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  • Taking Chances2:24

            In a case that observers had billed as the national test case on patient dumping, the Fifth Circuit Court of Appeals last month affirmed an administrative law judge's imposition of a $20,000 fine on a physician charged with violating the anti-dumping provisions of the Emergency Medical Treatment and Active Labor Act.  In Burditt v. U.S. Dept. of Health and Human Services, (CA 5, No. 90-4611, July 9, 1991), 2 BNA Medicare Report 221, 60 USLW 2075, the court held that proof of an improper or non-medical motive for transferring a patient is not required to prove a violation of the Act.

            The physician in Burditt, an obstetrician on call for an emergency department, ordered the transfer of a severely hypertensive patient in active labor to another hospital, located 170 miles and a three-hour drive away.  The physician's refusal to treat the patient was based on her high-risk condition.  The woman gave birth in the ambulance while en route to the second hospital.  The ambulance then returned to the original hospital, where the physician again refused to treat her.

            The United States Department of Health and Human Services sought a civil penalty against the obstetrician, arguing that as the responsible physician for the hospital, he knowingly violated the Act by transferring an unstabilized patient who was in active labor and suffering from an emergency condition, by falsely certifying that the benefits of transfer outweighed the risks to the patient, and by failing to ensure adequate transport.  The physician defended by arguing that he was not the responsible physician, since he did not have a contract with the hospital.  The case was tried before an administrative law judge.  The trial was the first under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), of which the Emergency Medical Treatment and Active Labor Act is a part.

            The administrative law judge ruled that the physician did violate the patient dumping prohibitions of COBRA.  The judge rejected the physician's defense, holding that a physician is under contract for purposes of COBRA when providing emergency department services as a condition of maintaining staff privileges.  The judge stated that whether medical staff by-laws constitute a contract under a particular state's law is irrelevant to the interpretation of a federal statute.  The judge imposed a $20,000 civil penalty.  Inspector General v. Burditt, No. C-42 (HHS Departmental Appeals Board, Civil Remedies Div., July 28, 1989).

            On appeal to the circuit court, the issue of intent was argued.  The court held that proof of an improper or non-medical motive for transferring a patient is not required to prove a violation of the Act.  Thus, even though Dr. Burditt may have sincerely believed that the hospital to which the woman presented was incapable of providing appropriate care, and that she would be better served at the second hospital, his failure to weigh the medical risks of transfer against the benefits of admission before transferring the woman and his failure to stabilize the patient were violative of the Act.  The Act specifically forbids the transfer of women in active labor or patients with emergency medical conditions without such a risk-benefit analysis and stabilization.

            The court rejected the physician's argument on appeal that the fine constituted a public taking of his services without just compensation in violation of the Fifth Amendment, and upheld the $20,000 fine.  The maximum penalty provided for by COBRA under such circumstances is $25,000.

            All hospitals that participate in the federal Medicare program are subject to the anti-dumping provisions of COBRA, 42 U.S.C. §1395dd.  Under those provisions, a hospital must examine individuals who come to its emergency department seeking treatment to determine if the patient is in active labor or is suffering from an emergency medical condition, defined by statute as an illness so severe that lack of treatment will put the patient's health in serious jeopardy.  If an emergency condition or active labor exists, the hospital must treat the patient until the condition is stabilized.  The sanctions for violation of the act are severe for both the hospital, which faces the potential termination of its Medicare provider agreement, and the so-called responsible physician, who may be fined up to $25,000 for a violation.  Of course, both the hospital and the physician guilty of violating COBRA are also subject to separate civil actions under applicable state laws.

            The Burditt case indicates the resolve of the HHS regarding the serious issue of patient dumping.  Further trials can be expected.  The case also highlights the importance of careful assessment of a potential admittee's condition.  A transfer order should not be given prior to both a detailed and documented consideration of the risks of the transfer and a stabilization of the patient.  As the court in Burditt emphasized, even a good faith motive for transfer, such as a sincere belief that the patient may be better off elsewhere, is no defense to a transfer made before these things are done.  Finally, if a transfer is to be made, the transferring hospital must be certain to ensure that the patient's transport to the transferee facility is adequate in terms of both staff and equipment. 

Proof of Improper Motivate Not Necessary to Prove Violation of Anti-Dumping Act

by Attorney Frank E. Reardon    August 1991