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:
The Supreme Court of Vermont noted that Mr. O’Brien’s
claims were for medical battery, not for medical negli-
gence, which is a simple claim for a touching without
consent. The court held that expert testimony is not
necessary to prove that someone was touched without his
consent.
The court also held that FAHC could not be held liable
for the alleged assault by the police officers. As a general
rule, a party cannot be held liable for an assault by anoth-
er person that was not foreseeable. Since it was not fore-
seeable that the police officers would assault Mr. O’Brien,
the hospital did not have a duty to prevent it.
The court reviewed the statutes of Vermont and noted
that the legislature had not enacted legislation to author-
ize a healthcare provider to draw blood for law enforce-
ment purposes and had not provided immunity for those
who do draw blood on behalf of law enforcement. It
noted that, for example, Illinois (see 625 Ill. Comp. Stat.
Ann. 5/11–500.1) and Pennsylvania (see 75 Pa. Cons.
Stat. Ann. § 3755) have enacted such legislation. In the
absence of enabling legislation, healthcare providers in
Vermont do not have the authority to draw blood for law
enforcement officers without the patient’s consent.
The court noted that while Mr. O’Brien did not object
when Nurse Synott drew his blood, Mr. O’Brien did not
overtly consent to it. Additionally, there was an issue, if
Mr. O’Brien did consent, whether he consented to the
blood draw for medical, as opposed to nonmedical, pur-
poses. At this stage of the proceedings, the court held that
that was an issue for the fact finder (ie, the jury) to decide.
Accordingly, the court affirmed the dismissal of the claim
regarding the failure to prevent the assault by the police
but reversed the battery claim as to the hospital and Nurse
Synott.
As an aside, and possibly unbeknownst to this court, the
Supreme Court of the United States has recently ruled on
this issue. Missouri had a law that allowed law enforcement
to force a person suspected of driving while intoxicated
to undergo a blood alcohol test without first obtaining a
search warrant. The Supreme Court held that this violated
the Fifth Amendment to the US Constitution. Although
the court recognized that alcohol in the blood is evanescent
evidence that will dissipate with time, that did not indicate
that the circumstances were so exigent that an officer was
not required to obtain a warrant before requiring the col-
lection of blood without consent. Missouri v McNeely, No.
11–1425 (US April 17, 2013). Accordingly, the Supreme
Court found the Missouri statute unconstitutional.
RI SK MAN AG EMEN T C ON SIDER ATI O N S :
While medical battery cases are not usually high value
cases, this is nonetheless a case to which risk managers
DOI: 10.1002/jhrm AMERICAN SOCIETY FOR HEALTHCARE RISK MANAGEMENT • VOLUME 33, NUMBER 4
should pay attention. Each patient has the right to deter-
mine what will and will not be done to his/her body. To
perform any physical touching without the patient’s con-
sent disrespects the patient’s autonomy and may subject
the provider to liability.
While the US Supreme Court’s decision on this matter
is more definitive on this issue than Vermont’s, the deci-
sion in McNeely is congruent with this decision. McNeely
reinforces the need for consent prior to drawing blood for
a blood alcohol test. The basic rule is that all touching
requires some level of consent. Even if the state legislature
has specifically authorized an act (such as drawing blood
on request of law enforcement), McNeely would indicate
that, in the absence of a warrant, the hospital should not
perform the act without obtaining the patient’s consent.
If the officer has obtained a warrant to have the blood
drawn, the most prudent course of action would be to
confer with hospital legal counsel before proceeding.
Legal blood alcohol tests are problematic from the per-
spective of the Emergency Medical Treatment and Labor
Act (EMTALA), 42 USC § 1395dd, as well. The Centers
for Medicare and Medicaid Services (CMS) has stated:
Attention to detail concerning blood alcohol testing (BAT) in
the ED is instrumental when determining if a MSE [medical
screening examination] is to be conducted. If an individual
is brought to the ED and law enforcement personnel request
that emergency department personnel draw blood for a BAT
only and does not request examination or treatment for a
medical condition, such as intoxication and a prudent lay
person observer would not believe that the individual needed
such examination or treatment, then the EMTALA’s screen-
ing requirement is not applicable to this situation because
the only request made on behalf of the individual was for
evidence. However, if for example, the individual in police
custody was involved in a motor vehicle accident or may
have sustained injury to him or herself and presents to the
ED a MSE would be warranted to determine if an EMC
exists. (Emphasis added)
CMS, State Operations Manual Appendix V—Interpretive
Guidelines—Responsibilities of Medicare Participating
Hospitals in Emergency Cases, 42 CFR § 489.24(c)
If law enforcement officers bring a patient to the ED for
a blood alcohol test, ED personnel would be well advised
to try to determine whether the patient may have suffered
an injury (eg, fall, motor vehicle accident) or may have a
medical condition (eg, alcohol toxicity) that requires an
emergency screening examination. This may also apply to
situations in which the police bypass the ED and take the
person directly to the laboratory to have the blood drawn.
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
screening examination] by or on behalf of the individual,
a request on behalf of the individual will be considered to
exist if a prudent layperson observer would believe, based
45
on the individual’s appearance or behavior, that the indi-
vidual needs emergency examination or treatment.”)
Each hospital with an ED should have a comprehensive
policy on drawing blood alcohol tests at the request of
law enforcement. This policy should be applicable to all
departments and units of the hospital, including, as in
this case, the PACU.
O’Brien v Synott, No. 2012–164 (Vt May 17, 2013)
E M E RGEN C Y MEDIC IN E
Failure to follow screening protocol may violate
EMTALA
FA CT S:
Hazel Cruz-Vazquez was in her third trimester of her first
pregnancy when she presented to the emergency depart-
ment (ED) at Mennonite General Hospital (MGH) on
January 4, 2007. She complained of a vaginal discharge
and blood spotting, but denied dysuria, pelvic pain, or
fever. She stated that she felt fetal movement during
the visit. She was evaluated by Dr. Brenda Torres-Perez
(Dr. Torres), who performed a pelvic examination but did
not perform any other tests.
Approximately 40 minutes after her arrival, Dr. Torres
consulted with Dr. Eduardo Gomez-Torres (Dr. Gomez),
Ms. Cruz-Vazquez’s obstetrician. Dr. Gomez advised Dr.
Torres to administer 0.25 mg of Brethine and 50 mg of
Vistaryl. He further advised Dr. Torres to discharge Ms.
Cruz-Vazquez with instructions to follow up with him in
his office at 8:00 a.m. the next morning. Dr. Torres fol-
lowed Dr. Gomez’s instructions.
Dr. Gomez examined Ms. Cruz-Vazquez the next morn-
ing. She was still complaining of spotting. Upon examina-
tion, Dr. Gomez found that her cervix was dilated to 7
centimeters and the fetus was floating in a breech posi-
tion. He diagnosed an incompetent cervix. He arranged
for transfer to another hospital, where a cesarean section
was performed. The baby was alive at delivery, but died
on January 7, 2007, of causes that were not specified in
this opinion.
At the time in question, MGH had a protocol in place
for screening pregnant women in their third trimester
who were experiencing vaginal bleeding. This protocol
indicated that a speculum examination be done, that an
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
and that Dr. Torres did not follow it.
Ms. Cruz-Vazquez brought suit under the Emergency
Medical Treatment and Labor Act (EMTALA), 42 USC
§1395dd, for failing to screen her properly and for failing
46 JOURNAL OF HEALTHCARE RISK MANAGEMENT • VOLUME 33, NUMBER 4
to stabilize her emergency medical condition prior to dis-
charging her. The case followed a tortured path, including
trial and a previous appeal. On remand, the trial court
dismissed the case on defendants’ motion for summary
judgment, holding that the plaintiff had failed to prove an
EMTALA claim and that EMTALA did not create a fed-
eral cause of action for medical negligence. This appeal to
the US Court of Appeals for the First Circuit ensued.
ISSUES:
Did the plaintiff ’s claim assert a cause of action for dis-
parate screening or only for faulty screening? Did the
trial court have jurisdiction under EMTALA to hear
the case?
A N A LY S I S :
The court of appeals noted that the trial court had
confused the issue of jurisdiction with issues of merit.
Jurisdiction is conferred on a federal court by, among
other things, a cause of action arising under a federal stat-
ute, such as EMTALA. The court assessed the case as if it
had been dismissed on a motion for summary judgment,
rather than on a challenge to jurisdiction. A motion for
summary judgment is granted only in situations in which
there are no genuine issues of material fact for the fact
finder to decide. A fact is material if it might be determi-
native in reaching an outcome. The court held that the
plaintiff had alleged a cause of action under EMTALA;
hence, the trial court had jurisdiction to hear the case.
The court noted that a medical screening examination
is “appropriate” if it is reasonably intended to determine
whether an emergency medical condition exists. The pro-
tocol was evidence of what MGH believed an appropri-
ate screening should be in the case of women presenting
in their third trimester with vaginal bleeding. The court
cited other cases in which the failure to follow a protocol,
when presenting complaints would trigger the protocol,
was considered the touchstone of a disparate screen-
ing claim under EMTALA. See, eg, Battle v Memorial
Hospital, 228 F3d 544 (5th Cir 2000); Summers v Baptist
Medical Center Arkadelphia, 91 F3d 1132 (8th Cir 1996).
The court held that the fact that Dr. Torres was following
the advice of Dr. Gomez did not excuse her failure to fol-
low the screening protocol. In short, the court of appeals
held that there was sufficient evidence for a jury to find
that the screening was disparate.
Consequently, the First Circuit reversed the dismissal of
the case and remanded it for further proceedings.
R I S K MA N A GE ME N T C O N S ID ER AT I O NS :
As a general rule, screening protocols are desirable for an
elementary purpose: to remove differences in the ways
in which patients with similar presenting conditions are
screened by different providers. The implementation of
DOI: 10.1002/jhrm
a protocol, and following the protocol in every case in
which the patient presents with a condition governed
by the protocol, is strong evidence that a given patient’s
medical screening examination was not disparate. The
difficulty comes in making certain that the protocol is fol-
lowed in all cases.
The first hurdle is ensuring that every member of the
emergency medical staff, or any other members of the
medical staff who may be involved in screening patients,
approves of the protocol and agrees to follow it in all cases
in which it is relevant. If the medical staff members do
not agree to follow the protocol, the hospital might be
better off without one. That, however, leaves the hospital
at the mercy of conflicting experts.
The second hurdle is ensuring that the providers actually
follow the protocol in each case in which the triggering
symptoms are identified. This could be a performance
improvement indicator that can be tracked by provider
and reported back to the medical staff. It often spurs
performance improvement when providers know that
someone is watching. If this course is followed, the pro-
vider should be expected to document a rationale for not
following the protocol in a given case, if the protocol was
applicable. This may help to alleviate providers’ concerns
that the hospital is requiring “cookbook” medicine.
As this case indicates, EMTALA can be violated in situa-
tions where the provider honestly felt that she was doing
the right thing. There are many EMTALA cases in which
the real allegation was that the screening was negligent
rather than disparate, but this is a case in which the
screening was probably not negligent, but was disparate.
Cruz-Vazquez v Mennonite General Hospital, No. 11–2297
(1st Cir May 29, 2013)
ME D I CAL MALPRAC TIC E
Hospital not liable for failing to stop intoxicated
patient from leaving
FA CT S:
Kevin Kowalski was brought to St. Francis Hospital’s
emergency department (ED) in an intoxicated state. He
was seeking admission to the hospital’s medical detoxifica-
tion unit. He had been admitted previously with suicidal
ideations, but there was no evidence that he was suicidal
on this occasion. He showed obvious signs of intoxication,
and his blood alcohol level was 0.369%. He was alert and
was able to walk unassisted. He was examined in the ED
by Dr. Chintapalli. He was accepted for admission to the
detoxification unit.
Mr. Kowalski was in the ED for a total of 4 hours. He
was still awaiting transfer to the detoxification unit
DOI: 10.1002/jhrm AMERICAN SOCIETY FOR HEALTHCARE RISK MANAGEMENT • VOLUME 33, NUMBER 4
when he pulled his IV from his arm and announced
his intention to leave by taxi, rather than be admit-
ted to the detoxification unit. The nurse urged him to
call a friend to pick him up and then left to tell Dr.
Chintapalli that the patient wished to leave. When she
returned to Mr. Kowalski’s room, he was gone. The nurse
asked Dr. Chintapalli if she should call the police, but
Dr. Chintapalli told her not to.
Mr. Kowalski apparently left the hospital unescorted.
Approximately 1 to 2 hours after his departure, he was
struck by a car and injured.
Mr. Kowalski brought suit against the hospital and
Dr. Chintapalli for negligence and medical malpractice.
The trial court denied the defendants’ motion for sum-
mary judgment. The appellate court reversed the decision
of the trial court, and this appeal to the Court of Appeals
for New York (New York’s highest court) ensued.
ISSUE:
May the defendants be held liable for not preventing
Mr. Kowalski from leaving the hospital?
A N A LY S I S :
The court noted that, in a free society, a person is free to
come and go as he pleases, subject to limited exceptions.
These exceptions include the situation where the patient
is a danger to himself or others, and a healthcare provider
is authorized to detain him. There is also an exception in
New York for severely intoxicated persons whose intoxi-
cation constitutes a dangerous condition. In this latter
case, a healthcare provider may be entitled to provide
emergency care against the patient’s will. See NY Mental
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.
Kowalski against his will; hence, it had no duty to hold
him against his will.
The Court of Appeals affirmed the reversal of the trial
court’s denial of the motion for summary judgment and
dismissed the action.
R I S K MA N A GE ME N T C O N S ID ER AT I O NS :
It is often the case that healthcare providers adopt a
paternalistic approach to patient care and seek to pre-
vent any harm to their patients. While such an approach
is clearly laudable, there are limitations that must be
respected. Unless a situation exists that, under state law,
would allow a patient to be prevented from leaving, and
state law addresses this particular situation, competent
patients are free to leave and they are free to refuse care,
even life-sustaining care. As the Court of Appeals aptly
noted, if there is no right under state law, there is no
duty.
47
This case indicates that a careful review of state law on
this subject should be undertaken if one has not previous-
ly been done. State law may vary on this issue. Hospital
staff members, particularly in the ED, but possibly else-
where in the facility, need to know their limitations when
it comes to detaining patients against their will. Absent a
reason to detain them pursuant to state law, the general
rule is that they can leave.
Another thorny issue indirectly presented by this case is
whether to call the police when an obviously intoxicated
patient wants to leave the ED. Policies need to be developed
to answer the issues presented by this dilemma. Should
the police be called in all cases? Should the police be called
when it is clear that the patient may commit an offense,
such as driving under the influence? How much informa-
tion can be given to the police without violating the Health
Insurance Portability and Accountability Act (HIPAA)
or state law on the confidentiality of health information?
While the fact that a person is visibly intoxicated may not
be protected health information, the level of alcohol in the
patient’s blood may be. Many of these issues may depend
on the particular facts of the situation, but it is important
that healthcare providers have guidance when confronted
with this issue at 2:00 a.m. on a Sunday morning.
Kowalski v St. Francis Hospital & Health Centers, 2013 NY
Slip Op 04756 (NY June 26, 2013)
CRI M I N AL LAW
Physician receives maximum sentence for running
a “pill mill”
FA CT S:
Fernando Gonzales-Ramos, MD, maintained a practice
as a primary care physician at a Veterans Administration
facility in El Paso, Texas, but he also operated an office in
Logan, West Virginia. He commuted periodically between
the 2 locations. The location in Logan was run, appar-
ently, primarily to provide prescriptions for Schedule II
and Schedule III medications.
According to an affidavit attached to the criminal com-
plaint, the office in Logan was staffed by a nurse/recep-
tionist, a bodyguard, and an armed security guard. The
location did not have running water, nor did it have the
equipment one would normally expect in a medical office,
such as scales, examination tables, or stethoscopes. On
the day that a search warrant was executed, the above staff
members were in the office, but Dr. Gonzales-Ramos was
not. On the day in question, law enforcement officials
staking out the office sent a cooperating person into the
establishment. In exchange for $450 in cash, she received
a prescription for hydrocodone, a Schedule III controlled
substance. She was in the building less than 3 minutes.
She did not see Dr. Gonzales-Ramos.
48 JOURNAL OF HEALTHCARE RISK MANAGEMENT • VOLUME 33, NUMBER 4
The nurse/receptionist told investigators that she would
fill out the prescription and “progress notes” in the
patient’s record, and then send the materials to Dr.
Gonzales-Ramos in Texas for his signature. When he came
to Logan on the next occasion, he would bring the signed
prescriptions and the signed progress notes. The investiga-
tors also recovered prewritten prescriptions in the records
in the office.
A criminal complaint was brought against Dr. Gonzales-
Ramos on March 3, 2013. Dr. Gonzales-Ramos pled
guilty to the criminal complaint on April 23, 2013. A
sentencing hearing was scheduled for September 3, 2013.
ISSUE:
Should Dr. Gonzales-Ramos be sentenced to the mini-
mum sentence (57 months), the maximum sentence
(71 months), or to some period of incarceration in
between?
A N A LY S I S :
The district court delivered its sentencing opinion and
order in open court on September 3, 2013, and its ration-
ale was not disclosed in the papers filed with the court
clerk. The court sentenced Dr. Gonzales-Ramos to 71
months in federal prison, the maximum sentence under
the federal guidelines.
R I S K MA N A GE ME N T C O N S ID ER AT I O NS :
Providers with the authority to prescribe controlled sub-
stances need to be careful when doing so. Law enforce-
ment officials are able to monitor prescribing practices
for “overprescribing.” Unfortunately, a particular chronic
pain patient’s response to analgesics may be different from
another patient’s response, leading to what may be consid-
ered “overprescribing” that is actually within the bounds
of reasonableness under the circumstances. If providers are
going to prescribe Schedule II or Schedule III drugs for
their patients, there are certain precautions that they need
to take.
The obvious first step is to actually enter into an objective-
ly justifiable provider-patient relationship. This involves, at
a bare minimum, examining the patient and taking a his-
tory. The object should be to determine a treatment regi-
men that conforms to standard practices in pain manage-
ment, rather than just hand out medication. The provider
should maintain an office that has the requisite equipment
and supplies necessary to run a medical practice.
The Journal of Pain has published guidelines for provid-
ers in this area. See Chu, R., et al., Clinical Guidelines
for the Use of Chronic Opioid Therapy in Chronic
Noncancer Pain, Journal of Pain 10(2): 113–130. The
steps that a prudent provider should follow may include
the following.
DOI: 10.1002/jhrm
The provider should have an agreement with each pain
patient that specifies how the treatment will be handled.
The agreement should consist of:
1. A requirement that the pain patient conform to
the treatment regimen and keep all scheduled
appointments.
2. A requirement that the pain patient may not seek care
or treatment from another provider for the purposes of
pain management while receiving treatment from the
provider, without the provider’s approval.
3. A requirement that the pain patient may receive only
sufficient medication to manage his/her pain, and the
patient may not give, sell, or otherwise distribute medi-
cations to any other persons under any circumstances.
4. Acknowledgment by the pain patient that the provider
has the right to check his/her prescription history
through the state board of pharmacy database (if avail-
able) on a regular basis.
5. Acknowledgment by the pain patient that the provider
has the right to require urine drug screens at regular
intervals to assure that medications are being taken and
that the patient is not taking any pain medications that
were not prescribed by the provider.
6. Acknowledgment by the patient that the provider has
the right to require periodic examinations by relevant
specialists (eg, orthopedists, neurologists) to ascertain
whether there are any therapies other than pain medi-
cation that would benefit the patient.
7. Acknowledgment by the pain patient that the provider
may terminate the relationship with the patient if
any of the terms and conditions of the agreement are
violated.
8. The agreement should include any other provisions
deemed necessary after a review by legal counsel.
The provider should have a standardized intake process
for pain patients. It should consider incorporating the fol-
lowing elements into its intake process:
1. Requiring a consultative report from the pain patient’s
current treating physician regarding the source of the
patient’s pain, its duration, current regimen, alter-
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.
2. Physiological monitoring, including urine drug screen-
ing, to determine whether the patient is conforming to
the outlined treatment plan, and only to the outlined
treatment plan.
3. Patients must sign the agreement mentioned in #1
above.
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4. The patient should be excluded from treatment if:
• He or she refuses to sign or abide by the agreement.
• He or she refuses to take the urine drug screen.
• He or she is taking pain medication other than that
which was prescribed, or the patient is not taking that
which was prescribed.
• There is a nondrug treatment modality that may bet-
ter serve the patient’s needs or that would be prudent
to attempt before beginning the drug regimen.
The provider should have a regular schedule of physiologi-
cal monitoring, including urine drug screenings for each
patient, the schedule for which should not be disclosed
or announced to the patient. The provider should decide
on the frequency of the screens, but a minimum of 2 to 4
times per year would probably be appropriate. The patient
should be asked for a urine specimen during the course of
a regularly scheduled visit. This practice needs to be coordi-
nated with the testing laboratory to ensure that the results
are reliable, but, if at all possible, the specimen should be
collected in the practice, not at the testing laboratory.
The provider should regularly schedule a visit with a rel-
evant specialist (eg, orthopedist, neurologist) for each pain
patient to ascertain whether there are any therapies other
than pain medication that would benefit the patient.
Many kinds of pain have become treatable through meth-
ods including nerve blocks, physical therapy, electrical
stimulations, surgery, steroid injections, and psychological
support. These alternatives should be explored periodically
with each pain patient.
The provider should regularly review the patient’s treat-
ment plan, possibly with the assistance of a registered
pharmacist, to determine whether the patient might be
weaned off of medication or switched to a medication
that may be more appropriate for the patient.
Unfortunately, the distinction between a legitimate pain
management practice and a “pill mill” may be difficult to
define. If the provider is going to prescribe controlled sub-
stances, he or she must always practice within the scope of
legitimate medical practice.
United States v Gonzales-Ramos, Case No. 2:13-cr-00105
(SD W Va September 3, 2013)
E ME R GE N C Y ME D I C I N E
ED patients are entitled to only one emergency
medical screening
FA C TS :
This case was ripe for decision on motions to dismiss,
so the following facts were as recited in the complaint.
49
Michael Jene Torres was brought by ambulance to the
emergency department (ED) at Santa Rosa Memorial
Hospital at 3:30 p.m. on September 19, 2011. He
complained of neck pain and severe shaking and sei-
zures due to alcohol withdrawal and pneumonia. He
was diagnosed with alcohol withdrawal and was given
1 mg of lorazepam. He was discharged at 7:30 p.m.
with instructions to seek follow up care the next day at
a clinic.
Mr. Torres did not leave the hospital. He went first to
the hospital cafeteria, where he stayed until 9:45 p.m. He
was “forced” to leave the cafeteria at that time. He was
later found seated on the floor in a hallway and was again
“forced” to leave. At 7:00 a.m. the next morning he was
found lying down and moaning in the hospital parking
lot. When asked what should be done for him, a nursing
supervisor allegedly said that “he was not our problem,”
and staff were told to call 911 if he needed help. Mr.
Torres died in the parking lot later that morning. He was
49 years old.
Suit was brought for violations of the Emergency
Medical Treatment and Labor Act (EMTALA), 42 USC
§1395dd, and the California Welfare and Institutions
Code §15657, as well as for negligence. The present
decision is the trial court’s opinion on defendants’
motions to dismiss.
I SSUE S:
Did the hospital have a continuing duty under
EMTALA to Mr. Torres after he was discharged from
the ED? Was his treatment in violation of the Welfare
and Institutions Code?
ANA LYSIS:
The court noted that there are 2 prongs to EMTALA:
the requirement to screen and the requirement to sta-
bilize. The court noted that the complaint stated that
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
an emergency medical condition existed. The plaintiffs
also alleged that the hospital had a duty to screen Mr.
Torres again when he was found in the parking lot. The
court noted that the plaintiffs provided no authority for
the duty to screen a second time, and that they failed
to allege when this duty arose (in the cafeteria or in the
parking lot). Accordingly, the court dismissed the counts
alleging that the screening was so defective as to violate
EMTALA.
The court noted that the requirement to stabilize is
an actual knowledge condition, which applies only if
the defendant hospital knows that the patient has an
emergency medical condition. The court noted that the
complaint did not allege that the hospital knew that
50 JOURNAL OF HEALTHCARE RISK MANAGEMENT • VOLUME 33, NUMBER 4
Mr. Torres had an emergency medical condition; hence,
there was no duty to stabilize his pneumonia. The court
also held that the plaintiff had failed to show that the
treatment for Mr. Torres’s alcohol withdrawal was not
intended to stabilize his condition. The court felt that the
plaintiffs’ allegations were conclusory and failed to adduce
sufficient evidence to overcome a motion to dismiss.
Consequently, the court granted the motions to dismiss
on the stabilization claims, but the dismissal was without
prejudice.
The court noted that the Welfare and Institutions Code
§15657 applies to the elderly or dependent adults in the
custody or control of others. The court held that there
was no evidence that Mr. Torres was elderly or that he was
in the custody or control of others. The court dismissed
this claim.
R I S K MA N A GE ME N T C O N S ID ER AT I O NS :
This is a favorable case for hospitals, but also shows how
important it is to ensure uniformity of treatment for all
patients. Some patients are more difficult than others, and
some patients are more sympathetic than others. Given
Mr. Torres’s alcohol withdrawal, it is entirely possible that
the staff members in the ED wanted to discharge him
from the hospital without a full and complete workup.
This is the kind of situation in which all staff members
in the ED must remain cognizant of their responsibilities
under EMTALA. Disparate treatment can be founded
upon the disdain that the staff members have for the
patient.
It is interesting that the plaintiffs did not present any
authority for the second screening. The regulations clearly
define “comes to the emergency department” (which trig-
gers the obligations of EMTALA) as:
Comes to the emergency department means, with respect to
an individual who is not a patient (as defined in this sec-
tion), the individual—
***
(2) Has presented on hospital property, … other than the
dedicated emergency department, and requests examina-
tion or treatment for what may be an emergency medical
condition, or has such a request made on his or her behalf.
In the absence of such a request by or on behalf of the
individual, a request on behalf of the individual will be
considered to exist if a prudent layperson observer would
believe, based on the individual’s appearance or behavior,
that the individual needs emergency examination or treat-
ment. (Emphasis added)
42 CFR § 489.24(b)
Considering that some hospital personnel were concerned
about Mr. Torres’s condition, it is likely that a prudent
layperson would have thought that he required assistance.
DOI: 10.1002/jhrm
Accordingly, this case should not be considered strong
precedent on this issue.
Hospitals need to ensure that all members of the staff, not
just those in the ED, are aware of the responsibilities that
the hospital has under EMTALA. To do less is to risk liti-
gation and/or citation by CMS.
Torres v Santa Rosa Memorial Hospital, No. C 12–6364
PJH (ND Calif August 20, 2013)
DOI: 10.1002/jhrm AMERICAN SOCIETY FOR HEALTHCARE RISK MANAGEMENT • VOLUME 33, NUMBER 4
A BO U T TH E A U TH O R
John C. West, JD, MHA, DFASHRM, CPHRM, is the
principal of West Consulting Services, an independent risk
management and patient safety consulting firm. He can be
reached at john.west1203@yahoo.com. This column does not
provide legal advice, and the reader is encouraged to seek the
assistance of counsel when addressing the issues raised by this
column.
51
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