may not give, sell, or otherwise distribute medi-
patient, the schedule for which should not be disclosed
cations to any other persons under any circumstances.
or announced to the patient. The provider should decide
4. Acknowledgment by the pain patient that the provider on the frequency of the screens, but a minimum of 2 to 4
has the right to check his/her prescription history times per year would probably be appropriate. The patient
through the state board of pharmacy database (if avail- should be asked for a urine specimen during the course of
able) on a regular basis. a regularly scheduled visit. This practice needs to be coordi-
nated with the testing laboratory to ensure that the results
5. Acknowledgment by the pain patient that the provider are reliable, but, if at all possible, the specimen should be
has the right to require urine drug screens at regular collected in the practice, not at the testing laboratory.
intervals to assure that medications are being taken and
that the patient is not taking any pain medications that The provider should regularly schedule a visit with a rel-
were not prescribed by the provider. evant specialist (eg, orthopedist, neurologist) for each pain
patient to ascertain whether there are any therapies other
6. Acknowledgment by the patient that the provider has than pain medication that would benefit the patient.
the right to require periodic examinations by relevant Many kinds of pain have become treatable through meth-
specialists (eg, orthopedists, neurologists) to ascertain ods including nerve blocks, physical therapy, electrical
whether there are any therapies other than pain medi- stimulations, surgery, steroid injections, and psychological
cation that would benefit the patient. support. These alternatives should be explored periodically
with each pain patient.
7. Acknowledgment by the pain patient that the provider
may terminate the relationship with the patient if The provider should regularly review the patient’s treat-
any of the terms and conditions of the agreement are ment plan, possibly with the assistance of a registered
violated. pharmacist, to determine whether the patient might be
weaned off of medication or switched to a medication
8. The agreement should include any other provisions that may be more appropriate for the patient.
deemed necessary after a review by legal counsel.
Unfortunately, the distinction between a legitimate pain
The provider should have a standardized intake process management practice and a “pill mill” may be difficult to
for pain patients. It should consider incorporating the fol- define. If the provider is going to prescribe controlled sub-
lowing elements into its intake process: stances, he or she must always practice within the scope of
legitimate medical practice.
1. Requiring a consultative report from the pain patient’s
current treating physician regarding the source of the United States v Gonzales-Ramos, Case No. 2:13-cr-00105
patient’s pain, its duration, current regimen, alter- (SD W Va September 3, 2013)
native therapies that have been attempted, and the
patient’s prognosis. This could be provided by the
pain patient’s current physician or a consult could be
required. E ME R GE N C Y ME D I C I N E

2. Physiological monitoring, including urine drug screen- ED patients are entitled to only one emergency
ing, to determine whether the patient is conforming to medical screening
the outlined treatment plan, and only to the outlined
treatment plan. FA C TS :
3. Patients must sign the agreement mentioned in #1 This case was ripe for decision on motions to dismiss,
above. so the following facts were as recited in the complaint.

DOI: 10.1002/jhrm AMERICAN SOCIETY FOR HEALTHCARE RISK MANAGEMENT • VOLUME 33, NUMBER 4 49
Michael Jene Torres was brought by ambulance to the Mr. Torres had an emergency medical condition; hence,
emergency department (ED) at Santa Rosa Memorial there was no duty to stabilize his pneumonia. The court
Hospital at 3:30 p.m. on September 19, 2011. He also held that the plaintiff had failed to show that the
complained of neck pain and severe shaking and sei- treatment for Mr. Torres’s alcohol withdrawal was not
zures due to alcohol withdrawal and pneumonia. He intended to stabilize his condition. The court felt that the
was diagnosed with alcohol withdrawal and was given plaintiffs’ allegations were conclusory and failed to adduce
1 mg of lorazepam. He was discharged at 7:30 p.m. sufficient evidence to overcome a motion to dismiss.
with instructions to seek follow up care the next day at Consequently, the court granted the motions to dismiss
a clinic. on the stabilization claims, but the dismissal was without
prejudice.
Mr. Torres did not leave the hospital. He went first to
the hospital cafeteria, where he stayed until 9:45 p.m. He The court noted that the Welfare and Institutions Code
was “forced” to leave the cafeteria at that time. He was §15657 applies to the elderly or dependent adults in the
later found seated on the floor in a hallway and was again custody or control of others. The court held that there
“forced” to leave. At 7:00 a.m. the next morning he was was no evidence that Mr. Torres was elderly or that he was
found lying down and moaning in the hospital parking in the custody or control of others. The court dismissed
lot. When asked what should be done for him, a nursing this claim.
supervisor allegedly said that “he was not our problem,”
and staff were told to call 911 if he needed help. Mr.
R I S K MA N A GE ME N T C O N S ID ER AT I O NS :
Torres died in the parking lot later that morning. He was
49 years old. This is a favorable case for hospitals, but also shows how
important it is to ensure uniformity of treatment for all
Suit was brought for violations of the Emergency patients. Some patients are more difficult than others, and
Medical Treatment and Labor Act (EMTALA), 42 USC some patients are more sympathetic than others. Given
§1395dd, and the California Welfare and Institutions Mr. Torres’s alcohol withdrawal, it is entirely possible that
Code §15657, as well as for negligence. The present the staff members in the ED wanted to discharge him
decision is the trial court’s opinion on defendants’ from the hospital without a full and complete workup.
motions to dismiss. This is the kind of situation in which all staff members
in the ED must remain cognizant of their responsibilities
I SSUE S: under EMTALA. Disparate treatment can be founded
upon the disdain that the staff members have for the
Did the hospital have a continuing duty under patient.
EMTALA to Mr. Torres after he was discharged from
the ED? Was his treatment in violation of the Welfare It is interesting that the plaintiffs did not present any
and Institutions Code? authority for the second screening. The regulations clearly
define “comes to the emergency department” (which trig-
gers the obligations of EMTALA) as:
ANA LYSIS:
The court noted that there are 2 prongs to EMTALA: Comes to the emergency department means, with respect to
the requirement to screen and the requirement to sta- an individual who is not a patient (as defined in this sec-
bilize. The court noted that the complaint stated that tion), the individual—
the examination was so cursory as to be defective, but
***
the complaint did not allege that the screening was so
cursory that it was not designed to determine whether (2) Has presented on hospital property, … other than the
an emergency medical condition existed. The plaintiffs dedicated emergency department, and requests examina-
also alleged that the hospital had a duty to screen Mr. tion or treatment for what may be an emergency medical
Torres again when he was found in the parking lot. The condition, or has such a request made on his or her behalf.
court noted that the plaintiffs provided no authority for In the absence of such a request by or on behalf of the
the duty to screen a second time, and that they failed individual, a request on behalf of the individual will be
to allege when this duty arose (in the cafeteria or in the considered to exist if a prudent layperson observer would
parking lot). Accordingly, the court dismissed the counts believe, based on the individual’s appearance or behavior,
alleging that the screening was so defective as to violate that the individual needs emergency examination or treat-
EMTALA. ment. (Emphasis added)
The court noted that the requirement to stabilize is 42 CFR § 489.24(b)
an actual knowledge condition, which applies only if
the defendant hospital knows that the patient has an Considering that some hospital personnel were concerned
emergency medical condition. The court noted that the about Mr. Torres’s condition, it is likely that a prudent
complaint did not allege that the hospital knew that layperson would have thought that he required assistance.

50 JOURNAL OF HEALTHCARE RISK MANAGEMENT • VOLUME 33, NUMBER 4 DOI: 10.1002/jhrm


Accordingly, this case should not be considered strong A BO U T TH E A U TH O R
precedent on this issue.
John C. West, JD, MHA, DFASHRM, CPHRM, is the
Hospitals need to ensure that all members of the staff, not principal of West Consulting Services, an independent risk
just those in the ED, are aware of the responsibilities that management and patient safety consulting firm. He can be
the hospital has under EMTALA. To do less is to risk liti- reached at john.west1203@yahoo.com. This column does not
gation and/or citation by CMS. provide legal advice, and the reader is encouraged to seek the
assistance of counsel when addressing the issues raised by this
Torres v Santa Rosa Memorial Hospital, No. C 12–6364 column.
PJH (ND Calif August 20, 2013)

DOI: 10.1002/jhrm AMERICAN SOCIETY FOR HEALTHCARE RISK MANAGEMENT • VOLUME 33, NUMBER 4 51
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