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                A recent decision by the Virginia Appellate Court has broadened the area of liability for hospitals under the Emergency Medical Treatment and Active Labor Act which was passed as part of the Consolidated Omnibus Budget Reconciliation Act, commonly known as COBRA in 1986.  The act which addresses the issue of "patient dumping" has been interpreted by many hospital to only apply to the transfer of indigent patients out of emergency rooms in private hospitals.  However, the court has broadened its scope to include patients who are already in the hospital setting.

                In this case a pregnant woman was admitted to the hospital with premature rupture of membranes.  Her condition was stabilized, however, several days later she became unstable and was transferred to another facility.   The court stated that patient dumping is "equally reprehensible, at any time a hospital determines that a patient's condition may result in substantial medical costs and the hospital transfers the patient because it fears it will not be paid for those expenses." 

                Hospitals commonly assumed that Cobra applied only to emergency room situations because the statute first states (a) that emergency room patients had to be screened for emergency medical conditions.  Hospitals assumed that the subsequent subparts applied only to emergency room situations.  However, the court has read those parts separately so as not to limit their application to the emergency room situation.  The statute goes on to state that a patient cannot be transferred or discharged unless (1) his condition has first been stabilized, or (2) in the case of transfers, the attending doctor and hospital certify the transfer is medically appropriate.

                In order to transfer or discharge a patient, that patient must be stable or the transfer appropriate and certified.  Stable means that no material deterioration of the patient's condition is likely, within reasonable medical probability, to result from the transfer of the individual from a facility.

                In order to certify the transfer of an unstable patient, the doctor must sign a certification stating that the benefits of the transfer outweigh the risks.  The transfer must also be "appropriate".  That means that (1) transportation equipment must be adequate; (2) transport personnel must be qualified; (3) receiving facility must have available space for the patient; (4) receiving facility must have qualified personnel; (5) the receiving facility must agree in advance to accept the patient and provide adequate treatment; and (6) the sending hospital must provide the receiving facility with copies of the patient's medical record.

                Clearly, if many courts give this broadened interpretation of the statute, the liability of the hospital will be greatly increased.  The hospitals are strictly liable, therefore, the patient need only show that there was a worsening of his/her condition as a result of the discharge or transfer.  Because the transfer must be appropriate, the courts have put the burden on the transferring hospital to ensure that the transport and receiving personnel and facilities are adequate.  A hospital may potentially be held strictly liable if the ambulance personnel are inadequate, i.e. if a nurse should have been sent with the ambulance, or if the patient required a specialist and that specialist was unavailable at the receiving facility.

                The extension of the statute may give plaintiffs' attorneys a new avenue to bring suits.  Not only does it extend the scope of the statute beyond the emergency room physician, it also places additional requirements on the transfer of patients.  This is a strict liability statute, therefore, there is no need to show negligence.  A mistake or omission in following the appropriate transfer or certification procedure may potentially result in liability.  In extending the scope of Cobra, the court has made it necessary for every physician, not just emergency room physicians, to be aware of the requirements of Cobra.

    COBRA Ant-Dumping Provisions

    by Attorney Frank E. Reardon

    June 1992