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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

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. 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. Each patient has the right to deter- mine what will and will not be done to his/her body. emergency screening examination. the Supreme person directly to the laboratory to have the blood drawn. 5/11–500. that. Accordingly. if for example. has specifically authorized an act (such as drawing blood seeable that the police officers would assault Mr. 2013). Comp. 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. in the absence of a warrant. Ann. O’Brien did not that emergency department personnel draw blood for a BAT overtly consent to it. which is a simple claim for a touching without the provider to liability. the ED is instrumental when determining if a MSE [medical screening examination] is to be conducted. that the legislature had not enacted legislation to author. person observer would not believe that the individual needed poses. If the officer has obtained a warrant to have the blood ize a healthcare provider to draw blood for law enforce. In the for Medicare and Medicaid Services (CMS) has stated: absence of enabling legislation. Missouri had a law that allowed law enforcement CMS. a party cannot be held liable for an assault by anoth. 42 CFR § 489. This may also apply to lection of blood without consent. then the EMTALA’s screen- that was an issue for the fact finder (ie. the exists. based DOI: 10. the hospital should not The court reviewed the statutes of Vermont and noted perform the act without obtaining the patient’s consent. that did not indicate an injury (eg.F. Since it was not fore. not for medical negli. If an individual The court noted that while Mr. as well. for example. 42 USC § 1395dd. The Centers Stat. such as intoxication and a prudent lay blood draw for medical. on request of law enforcement). O’Brien did not object is brought to the ED and law enforcement personnel request when Nurse Synott drew his blood. It Legal blood alcohol tests are problematic from the per- noted that. § 3755) have enacted such legislation. the jury) to decide. is more definitive on this issue than Vermont’s. As a general a blood alcohol test.24(b)(2). as opposed to nonmedical. The basic rule is that all touching rule. situations in which the police bypass the ED and take the 11–1425 (US April 17. O’Brien. O’Brien’s perform any physical touching without the patient’s con- claims were for medical battery. spective of the Emergency Medical Treatment and Labor Ann.ANA LYSIS: should pay attention. 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. 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. the court held that such examination or treatment. NUMBER 4 45 . ing requirement is not applicable to this situation because Accordingly. this is nonetheless a case to which risk managers exist if a prudent layperson observer would believe.1002/jhrm AMERICAN SOCIETY FOR HEALTHCARE RISK MANAGEMENT • VOLUME 33. 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. 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. alcohol toxicity) that requires an not required to obtain a warrant before requiring the col. Even if the state legislature er person that was not foreseeable. (Emphasis added) Supreme Court of the United States has recently ruled on this issue. However. 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. Mr. (If a patient presents on hos- pital property other than the dedicated emergency depart- ment. Stat. While medical battery cases are not usually high value a request on behalf of the individual will be considered to cases. No. McNeely would indicate the hospital did not have a duty to prevent it. pur. “[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. 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. § 489. See 42 C. Court found the Missouri statute unconstitutional. sent disrespects the patient’s autonomy and may subject gence. To The Supreme Court of Vermont noted that Mr. consent.R. Act (EMTALA). Although a blood alcohol test. requires some level of consent. and possibly unbeknownst to this court. O’Brien did consent. who do draw blood on behalf of law enforcement. Missouri v McNeely.1) and Pennsylvania (see 75 Pa. motor vehicle accident) or may have a that the circumstances were so exigent that an officer was medical condition (eg. Cons. drawn. if only and does not request examination or treatment for a Mr. At this stage of the proceedings. the deci- sion in McNeely is congruent with this decision. Illinois (see 625 Ill. there was an issue. 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. Additionally. fall. whether he consented to the medical condition.24(c) search warrant.

who were experiencing vaginal bleeding. 2007. Torres). 2007. NUMBER 4 DOI: 10. The implementation of 46 JOURNAL OF HEALTHCARE RISK MANAGEMENT • VOLUME 33. She was evaluated by Dr. He further advised Dr. The case followed a tortured path. as in eral cause of action for medical negligence. finder to decide.on the individual’s appearance or behavior. Torres to discharge Ms. 42 USC in which patients with similar presenting conditions are §1395dd. Dr. 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. of causes that were not specified in the advice of Dr. She complained of a vaginal discharge ute. 91 F3d 1132 (8th Cir 1996). such as EMTALA. Summers v Baptist for transfer to another hospital. among ment (ED) at Mennonite General Hospital (MGH) on other things. who performed a pelvic examination but did there are no genuine issues of material fact for the fact not perform any other tests. the next morning. Cruz-Vazquez brought suit under the Emergency elementary purpose: to remove differences in the ways Medical Treatment and Labor Act (EMTALA). This protocol Consequently. including. O’Brien v Synott. where a cesarean section Medical Center Arkadelphia. cited other cases in which the failure to follow a protocol. On remand. the US Court of Appeals for the First Circuit ensued. ing claim under EMTALA. A fact is material if it might be determi- native in reaching an outcome.1002/jhrm . 228 F3d 544 (5th Cir 2000). Gomez). Dr. Dr.”) charging her. Gomez examined Ms. Torres did not follow it. He diagnosed an incompetent cervix. the trial court had jurisdiction to hear the case. Brenda Torres-Perez summary judgment is granted only in situations in which (Dr. Ms. and that a number of laboratory tests be done. ate screening should be in the case of women presenting in their third trimester with vaginal bleeding. ing. Dr. Torres fol. or had been dismissed on a motion for summary judgment. the court of appeals At the time in question. pregnancy when she presented to the emergency depart. A motion for the visit. She was still complaining of spotting. hence. The court assessed the case as if it and blood spotting. pelvic pain. fever. No. The baby was alive at delivery. the PACU. He arranged Hospital.25 mg of Brethine and 50 mg of The court noted that a medical screening examination Vistaryl. 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. Gomez did not excuse her failure to fol- this opinion. Jurisdiction is conferred on a federal court by. As a general rule. that the indi. Gomez’s instructions. 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. See. Torres to administer 0. This appeal to this case. Gomez advised Dr. Upon examina. including trial and a previous appeal. tocol was evidence of what MGH believed an appropri- lowed Dr. Torres plaintiff had alleged a cause of action under EMTALA. holding that the plaintiff had failed to prove an law enforcement. 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. a cause of action arising under a federal stat- January 4. low the screening protocol. Cruz-Vazquez the next morn. In short. examination for ruptured membranes be done. Eduardo Gomez-Torres (Dr. that an the case and remanded it for further proceedings.m. tion. to stabilize her emergency medical condition prior to dis- vidual needs emergency examination or treatment. The pro- his office at 8:00 a. when presenting complaints would trigger the protocol. consulted with Dr. the First Circuit reversed the dismissal of indicated that a speculum examination be done. Torres was following on January 7. 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. screening protocols are desirable for an Ms. but died The court held that the fact that Dr. The court held that the Approximately 40 minutes after her arrival. She stated that she felt fetal movement during rather than on a challenge to jurisdiction. for failing to screen her properly and for failing screened by different providers. but denied dysuria. eg. 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. was performed. Battle v Memorial tion. This policy should be applicable to all EMTALA claim and that EMTALA did not create a fed- departments and units of the hospital. The court Dr. Cruz-Vazquez’s obstetrician. 2012–164 (Vt May 17.

It is often the case that healthcare providers adopt a tion unit. The court noted that. The nurse asked Dr. May the defendants be held liable for not preventing vider should be expected to document a rationale for not Mr. Kowalski’s room. leaves the hospital Mr. There is also an exception in rather than disparate. improvement indicator that can be tracked by provider and reported back to the medical staff. subject to limited exceptions. Chintapalli that the patient wished to leave. The call a friend to pick him up and then left to tell Dr. If the medical staff members do struck by a car and injured. the hospital had no right to hold Mr. was able to walk unassisted. 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. but was disparate. and this appeal to the Court of Appeals symptoms are identified. 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. Unless a situation exists that. FA CT S: Kevin Kowalski was brought to St. He showed obvious signs of intoxication. 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. however. When she lowed in all cases. tions where the provider honestly felt that she was doing These exceptions include the situation where the patient the right thing. under state law. but there was no evidence that he was suicidal vent any harm to their patients. While such an approach on this occasion. Kowalski apparently left the hospital unescorted. hence. not agree to follow the protocol. He was seeking admission to the hospital’s medical detoxifica. Absent an exception to the general rule. If this course is followed. No. the hospital might be better off without one. Chintapalli if she should call the police. there is no was still awaiting transfer to the detoxification unit duty. returned to Mr. See NY Mental (1st Cir May 29. Kowalski from leaving the hospital? following the protocol in a given case. he was in which it is relevant. This could be a performance for New York (New York’s highest court) ensued. Chintapalli. difficulty comes in making certain that the protocol is fol. Chintapalli told her not to. NUMBER 4 47 . Kowalski brought suit against the hospital and at the mercy of conflicting experts. emergency medical staff. DOI: 10. but The first hurdle is ensuring that every member of the Dr. cation constitutes a dangerous condition. The court noted that neither of these exceptions applied in this case. Kowalski was in the ED for a total of 4 hours. a healthcare provider may be entitled to provide Cruz-Vazquez v Mennonite General Hospital. He had been admitted previously with suicidal paternalistic approach to patient care and seek to pre- ideations. but this is a case in which the New York for severely intoxicated persons whose intoxi- screening was probably not negligent. As the Court of Appeals aptly Mr. There are many EMTALA cases in which is a danger to himself or others. He was examined in the ED would allow a patient to be prevented from leaving. even life-sustaining care. ME D I CAL MALPRAC TIC E Kowalski against his will. § 2209. he was gone. He noted. In this latter case. rather than be admit- by the protocol. The appellate court reversed the decision follow the protocol in each case in which the triggering of the trial court. approves of the protocol and agrees to follow it in all cases Approximately 1 to 2 hours after his departure. The trial court denied the defendants’ motion for sum- The second hurdle is ensuring that the providers actually mary judgment. there are limitations that must be and his blood alcohol level was 0. That. come and go as he pleases. Dr. and a healthcare provider the real allegation was that the screening was negligent is authorized to detain him. EMTALA can be violated in situa. if the protocol was applicable. The nurse urged him to medical screening examination was not disparate.369%.1002/jhrm AMERICAN SOCIETY FOR HEALTHCARE RISK MANAGEMENT • VOLUME 33. if there is no right under state law. 2013) Hygiene Law. He was accepted for admission to the state law addresses this particular situation. it had no duty to hold him against his will. in a free society. He was alert and respected. competent detoxification unit. is strong evidence that a given patient’s ted to the detoxification unit. 11–2297 emergency care against the patient’s will. a person is free to As this case indicates. It often spurs ISSUE: performance improvement when providers know that someone is watching. and by Dr. is clearly laudable.a protocol. Mr. or any other members of the medical staff who may be involved in screening patients. Chintapalli for negligence and medical malpractice. patients are free to leave and they are free to refuse care. the pro. This may help to alleviate providers’ concerns A N A LY S I S : that the hospital is requiring “cookbook” medicine.

” Unfortunately. rather than just hand out medication. the above staff and supplies necessary to run a medical practice. or to some period of incarceration in While the fact that a person is visibly intoxicated may not between? be protected health information. she received for the Use of Chronic Opioid Therapy in Chronic a prescription for hydrocodone. In exchange for $450 in cash. A to answer the issues presented by this dilemma. Hospital patient’s record. ment. Gonzales- whether to call the police when an obviously intoxicated Ramos on March 3. 2013. primarily to provide prescriptions for Schedule II to take. State law may vary on this issue. The tory. staff members. When he came where in the facility. fill out the prescription and “progress notes” in the ly been done. She was in the building less than 3 minutes. The investiga- reason to detain them pursuant to state law. at plaint. MD.m. The provider such as scales. and its ration- ale was not disclosed in the papers filed with the court Kowalski v St. The substance. there are certain precautions that they need ently. their patients. Texas. examining the patient and taking a his- tionist. 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. R. appar. Gonzales-Ramos. particularly in the ED. Clinical Guidelines establishment. If providers are Logan. examination tables. 2013. a bodyguard. 2013. need to know their limitations when to Logan on the next occasion. on a Sunday morning. This involves. members were in the office. The court sentenced Dr. maintained a practice another patient’s response. Policies need to be developed guilty to the criminal complaint on April 23. He commuted periodically between going to prescribe Schedule II or Schedule III drugs for the 2 locations. but possibly else. Dr. ly justifiable provider-patient relationship. On the day in question. 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. ISSUE: such as driving under the influence? How much informa- tion can be given to the police without violating the Health Should Dr. The object should be to determine a treatment regi- location did not have running water. The location in Logan was run. and Schedule III medications. West Virginia. the office in Logan was staffed by a nurse/recep. 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. Gonzales-Ramos pled patient wants to leave the ED. On should maintain an office that has the requisite equipment the day that a search warrant was executed. the level of alcohol in the patient’s blood may be. Journal of Pain 10(2): 113–130. NUMBER 4 DOI: 10. a bare minimum. the general tors also recovered prewritten prescriptions in the records rule is that they can leave. and an armed security guard. but he also operated an office in of reasonableness under the circumstances. a particular chronic pain patient’s response to analgesics may be different from Fernando Gonzales-Ramos. Gonzales-Ramos in Texas for his signature. See Chu.. Gonzales-Ramos be sentenced to the mini- Insurance Portability and Accountability Act (HIPAA) mum sentence (57 months). Law enforce- ment officials are able to monitor prescribing practices FA CT S: for “overprescribing. 2013. et al. 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. and then send the materials to Dr. Should sentencing hearing was scheduled for September 3. Absent a prescriptions and the signed progress notes. but Dr. the police be called in all cases? Should the police be called when it is clear that the patient may commit an offense. Gonzales-Ramos to 71 Slip Op 04756 (NY June 26. the maximum sentence under the federal guidelines. order in open court on September 3. Another thorny issue indirectly presented by this case is A criminal complaint was brought against Dr. nor did it have the men that conforms to standard practices in pain manage- equipment one would normally expect in a medical office. 2013) months in federal prison. Francis Hospital & Health Centers.. or stethoscopes. The obvious first step is to actually enter into an objective- According to an affidavit attached to the criminal com. 48 JOURNAL OF HEALTHCARE RISK MANAGEMENT • VOLUME 33. the maximum sentence or state law on the confidentiality of health information? (71 months). he would bring the signed it comes to detaining patients against their will. Many of these issues may depend A N A LY S I S : on the particular facts of the situation. the following. 2013 NY clerk. in the office. a Schedule III controlled Noncancer Pain.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. steps that a prudent provider should follow may include She did not see Dr. Gonzales-Ramos was not.1002/jhrm .

support. (SD W Va September 3. Acknowledgment by the patient that the provider has than pain medication that would benefit the patient. and only to the outlined treatment plan. This could be provided by the pain patient’s current physician or a consult could be required. the schedule for which should not be disclosed cations to any other persons under any circumstances. sell. the right to require periodic examinations by relevant Many kinds of pain have become treatable through meth- specialists (eg. The agreement should consist of: • He or she refuses to sign or abide by the agreement. orthopedist. The patient through the state board of pharmacy database (if avail. orthopedists. DOI: 10. he or she must always practice within the scope of legitimate medical practice. 7. Acknowledgment by the pain patient that the provider on the frequency of the screens. electrical whether there are any therapies other than pain medi. 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. 2:13-cr-00105 patient’s pain. deemed necessary after a review by legal counsel. E ME R GE N C Y ME D I C I N E 2. above. should be asked for a urine specimen during the course of able) on a regular basis. It should consider incorporating the fol. possibly with the assistance of a registered violated. Physiological monitoring. 1. Case No. and the patient’s prognosis. 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. 3.The provider should have an agreement with each pain 4. and the cal monitoring. alter. NUMBER 4 49 . its duration. but. surgery. the specimen should be has the right to require urine drug screens at regular collected in the practice. pharmacist. which was prescribed. or otherwise distribute medi- patient. physical therapy. if at all possible. to attempt before beginning the drug regimen. not at the testing laboratory. without the provider’s approval. evant specialist (eg. current regimen. These alternatives should be explored periodically with each pain patient. Unfortunately. 1. or announced to the patient. and psychological cation that would benefit the patient. The patient should be excluded from treatment if: patient that specifies how the treatment will be handled. neurologist) for each pain patient to ascertain whether there are any therapies other 6. A requirement that the pain patient may not seek care which was prescribed. A requirement that the pain patient conform to • He or she refuses to take the urine drug screen. 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. 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. 2013) native therapies that have been attempted. including urine drug screenings for each patient may not give. steroid injections. a regularly scheduled visit. Patients must sign the agreement mentioned in #1 This case was ripe for decision on motions to dismiss. the treatment regimen and keep all scheduled • He or she is taking pain medication other than that appointments. Acknowledgment by the pain patient that the provider are reliable. 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. This practice needs to be coordi- nated with the testing laboratory to ensure that the results 5. The agreement should include any other provisions that may be more appropriate for the patient. to determine whether the patient is conforming to medical screening the outlined treatment plan. If the provider is going to prescribe controlled sub- lowing elements into its intake process: stances. including urine drug screen. ED patients are entitled to only one emergency ing. to determine whether the patient might be weaned off of medication or switched to a medication 8. or the patient is not taking that 2.1002/jhrm AMERICAN SOCIETY FOR HEALTHCARE RISK MANAGEMENT • VOLUME 33. but a minimum of 2 to 4 has the right to check his/her prescription history times per year would probably be appropriate. define. The provider should decide 4. Requiring a consultative report from the pain patient’s current treating physician regarding the source of the United States v Gonzales-Ramos. so the following facts were as recited in the complaint. stimulations. neurologists) to ascertain ods including nerve blocks. FA C TS : 3.

Given §1395dd. 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. 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. 42 USC some patients are more sympathetic than others. it is entirely possible that Code §15657. Mr.1002/jhrm . 2011. which applies only if the defendant hospital knows that the patient has an Considering that some hospital personnel were concerned emergency medical condition.24(b) an actual knowledge condition. This is a favorable case for hospitals. it is likely that a prudent complaint did not allege that the hospital knew that layperson would have thought that he required assistance. and Medical Treatment and Labor Act (EMTALA). NUMBER 4 DOI: 10. and requests examina- also alleged that the hospital had a duty to screen Mr. … other than the an emergency medical condition existed. Torres’s alcohol withdrawal was not zures due to alcohol withdrawal and pneumonia. 50 JOURNAL OF HEALTHCARE RISK MANAGEMENT • VOLUME 33.m. the court granted the motions to dismiss a clinic. Torres’s alcohol withdrawal. tion or treatment for what may be an emergency medical Torres again when he was found in the parking lot. hence. treatment for Mr. The court Hospital at 3:30 p. 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.Michael Jene Torres was brought by ambulance to the Mr. 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. on the stabilization claims. 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. (Emphasis added) The court noted that the requirement to stabilize is 42 CFR § 489. Torres’s condition. based on the individual’s appearance or behavior. and the California Welfare and Institutions Mr. Torres was elderly or that he was found lying down and moaning in the hospital parking in the custody or control of others. where he stayed until 9:45 p. Accordingly. 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. 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). EMTALA to Mr. He also held that the plaintiff had failed to show that the complained of neck pain and severe shaking and sei. The court noted that the complaint stated that tion). ment. or has such a request made on his or her behalf. the individual— the examination was so cursory as to be defective. alleging that the screening was so defective as to violate that the individual needs emergency examination or treat- EMTALA. He went first to the hospital cafeteria. the next morning he was was no evidence that Mr. He was discharged at 7:30 p. The plaintiffs dedicated emergency department. supervisor allegedly said that “he was not our problem. on September 19. The court noted that the about Mr. He The court noted that the Welfare and Institutions Code was “forced” to leave the cafeteria at that time. with instructions to seek follow up care the next day at Consequently. At 7:00 a.m. Torres did not leave the hospital.m. 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.” and staff were told to call 911 if he needed help. 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. the court dismissed the counts believe. When asked what should be done for him. He was 49 years old. He intended to stabilize his condition. The condition. Torres had an emergency medical condition. as well as for negligence. motions to dismiss. Disparate treatment can be founded upon the disdain that the staff members have for the Did the hospital have a continuing duty under patient. The court dismissed lot. a nursing this claim. 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. sufficient evidence to overcome a motion to dismiss.m. but the dismissal was without prejudice. Mr. The court held that there “forced” to leave. Some patients are more difficult than others. emergency department (ED) at Santa Rosa Memorial there was no duty to stabilize his pneumonia. but also shows how important it is to ensure uniformity of treatment for all Suit was brought for violations of the Emergency patients.

1002/jhrm AMERICAN SOCIETY FOR HEALTHCARE RISK MANAGEMENT • VOLUME 33.com. No. are aware of the responsibilities that management and patient safety consulting firm. JD.west1203@yahoo. He can be the hospital has under EMTALA. not principal of West Consulting Services. West. MHA. this case should not be considered strong A BO U T TH E A U TH O R precedent on this issue. and the reader is encouraged to seek the assistance of counsel when addressing the issues raised by this Torres v Santa Rosa Memorial Hospital. John C. is the Hospitals need to ensure that all members of the staff. CPHRM. 2013) DOI: 10.Accordingly. PJH (ND Calif August 20. reached at john. an independent risk just those in the ED. DFASHRM. provide legal advice. NUMBER 4 51 . C 12–6364 column. To do less is to risk liti. This column does not gation and/or citation by CMS.

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