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You may be able to sue Hospitals under a little known Federal “malpractice” statute and collect more money.

You may be able to sue Hospitals under a little known Federal “malpractice” statute and collect more money.

Most people know that if a hospital makes a mistake that hurts them, they can sue the doctor or nurse or hospital in state court under state medical malpractice/ negligence laws. What most people, including many lawyers and doctors do not know is that you can also sue hospitals for failure to evaluate and/ or stabilize a medical condition that causes harm to the patient under a federal statute. The statute is commonly referred to as the Emergency Medical Treatment & Labor Act (EMTALA).

Why should anyone care about EMTALA?

1. EMTALA applies to almost all hospitals. (Any hospital participating in the Medicare/Medicaid program must abide by the rules set forth by EMTALA)

2. Expanded reach: you can sue most departments in a hospital that perform medical exams, not just the emergency room. Court cases and administrative regulations have expanded who can be sued under EMTALA.

3. There are no caps on pain and suffering damages like in many state medical malpractice laws. So you can potentially collect much more money on the EMTALA claim then with the state claim.

4. EMTALA does not require you to prove negligence, just that the doctor, nurse or hospital did not follow the exact requirements spelled out in the statute. This is called strict liability.

5. Not having to prove negligence saves money on expert fees which can run into hundreds of thousands of dollars and makes the case much easier to win.

6. The time to sue is 2 years after the incident in the hospital. So if the state claim time limit to sue has passed you can still sue under the federal EMTALA within 2 years.

7. Hospitals are afraid of this investigation: If a violation of the statute is alleged, the federal government comes into the medical facility and investigates not just the claimed violation, but any violation of any type from the statute. This gives the plaintiff lawyer great leverage with the hospital to settle both the state malpractice and federal EMTALA claims quickly and quietly.

8. If hospitals are in serious violation of the EMTALA statute and do not promptly fix the problem they can lose their Medicare eligibility, which means they cannot collect money from Medicare. This could close the hospital. Trust me, hospitals are more afraid of losing Medicare eligibility than your single EMTALA claim.

So now that we know the benefits of using the EMTALA statute along with state medical malpractice statutes, let’s look at exactly what obligations are placed on hospital personnel by the EMTALA. Remember, if the hospital does not follow the requirements of the statute, they are liable regardless of fault.

The Emergency Medical Treatment & Labor Act (EMTALA) places several obligations on a medical facility:

1. When a person comes into a medical facility and asks to be evaluated, the hospital must provide a medical screening examination (MSE) to determine if there is an emergency medical condition (EMC), including active labor. The hospital may not decide on treatment based on your ability to pay and may not delay treatment to your detriment because they want to prove you can pay, such as pre-authorization from private health insurance. Thus the statute puts your welfare above the pocketbook of the hospital. The statute requires the hospital to use the medical equipment on hand, such as xray, CAT scan, MRI, EMG, EKG equipment as part of the emergency medical screening (EMC) process. So if the hospital just figures you are ok without doing tests, they may be liable under EMTALA. EMTALA applies to any patient coming in to the hospital, not just indigent patients.

2. Once an emergency medical condition (EMC) is found, the hospital must provide stabilizing treatment, and if unable to stabilize, transfer to a facility that can stabilize.

3. Finally, hospitals with specialized capabilities or facilities (e.g., burn units, specialized cardiac care units) must accept transfer patients from other hospitals if the specialized hospital has the capacity to treat them. This provision of EMTALA stops reverse dumping, where specialized hospitals won’t take indigent patients from other hospitals.

Basically, the statue is designed to keep hospitals from dumping patients who cannot pay without figuring out if they are medically in danger and without stabilizing them first. Since the hospital can lose their Medicare participation, they take these issues very seriously.

Injury

Of course, you must show that you were injured by the hospital not performing the medical screening examination and or not stabilizing you before releasing you.

The EMTALA is a federal statute with teeth that allows you to sue a hospital for not taking care of you in your state of medical emergency. It should be used along with state malpractice law to ensure your maximum recovery and to force hospitals to do their job.

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