No. 97-53
In the Supreme Court of the United States
OCTOBER TERM, 1997
JANE M. ROBERTS, GUARDIAN FOR
WANDA Y. JOHNSON, PETITIONER
v.
GALEN OF VIRGINIA, INC., FORMERLY DBA HUMANA HOSPITAL-UNIVERSITY OF LOUISVILLE,
DBA LOUISVILLE HOSPITAL
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER
SETH P. WAXMAN
Solicitor General
Counsel of Record
FRANK W. HUNGER
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
JAMES A. FELDMAN
Assistant to the Solicitor General
BARBARA C. BIDDLE
CARL E. GOLDFARB
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether a claim brought under the private cause of action provision of the
Emergency Medical Treatment and Labor Act, 42 U.S.C. 1395dd(d), requires
proof of an im- proper motive as a prerequisite for recovery.
TABLE OF CONTENTS
Page
Interest of the United States
1
Statement
2
Summary of argument
9
Argument:
A violation of 42 U.S.C. 1395dd(b) occurs when a
covered entity fails to stabilize a patient before
transfer, regardless of the motive with which the
entity acted
11
A. The text of EMTALA makes clear that
establishing a violation does not require
proof of motive
11
B. The legislative history of EMTALA supports
the conclusion that a hospital's obligations
under Section 1395dd(b) do not turn on the
motive with which the hospital acts
18
C. The Secretary of Health and Human Services
has taken the position that "improper motive"
is not an element of an EMTALA violation
23
D. There is nothing in the "appropriate medical
screening examination" provision of EMTALA,
42 U.S.C. 1395dd(a), that supports an improper
motive requirement in Section 1395dd(b)
24
Conclusion
29
TABLE OF AUTHORITIES
Cases:
American Nat'l Red Cross v. S.G., 505 U.S. 247
(1992)
18
Board of Educ. of the Hendrick Hudson Cent.
Sch. Dist. v. Rowley, 458 U.S. 176 (1982)
25
Burditt v. HHS, 934 F.2d 1362 (5th Cir. 1991)
23
Cases-Continued:
Page
Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984)
23
Cleland v. Bronson Health Care Group, Inc.,
917 F.2d 266 (6th Cir. 1990)
6, 7, 10, 24
Correa v. Hospital San Francisco, 69 F.3d 1184
(1st Cir. 1995), cert. denied, 517 U.S. 1136 (1996)
2, 26
Eberhardt v. City of Los Angeles, 62 F.3d 1253 (9th
Cir. 1995)
26
Gatewood v. Washington Healthcare Corp., 933
F.2d 1037 (D.C. Cir. 1991)
20, 25
Holcomb v. Monahan, 30 F.3d 116 (11th Cir.
1994)
26
Inter-Modal Rail Employees Ass'n v. Atchison,
T. & S.F. Ry., 117 S. Ct. 1513 (1997)
12
Martin v. OSHRC, 499 U.S. 144 (1991)
23
Oncale v. Sundowner Offshore Servs., Inc.,
118 S. Ct. 998 (1998)
19
Power v. Arlington Hosp. Ass'n, 42 F.3d 851
(4th Cir. 1994)
25
Repp v. Anadarko Mun. Hosp., 43 F.3d 519 (10th
Cir. 1994)
26
Summers v. Baptist Med. Cent. Arkadelphia,
91 F.3d 1132 (8th Cir. 1996)
25
United States v. Gonzales, 117 S. Ct. 1032
(1997)
11
United States v. Wiltberger, 18 U.S. (5 Wheat.) 76
(1820)
11-12
Vargas v. Del Puerto Hosp., 98 F.3d 1202 (9th
Cir. 1996)
18
Vickers v. Nash Gen. Hosp., Inc., 78 F.3d 139
(4th Cir. 1996)
26
Walters v. Metropolitan Educ. Enters., 117
S. Ct. 660 (1997)
16
Statutes and regulations:
Page
Consolidated Omnibus Budget Reconciliation Act of
1985, Pub. L. No. 99-272, Tit. IX, § 9121(b), 100
Stat. 164
19
Emergency Medical Treatment and Active Labor
Act, 42 U.S.C. 1395dd et seq.
1, 6, 8
42 U.S.C. 1395dd(a)
2, 8, 14, 24, 25, 27, 28, 29
42 U.S.C. 1395dd(b)
passim
42 U.S.C. 1395dd(b)(1)(A)
3, 9, 14
42 U.S.C. 1395dd(c)
3, 4, 5, 12
42 U.S.C. 1395dd(c)(1)(A)(ii)
16
42 U.S.C. 1395dd(c)(2)
4
42 U.S.C. 1395dd(d)(1)
1
42 U.S.C. 1395dd(d)(1) (1988)
16
42 U.S.C. 1395dd(d)(1)(A)
4
42 U.S.C. 1395dd(d)(1)(B)
4
42 U.S.C. 1395dd(d)(2)
1
42 U.S.C. 1395dd(d)(2) (1988)
17
42 U.S.C. 1395dd(d)(2)(A)
4, 18
42 U.S.C. 1395dd(d)(2)(B)
4, 18
42 U.S.C. 1395dd(d)(3)
17
42 U.S.C. 1395dd(e)(1)(A)
3, 9, 15
42 U.S.C. 1395dd(e)(1)(B)
3, 15
42 U.S.C. 1395dd(e)(2)
2
42 U.S.C. 1395dd(e)(3)(A)
3, 9, 13, 29
42 U.S.C. 1395dd(e)(3)(B)
3, 13
42 U.S.C. 1395dd(e)(4)
3
Omnibus Budget Reconciliation Act of 1987, Pub. L.
No. 100-203, Tit. IV, § 4009(a), 101 Stat. 1330-56
22
101 Stat. 1330-57
22
Omnibus Budget Reconcilation Act of 1989, Pub. L.
No. 101-239, Tit. VI, § 6211(a), 103 Stat. 2245
22
Omnibus Budget Reconciliation Act of 1990, Pub. L.
No. 101-508, Tit. IV, 104 Stat.:
Tit. IV, § 4008(b)(1), 104 Stat. 1388-44
17
§ 4008(b)(3)(A), 104 Stat. 1388-44
17
§ 4008(b)(3)(B), 104 Stat. 1388-44
17
§ 4027(a)(1)(A), 104 Stat. 1399-117
17
42 U.S.C. 1320a-7a
4
42 U.S.C. 1320c-5(a)(1)
18
Statutes and regulations-Continued:
Page
42 U.S.C. 1395f(c)
2
42 U.S.C. 1395y(a)(3)
2
42 U.S.C. 1395bb
14
42 U.S.C. 1395cc(a)(1)
17
42 U.S.C. 1395cc(a)(1)(I)
2, 17
42 U.S.C. 1395cc(b)(2)
2, 4, 17
42 U.S.C. 1395cc(b)(2)(A)
17
42 U.S.C. 1395qq
2
42 C.F.R. 489.24
2, 3, 14
42 C.F.R. 489.24(g)(2)(v)
17
Miscellaneous:
131 Cong. Rec. (1985):
p. 19,833
21
p. 28,568
22
p. 28,569
22
p. 29,829
21
p. 29,835
21
59 Fed. Reg. 32,086 (1994)
23, 27
H.R. Conf. Rep. No. 453, 99th Cong., 1st Sess.
(1985)
21
H.R. Conf. Rep. No. 495, 100th Cong., 1st Sess.
(1987)
22
H.R. Conf. Rep. No. 386, 101st Cong., 1st Sess.
(1989)
22
H.R. Rep. No. 241, 99th Cong., 1st Sess. Pt. 1 (1985)
2, 19
H.R. Rep. No. 241, 99th Cong., 1st Sess. Pt. 3 (1985)
2, 19
The Random House Dictionary of the English
Language (2d ed. 1987)
25
Department of Health and Human Services,
State Operations Manual Provider Certification
(1998)
27
Webster's Third New International Dictionary
(1976)
25
In the Supreme Court of the United States
OCTOBER TERM, 1997
No. 97-53
JANE M. ROBERTS, GUARDIAN FOR
WANDA Y. JOHNSON, PETITIONER
v.
GALEN OF VIRGINIA, INC., FORMERLY DBA HUMANA HOSPITAL-UNIVERSITY OF LOUISVILLE,
DBA LOUISVILLE HOSPITAL
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER
INTEREST OF THE UNITED STATES
This case concerns the requirements for establishing liability under the
Emergency Medical Treatment and Labor Act (EMTALA), 42 U.S.C. 1395dd et
seq. EMTALA requires hospitals with Medicare provider agreements, as a condition
of eligibility, to provide all individuals who come to the hospital with
essential emergency care. Similar requirements are imposed on physicians
working at those hospitals. The United States plays an important role in
the enforcement of EMTALA's requirements. Although private entities may
bring an action under 42 U.S.C. 1395dd(d)(2) for damages and injunctive
relief, the Secretary of Health and Human Services is responsible for enforcing
the statutory requirements through civil money penalties and through exclusion
from participation in the Medicare and Medicaid programs. 42 U.S.C. 1395dd(d)(1);
see also 42 U.S.C. 1395cc(b)(2); 42 C.F.R. 489.24. At the Court's invitation,
the United States filed a brief as amicus curiae at the petition stage of
this case.
STATEMENT
1. EMTALA was enacted in 1986 in an effort to ensure that individuals who
needed emergency treatment were not turned away at the hospital door or
transferred pre- maturely. H.R. Rep. No. 241, 99th Cong., 1st Sess. Pt.
1, at 27 (1985); H.R. Rep. No. 241, 99th Cong., 1st Sess. Pt. 3, at 5 (1985).
The Act, in 42 U.S.C. 1395dd(a) and (b), imposes two principal obligations
on hospitals that have entered into Medicare provider agreements with the
Secretary of Health and Human Services. 42 U.S.C. 1395dd(e)(2).1
First, when an individual comes to a covered hospital and a request is made
on the individual's behalf for ex- amination or treatment for a medical
condition, the Act requires the hospital to provide "an appropriate
medical screening examination within the capability of the hospital's emergency
department * * * to determine whether or not an emergency medical condition
* * * exists." 42 U.S.C. 1395dd(a). The Act does not define the term
"appropriate medical screening examination." The term "emergency
medical condition" is defined as a con- dition "manifesting itself
by acute symptoms of sufficient severity * * * that the absence of immediate
medical attention could reasonably be expected to result in * * * serious
jeopardy [to the health of the individual or her unborn child], * * * serious
impairment to bodily func- tions, or * * * serious dysfunction of any bodily
organ or part." 42 U.S.C. 1395dd(e)(1)(A). A separate definition of
"emergency medical condition" covers a pregnant woman who is having
contractions. 42 U.S.C. 1395dd(e)(1)(B). See generally 42 C.F.R. 489.24.
Second, if the hospital determines that an individual who has come to the
hospital is suffering from an emergency medical condition, the hospital
must either, "within the staff and facilities available at the hospital,"
provide "for such further medical examination and such treatment as
may be required to stabilize the medical condition," or transfer the
patient to another hospital in accordance with the provisions of subsection
(c) of the Act. 42 U.S.C. 1395dd(b)(1)(A); see generally 42 C.F.R. 489.24.2
The term "to stabilize" means "to provide such medical treatment
of the [emergency medical] condition as may be necessary to assure, within
reasonable medical probability, that no material deterioration of the condition
is likely to result from or occur during the transfer of the individual."
42 U.S.C. 1395dd(e)(3)(A). The term "stabilized" is defined accordingly.
42 U.S.C. 1395dd(e)(3)(B).
Subsection (c) states that "[i]f an individual at a hospital has an
emergency medical condition which has not been stabilized * * *, the hospital
may not transfer the individual unless" the individual (or a legal
representative) makes an informed, written request to be transferred; a
physician has signed a certification that, based on the information available
at the time of transfer, the medical benefits reasonably expected from the
provision of ap- propriate medical treatment at another medical facility
outweigh the increased risks to the individual or her unborn child; or,
if a physician is not available, a qualified medical person, in consultation
with a physician, has made the required risk/benefit determination. 42 U.S.C.
1395dd(c). Subsection (c) further provides that in order for such a transfer
to be appropriate, any receiving hospital must agree to accept the transfer
of the individual and to provide appropriate medical treatment, and the
sending hospital must forward all relevant medical records. 42 U.S.C. 1395dd(c)(2).
A participating hospital that negligently violates a re- quirement of the
Act is subject to a civil money penalty of not more than $50,000 for each
such violation. 42 U.S.C. 1395dd(d)(1)(A). Certain physicians who negligently
vio- late a requirement of the Act with regard to an individual in a participating
hospital are similarly subject to a civil money penalty of not more than
$50,000 for each such violation. 42 U.S.C. 1395dd(d)(1)(B). If the violation
is "gross and flagrant or is repeated," the physician is also
subject to exclusion from participation in Medicare and federally funded
state health care programs. Ibid. See also 42 U.S.C. 1395cc(b)(2). Civil
money penalties and ex- clusions are imposed by the Secretary of Health
and Human Services, pursuant to 42 U.S.C. 1320a-7a, as incor- porated into
42 U.S.C. 1395dd(d)(1)(A) and (B).
The Act also provides for two private rights of action against participating
hospitals, but not against physicians. The Act provides that "[a]ny
individual who suffers per- sonal harm as a direct result of a participating
hospital's violation of a requirement of [EMTALA]" may bring a civil
action to obtain those damages that are available for personal injury under
the law of the State in which the hospital is located, as well as for appropriate
equitable relief against the hospital. 42 U.S.C. 1395dd(d)(2)(A). The Act
further provides that "[a]ny medical facility that suffers a financial
loss as a direct result of a participating hospital's violation of a requirement
of [EMTALA]" may bring a civil action for similar damages and appropriate
equitable relief. 42 U.S.C. 1395dd(d)(2)(B).
2. Wanda Y. Johnson was injured in May 1992 when she was struck by a vehicle
while walking. Her injuries were life-threatening, and she was taken to
the respondent hospital in Louisville, Kentucky, where she received treatment
for the next two months. She suffered a series of infections and other complications,
including pneumo- nia and urinary tract infections. Pet. App. A27.
In July 1992, respondent sought to transfer Johnson, who had no medical
insurance, to a nursing home facility. At the time, she had symptoms of
an active infection. She was placed on antibiotics and transferred on July
24, 1992, to Crestview Health Care Facility, a licensed nursing fa- cility
in Indiana, after two other nursing homes turned Johnson down following
on-site evaluations of her con- dition by their directors of nursing. Pet.
App. A2, A27. The day after she arrived at Crestview, Johnson's con- dition
deteriorated and she was transported to Midwest Medical Center, an Indianapolis
hospital. She remained at Midwest Medical Center for several months, incurring
expenses in excess of $300,000. Id. at A27. The State of Indiana rejected
Johnson's application for medical as- sistance under the Indiana Medicaid
Program because Johnson failed to meet state residency requirements. Id.
at A3.
3. On August 30, 1993, petitioner, as guardian for Johnson, filed suit in
the United States District Court for the Western District of Kentucky, alleging,
inter alia, that respondent had violated EMTALA by transferring Johnson
to Crestview before the hospital had stabilized her condition. Petitioner,
Johnson's aunt, did not allege that the initial screening that Johnson received
was inappropriate, and respondent did not dispute that when Johnson arrived
at the hospital she presented an emer- gency condition. Pet. App. A29. Nor
did respondent claim to have complied with the provisions of 42 U.S.C. 1395dd(c)
that permit the transfer of a patient whose emergency condition has not
been stabilized. The case therefore turned on whether Johnson had been properly
stabilized under 42 U.S.C. 1395dd(b) before she was transferred.
The district court at first denied respondent's motion for summary judgment
on the EMTALA claim. Pet. App. A45. The court concluded that there was a
genuine issue of material fact as to whether Johnson was stabilized at the
time of transfer. Id. at A36, A39. Citing the Sixth Cir- cuit's decision
in Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266, 271 (1990),
which the district court described as requiring "the presence of an
improper motive as an essential element in a claim for relief under §
1395dd," the district court held that there was also a disputed issue
of material fact as to whether the hospital acted with improper motive in
transferring Johnson. Pet. App. A37.
The court based its ruling as to improper motive on evidence that a hospital
social worker was facing con- siderable pressure to have Johnson discharged
because the hospital was not being paid for her care. Pet. App. A37-A38.3
Respondent moved for reconsideration, and in support of its motion, submitted
affidavits from the physi- cians responsible for Johnson's discharge. The
physicians all stated that Johnson was stable when transferred and that
her financial condition did not influence their medical decision to authorize
her transfer. Id. at A49-A50. The district court did not alter its previous
conclusion that there was a material issue of fact regarding whether Johnson
was stabilized at the time of transfer, but the court granted summary judgment
to respondent because "the plaintiff presented no evidence that either
the medical opinion that Johnson was stable or the decision to author- ize
her transfer was caused by an improper motive[]." Id. at A50-A51.
4. The court of appeals affirmed the district court's judgment. Pet. App.
A1-A25. The court of appeals stated that the district court "properly
interpreted the Cleland holding as requiring that a plaintiff prove a hospital
acted with an improper motive in order to recover under the EMTALA."
Id. at A10. The court noted that Cleland defined the term "appropriate
medical screening" not to refer to malpractice or some other standard
of care, but rather to refer "to the motives with which the hospital
acts." Id. at A8-A9 (quoting Cleland, 917 F.2d at 272). The court further
noted that the Cleland court concluded that a showing of improper motive
is not limited to a refusal to treat patients because of indigence but also
includes "pre- judice against the race, sex, or ethnic group of the
patient; distaste for the patient's condition (e.g., AIDS patients); personal
dislike or antagonism between the medical per- sonnel and the patient; disapproval
of the patient's occupa- tion; or political or cultural opposition."
Id. at A9-A10 (quoting Cleland, 917 F.2d at 272).
The court of appeals reasoned that a plaintiff must prove improper motive
in order to distinguish an EMTALA claim from a state law claim for malpractice.
The court explained:
We reject the position espoused by [petitioner] that, to succeed on a claim
under the EMTALA, she can prove that [respondent's] treatment of Johnson
was not uniform to patients suffering the same medical con- dition as Johnson.
Proof of disparate treatment, in [petitioner's] view, distinguishes an EMTALA
claim from a state law negligence claim. If we were to adopt this position,
however, we would effectively require a hospital, in defense of a claim
under EMTALA, to either prove that it breached a standard of care to an
individual patient or that it breaches the applicable standard of care with
respect to all similarly situated patients. In other words, we would require
a hospital to prove that it has committed medical negligence or malpractice.
Pet. App. A11.
The court acknowledged that the issue in Cleland was whether the hospital
had afforded the patient an "appropri- ate medical screening"
in accordance with subsection (a) of 42 U.S.C. 1395dd, while the issue in
the current case is whether the hospital failed to stabilize a patient with
an emergency medical condition in violation of subsection (b) of that Section.
Pet. App. A12 n.3. The court also noted that the term "appropriate
medical screening," the linchpin of the court's analysis in Cleland,
appears in subsection (a) but not in subsection (b). Nonetheless, ex- plaining
that it "s[aw] no rational reason to set forth differing standards
when applying subsection[s] (a) and (b)," ibid., the court of appeals
concluded that Cleland's improper motive requirement also applies in cases
like this that arise under subsection (b).
As to the merits of the controversy before it, the court of appeals first
noted that, under Cleland, physicians "are charged with the duty of
stabilizing a patient's condition as it is known to them." Pet. App.
A13. And the court further noted that respondent did not appeal the district
court's holding that there was a genuine issue of material fact as to whether
Johnson was stabilized when she was discharged by respondent. Id. at A14.
The court never- theless affirmed the district court's award of summary
judgment for respondent, concluding that the district court correctly found
that petitioner had failed to in- troduce evidence of improper motive that
led to Johnson's discharge. Id. at A14-A16. Although the court acknowl-
edged the evidence of the statement by the hospital social worker that she
was facing pressure to discharge Johnson, the court emphasized that the
social worker played no role in determining whether Johnson was in stable
condition before she was discharged, and that affidavits of the physi- cians
who were involved stated that Johnson's financial status played no role
in the discharge decision. See ibid.
Judge Nelson dissented in part. Pet. App. A23-A25. In his view, evidence
that petitioner's treating physician relied on the hospital's social workers,
together with evidence that the social workers were "receiving pressure
from [respondent's] administration to get * * * Johnson discharged,"
id. at A25, was sufficient to raise "a genuine issue of fact as to
whether [respondent] acted from an improper motive," id. at A24.
SUMMARY OF ARGUMENT
The text of EMTALA contains no suggestion that proof of improper motive
is required to demonstrate that a hospital has failed, "within the
staff and facilities available," to provide "such further medical
examination and such treatment as may be required to stabilize the [patient's]
medical condition." 42 U.S.C. 1395dd(b)(1)(A). That statutory language
makes clear that the hospital's duty is to provide sufficient treatment
"to stabilize the medical condition," without regard to the hospital's
mo- tive. Moreover, the statutory definition of "to stabilize"
includes a requirement that the hospital assure "within reasonable
medical probability" that the patient's con- dition is not likely to
deteriorate during a transfer, and the definition of "emergency medical
condition" refers to a condition that "could reasonably be expected
to result in * * * serious jeopardy" to the patient's health. 42 U.S.C.
1395dd(e)(3)(A) and (e)(1)(A). Both of those "reasonable- ness"
standards support the conclusion that EMTALA imposes an objective standard
of care, and neither could be read to impose a further requirement that
the hospital act with an improper subjective motive. Finally, EMTALA's sanctions
provisions have from the beginning made clear that various sanctions may
apply to a hospital that "negli- gently" violates the Act. Those
provisions would be in- explicable if, as the Sixth Circuit held, violations
of EMTALA necessarily involve conduct that is more culpable than mere negligence
because it was committed with an improper motive.
Although in enacting EMTALA Congress was con- cerned with "patient
dumping"-refusing treatment to or transferring patients who could not
pay for care-the legislative history confirms that Congress chose to ad-
dress that problem through imposition of a substantive standard of medical
care, not a prohibition against acting with an improper (non-medical) motive.
Each of the relevant committee reports and statements in floor de- bates
described the hospital's obligation under EMTALA in objective terms, and
none suggested that proof of a violation depended on proof of improper motive.
Finally, the Secretary of HHS has taken the position that im- proper motive
is not an element of a violation of EMTALA. In light of the Secretary's
enforcement responsibilities under EMTALA, that position is entitled to
deference and, because it is reasonable, should be conclusive.
The Sixth Circuit attempted to justify its improper motive requirement on
the ground that it had already held in Cleland v. Bronson Health Care Group,
Inc., 917 F.2d 266 (1990), that improper motive is an element of a vio-
lation of EMTALA's provision requiring hospitals to provide an "appropriate
medical screening examination" to those who come to their emergency
rooms. The "stabilization" provision at issue here, however, need
not be construed to impose the same requirement as the "appropriate
medical screening examination" provision, since neither the term the
Sixth Circuit had found to be crucial in Cleland-"appropriate"-nor
any similar term is present in the "stabilization" provision.
Moreover, as both the Secretary and every other court of appeals to address
the issue have concluded, the Sixth Circuit erred in holding that improper
motive is an element even in an "appropriate medical screening examination"
case. Every standard definition of the key word relied upon by the Sixth
Circuit-"appropriate"-makes clear that the word refers to the
type of action, not the motive with which it is undertaken.
Finally, the policy concerns that drove the Sixth Cir- cuit's decision are
both doubtful and, in any event, insufficient to overcome the plain text,
legislative history, and administrative interpretation of the Act. The Sixth
Circuit stated that it was concerned that, if improper motive need not be
shown, it would "effectively reduce the EMTALA to nothing more than
a federal remedy for medical malpractice." Pet. App. A12. Insofar as
that statement merely represents a disagreement with Con- gress's decision
to embody a limited "reasonableness" standard in the stabilization
provision, it is of little import. And in any event the adoption of an "improper
motive" requirement would substitute for the legally familiar "reasonableness"
standards in EMTALA an entirely indeterminate inquiry, unguided by the statutory
text, regarding which motives are "improper." Because improper
motive-however interpreted-is neither a necessary nor a sufficient element
of a violation of EMTALA's stabilization requirement, the Sixth Circuit's
decision should be reversed.
ARGUMENT
A VIOLATION OF 42 U.S.C. 1395dd(b) OCCURS WHEN A COVERED ENTITY FAILS TO
STABILIZE A PATIENT BEFORE TRANSFER, REGARDLESS OF THE MOTIVE WITH WHICH
THE ENTITY ACTED
A. The Text Of EMTALA Makes Clear That Establish- ing A Violation Does Not
Require Proof Of Motive
The cardinal principle of statutory construction is that statutes should
be construed in accordance with their plain language. "Where there
is no ambiguity in the words, there is no room for construction." United
States v. Gonzales, 117 S. Ct. 1032, 1036 (1997) (quoting United States
v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95-96 (1820) (Marshall, C. J.)). Only
an "absurd or glaringly unjust result" "would warrant departure
from the plain language of" the statute. Inter-Modal Rail Employees
Ass'n v. Atchison, T. & S.F. Ry., 117 S. Ct. 1513, 1516 (1997) (cita-
tion and internal quotation marks omitted).
1. Section 1395dd(b) provides:
If any individual (whether or not eligible for benefits under this subchapter)
comes to a hospital and the hos- pital determines that the individual has
an emergency medical condition, the hospital must provide either-
(A) within the staff and facilities available at the hospital, for such
further medical examination and such treatment as may be required to stabilize
the medical condition, or
(B) for transfer of the individual to another medical facility in accordance
with subsection (c) of this section.
In the circumstances of this case-which does not involve a transfer that
purports to have satisfied subsection (c)-Section 1395dd(b) makes clear
that a violation occurs if certain specified conditions are satisfied. First,
an in- dividual must have "come to a hospital." Second, the hospital
must have determined that the individual has "an emergency medical
condition." Third, the hospital must have failed to provide "for
such further medical examina- tion and such treatment as may be required
to stabilize the medical condition." Fourth, such further examination
and treatment must be "within the staff and facilities available at
the hospital."
If all of the above conditions are satisfied, a hospital has violated the
obligations imposed by the plain language of Section 1395dd(b). None of
those conditions can reason- ably be read to impose an additional condition
that must be satisfied-that the hospital acted with any particular motive.
A hospital may have a laudable motive to provide excellent care to its emergency
room patients generally, but it nonetheless may violate Section 1395dd(b)
by failing to provide a "further medical examination" and "treat-
ment" that would stabilize a particular patient's condition. Conversely,
a hospital may generally intend to discrimi- nate against patients who cannot
pay-the immediate concern of the drafters of EMTALA, see pp. 18-19, infra
- or against patients of another identifiable group, but none- theless provide
a "further medical examination" and "treatment" that
stabilize one such patient prior to trans- fer. If so, the hospital may
have violated some other pro- vision of law, but it has not violated this
provision of EMTALA. Although evidence of an improper motive may be probative
as to various issues in an EMTALA case, the text of EMTALA contains no suggestion
that proof of an improper motive is either necessary or sufficient to establish
a violation of the "stabilization" requirements of Section 1395dd(b).
2. The definitions of the key terms in Section 1395dd(b) further specify
the nature of a violation and the mental state of the party that commits
a violation. They, too, make clear that an improper motive is not an element
of a violation.
a. The most significant term in Section 1395dd(b) is "to stabilize,"
since a hospital's basic obligation under that provision is "to stabilize"
a patient before transfer. The term "to stabilize" is defined
to mean:
to provide such medical treatment of [an emergency medical] condition as
may be necessary to assure, within reasonable medical probability, that
no material deterioration of the condition is likely to result from or occur
during the transfer of the individual from a facility, or, with respect
to [a pregnant woman having contractions], to deliver.
42 U.S.C. 1395dd(e)(3)(A). The term "stabilized" is de- fined
in a similar manner. 42 U.S.C. 1395dd(e)(3)(B).
Aside from the case of pregnant women having con- tractions-for whom special
rules apply-the defini- tion of "to stabilize" makes clear that
a hospital's basic obligation is to see to it that the patient's emergency
medical condition is not likely to deteriorate during, or as a result of,
any transfer to another facility. The definition clarifies the mental state
with which the hospital must act: it must assure "within reasonable
medical pro- bability" that the patient's condition will not likely
deteriorate. The hospital is therefore not strictly liable for the patient's
condition when it effects a transfer. If it acts "within reasonable
medical probability" to assure that the patient's condition will likely
suffer no material deterioration, the hospital has satisfied its obligations.
Nothing in the definition of "to stabilize" suggests that a hospital
that fails to assure "within reasonable medical probability" that
a patient's condition will not likely dete- riorate during or as a result
of a transfer could never- theless escape liability if the plaintiff fails
to show that the hospital acted with some "improper" (presumably
non-medical) motive.4
b. The statutory definition of the term "emergency medical condition"
further supports the conclusion that a violation may be established with
no proof of an improper motive. That term is defined as
a medical condition manifesting itself by acute symp- toms of sufficient
severity (including severe pain) such that the absence of immediate medical
attention could reasonably be expected to result in -
(i) placing the health of the individual (or, with respect to a pregnant
woman, the health of the woman or her unborn child) in serious jeopardy,
(ii) serious impairment to bodily functions, or
(iii) serious dysfunction of any bodily organ or part.
42 U.S.C. 1395dd(e)(1)(A).5
By once again incorporating a "reasonableness" standard-a failure
to give medical attention that "could reasonably be expected"
to result in jeopardy to health or impairment of bodily function-this definition
reinforces the conclusion that hospitals need not guarantee that patients
who come to emergency rooms will be correctly diagnosed and their emergency
medical conditions suc- cessfully treated. But it also makes clear that
hospitals must at least stabilize the conditions of those patients who could
reasonably be expected to be placed in jeopardy without such treatment.
Certainly the use of the familiar "reasonableness" standard cannot
be read to suggest that the hospital will be liable only if it intends to
treat a pa- tient improperly or otherwise acts with an improper motive.6
3. As originally enacted, the sanctions under EMTALA included suspension
or termination from the Medicare program, which could be imposed on a hospital
that "knowingly and willfully, or negligently, fail[ed] to meet the
requirements of [EMTALA]." 42 U.S.C. 1395dd(d)(1) (1988). If, as the
Sixth Circuit held, violations of EMTALA require proof of improper motive,
there could be no possibility of a "negligent" violation of the
Act, and the use of the term "negligently" in the sanction provision
would have been superfluous. See, e.g., Walters v. Metro- politan Educ.
Enters., 117 S. Ct. 660, 664 (1997) ("Statutes must be interpreted,
if possible, to give each word some operative effect."). Because, however,
EMTALA from the beginning imposed requirements that did not turn on the
presence of improper motive, the sanction provision's reference to negligence
fits comfortably with the balance of the Act, permitting imposition of sanctions
even when a hospital is at fault but cannot be shown to have acted with
an improper motive.
In amendments added by the Omnibus Budget Re- conciliation Act of 1990 (OBRA
1990), Pub. L. No. 101-508, Tit. IV, § 4008(b)(3)(A) and (B), 104 Stat.
1388-44, the EMTALA provision regarding termination or exclusion from Medicare
was repealed, and it was replaced by the incorporation of more general provisions
permitting the Secretary of Health and Human Services to terminate from
the Medicare program a participating hospital that fails to fulfill its
obligation to comply substantially with the provisions of its provider agreement,
including the commitment to comply with EMTALA. See 42 U.S.C. 1395cc(a)(1)
and (a)(1)(I), 1395cc(b)(2) and (b)(2)(A). At the same time, however, Congress
amended the EMTALA civil penalty provisions. Under EMTALA as originally
enacted, the Secretary could impose civil monetary penal- ties on hospitals
and physicians who "knowingly violate[d] a requirement of [EMTALA]."
42 U.S.C. 1395dd(d)(2) (1988). In OBRA 1990, Congress substituted the term
"negligently" for the term "knowingly" in that provision.
Tit. IV, § 4008(b)(1), 104 Stat. 1388-44. That change would be inexplicable
if EMTALA could only be violated by a hospital that acted with an improper
motive.7 See American Nat'l Red Cross v. S.G., 505 U.S. 247, 263 (1992)
("canon[s] of statutory construction requir[e] a change in language
to be read, if possible, to have some effect") (internal citations
omitted). But the change is en- tirely explicable if the Act can be violated
by hospitals that negligently fail to stabilize a patient before transfer.
In that event, the amendment expressed Congress's reason- able decision
in 1990 that the enforcement mechanism of civil penalties would be useful
to deter such negligent violations.8
B. The Legislative History Of EMTALA Supports The Conclusion That A Hospital's
Obligations Under Section 1395dd(b) Do Not Turn On The Motive With Which
The Hospital Acts
1. EMTALA was originally enacted as part of the Consolidated Omnibus Budget
Reconciliation Act of 1985 (COBRA 1985), Pub. L. No. 99-272, Tit. IX, §
9121(b), 100 Stat. 164. It arose from "a growing concern about the
pro- vision of adequate emergency room medical services to individuals who
seek care, particularly as to the indigent and uninsured." H.R. Rep.
No. 241, 99th Cong., 1st Sess. Pt. 3, at 5 (1985). See also H.R. Rep. No.
241, 99th Cong., 1st Sess. Pt. 1, at 27 (1985) (Congress was "greatly
con- cerned about the increasing number of reports that hospi- tal emergency
rooms are refusing to accept or treat patients with emergency conditions
if the patient does not have medical insurance."). In some cases, "treatment
was simply not provided," while in others "patients in an un-
stable condition have been transferred improperly, some- times without the
consent of the receiving hospital." Ibid. That practice was known as
"patient dumping."
2. Although Congress's principal concern in enacting EMTALA was the problem
of patient dumping, Congress had available a number of possible means to
address that problem. "[S]tatutory prohibitions often go beyond the
principal evil to cover reasonably comparable evils, and it is ultimately
the provisions of our laws rather than the principal concerns of our legislators
by which we are governed." Oncale v. Sundowner Offshore Servs., Inc.,
118 S. Ct. 998, 1002 (1998). Thus, the fact that Congress was concerned
with patient dumping does not establish just how it chose to address that
problem or what sub- stantive obligations it chose to impose on hospitals
to en- sure that proper care is provided.
Congress surely could have enacted a statute prohibit- ing intentional discrimination
against certain classes of patients. Had it done so, however, it is reasonable
to expect that the statute would include some language em- bodying the discrimination
standard or otherwise indi- cating that such a standard was intended. EMTALA
contains no such language. Because differences in treat- ment (for example,
among patients suffering different medical conditions) cannot all be prohibited,
it would also be expected that Congress would specify precisely which types
of intentional discrimination-i.e., which motives-were prohibited. Yet EMTALA
contains no specification of which types of discrimination would be prohibited,
and it otherwise offers a court no help in determining which "motives"
might be considered "improper," and thus the basis for a violation.9
The logical conclusion to be drawn from the absence of any such specification
is that Congress chose not to take the approach of forbidding discrimination
based on improper subjective motives when it enacted EMTALA.
3. Instead of addressing the problem of patient dumping through a motive-based
prohibition, Congress chose to require hospitals to satisfy a substantive
standard of care. It would obviously have been difficult or impossible to
specify the precise minimum procedures that hospitals must use to treat
each of the myriad emergency medical conditions they face in emergency rooms.
Accordingly, Congress chose instead to impose a general "reasonable-
ness" standard, not unfamiliar in other areas of law, but with modifications-such
as the need for a hospital only to act within its available personnel and
facilities, see note 4, supra - to suit the present context.
The Conference Report on EMTALA made clear that it was adopting the House
proposal that "all participating hospitals must * * * provide further
examination and treatment within their competence to stabilize the medical
condition or provide treatment for the labor." H.R. Conf. Rep. No.
453, 99th Cong., 1st Sess. 473 (1985). That is not a motive-based standard.
Moreover, although the House bill required provision of "medical treatment
* * * to assure that no material deterioration of the [emergency medical]
condition is likely to result from the transfer of the individual,"
the Senate bill added that the treatment must only provide such assurance
"within reasonable medical probability." Id. at 477. The Conference
Committee adopted the House provision, but modified it with the Senate's
"within reasonable medical probability" standard. Id. at 478.
That compromise demonstrates that Congress focused on the precise standard
of care to be embodied in EMTALA, and concluded that, while an absolute
guar- antee of medical results would be too exacting, a "medical reasonableness"
standard would provide sufficient protec- tion against patient dumping.
The Senate floor debates on the bill similarly leave no doubt that Congress
chose to address the problem of emergency treatment and stabilization by
imposing a medical standard of care-not merely a prohibition against intentional
discrimination-on participating hospitals.10 Senator Durenberger, the bill's
floor manager, stated that the bill would "make it clear that the Medicare
Program will not do business with any institution which willfully and knowingly,
or through negligence, turns its back on an emergency medical situation."
131 Cong. Rec. 28,568 (1985) (emphasis added). Senator Kennedy, a co-sponsor,
similarly stated that "every patient who has a bonafide emergency must
receive stabilizing care." Id. at 28,569. Senator Dole, another co-sponsor,
referred to the problem of patient dumping, and added that "a hospital
is charged only with the responsibility of providing an adequate first response
to a medical crisis," which "means that a patient must be evaluated
and, at a minimum, provided with what- ever medical support services and/or
transfer arrange- ments that are consistent with the capability of the institution
and the well-being of the patient." Ibid. Those statements evidence
Congress's intent to address the problem of patient dumping by imposing
a medical standard of care, not a prohibition against intentional discrimina-
tion.
4. EMTALA has been amended on several occasions since 1986. Aside from the
amendment to the civil penalty provision in 1990 (see pp. 17-18, supra),
most of those amendments did not address the nature of the duty imposed
by EMTALA on participating hospitals. But on each occasion, the discussions
in the committee reports concerning EMTALA's requirements referred only
to the hospital's duty to provide sufficient care to stabilize the patient's
condition.11 They nowhere suggested that im- proper motive is an element
of a statutory violation.
C. The Secretary Of Health And Human Services Also Has Taken The Position
That "Improper Motive" Is Not An Element Of An EMTALA Violation
As noted previously, p. 4, supra, the Secretary of Health and Human Services
administers the civil monetary fine provisions of EMTALA, and she may also
exclude physicians who violate EMTALA from eligibility for Medicare or Medicaid
reimbursements. Similarly, the Secretary may terminate a hospital's eligibility
for federal reimbursements if the hospital violates EMTALA. Because the
Secretary has an important role in the administration of EMTALA, her interpretation
of EMTALA is entitled to deference. See Martin v. OSHRC, 499 U.S. 144 (1991);
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 842-845 (1984).
The Secretary has concluded that proof of an improper motive is not an essential
element of a violation of Section 1395dd(b). In the preamble to Interim
Final Rules and Regulations that remain in effect and that govern the Department's
Health Care Financing Administration and its Office of Inspector General,
the Secretary stated that "with regard to appropriate transfers, *
* * the Secretary has taken the position that in proving that a hospital
or physician has violated [42 U.S.C. 1395dd(b)], there is no requirement
to prove that the transfer was effected due to some 'impermissible motive.'"
59 Fed. Reg. 32,086, 32,104 (1994). As the Secretary explained, that po-
sition was not a new one, since it had already been upheld by the Fifth
Circuit three years earlier in Burditt v. HHS, 934 F.2d 1362 (5th Cir. 1991).
Thus, even if the text and legislative history of 42 U.S.C. 1395dd(b) were
ambiguous, the Secretary's reasonable interpretation that proof of a violation
does not require proof of an improper motive would settle the matter.
D. There Is Nothing In The "Appropriate Medical Screening Examination"
Provision Of EMTALA, 42 U.S.C. 1395dd(a), That Supports An Improper Mo-
tive Requirement In Section 1395dd(b)
Rather than purporting to find any language in Section 1395dd(b) that could
be construed to impose an improper motive requirement, the Sixth Circuit
relied heavily on its prior decision in Cleland, which arose under Section
1395dd(a)'s "appropriate medical screening" provision. Cleland
held that "'appropriate' must * * * be inter- preted to refer to the
motives with which the hospital acts." 917 F.2d at 272. The court in
this case applied that holding to Section 1395dd(b) because it "s[aw]
no rational reason to set forth differing standards when applying subsection[s]
(a) and (b)." Pet. App. A12 n.3. Accordingly, the Sixth Circuit's conclusion
with respect to subsection (b) of Section 1395dd that "a plaintiff
[must] prove a hospi- tal acted with an improper motive in order to recover
under the EMTALA," id. at A10, rests, at bottom, on its construction
in Cleland of the term "appropriate medical screening" in subsection
(a).
1. The Sixth Circuit erred in concluding that there is no "rational
reason" to impose differing liability standards under the "appropriate
medical screening examination" (subsection (a)) and "stabilization"
(subsection (b)) pro- visions of EMTALA. Even if the Sixth Circuit were
correct that the term "appropriate" in subsection (a) could be
construed as imposing an improper motive requirement, neither the term "appropriate"
nor any similar term ap- pears in subsection (b). Because no other term
in sub- section (b) can plausibly be read to impose an improper motive requirement,
the difference in statutory language would be a more than sufficient basis
for concluding that, regardless of the obligations imposed by subsection
(a), liability under subsection (b) does not turn on proof of an improper
motive.
2. More fundamentally, the Sixth Circuit erred in ap- parently construing
an "appropriate medical screening examination" under subsection
(a) to include an examina- tion that is medically inefficacious and unreasonable
but that is conducted with a "proper" motive. The word "appropriate"
is susceptible to a wide range of meanings, but construing it to mean "without
improper motivation" is to confer on the word a meaning not found in
any standard dictionary and not known to common usage.12 Respondent cites
no case, and we are aware of none, in which a court has construed the word
"appropriate" as used in any other statute to mean "without
improper moti- vation."13
All three other courts of appeals to address the issue have rejected the
Sixth Circuit's holding that proof of a violation of the subsection (a)
"appropriate medical screen- ing examination" requirement requires
proof of an improper motive.14 In addition, four other courts of appeals
have discussed the scope of EMTALA liability under subsection (a) with no
mention of an improper motive re- quirement.15 Each of those courts has
construed the term "appropriate" in 42 U.S.C. 1395dd(a) to refer
to the type of screening provided to an emergency room patient, not to the
motivation underlying a medical screening that fails to satisfy a standard
of medical suitability.
Aside from rejecting the Sixth Circuit's improper motive requirement, the
courts of appeals have differed regarding whether the "appropriate
medical screening examination" requirement imposes merely an obligation
that each participating hospital screen all patients for the existence of
an emergency medical condition equally, or whether it also imposes a substantive
minimum standard of care. Compare, e.g., Correa v. Hospital San Francisco,
69 F.3d 1184, 1192 (1st Cir. 1995) (screening must be "rea- sonably
calculated to identify critical medical conditions") and Eberhardt
v. City of Los Angeles, 62 F.3d 1253, 1258 (9th Cir. 1995) ("The touchstone
is whether * * * the [screening] procedure is designed to identify an 'emer-
gency medical condition,' that is manifested by 'acute' and 'severe' symptoms.")
with Summers v. Baptist Medical Center Arkadelphia, 91 F.3d 1132, 1138 (8th
Cir. 1996) ("An inappropriate screening examination is one that has
a disparate impact on the plaintiff.") and Holcomb v. Monahan, 30 F.3d
116, 117 (11th Cir. 1994) ("As long as a hospital applies the same
screening procedures to indigent patients [as] it applies to paying patients,
the hospital does not violate [Section 1395dd(a).").
To some extent, the differences among the circuits on this point may be
more apparent than real. Hospitals can be expected generally to provide
medically reasonable care to their patients, both because professional medical
standards require such care and because of the threat of tort liability
under state law. Thus, a hospital that pro- vides the same procedures for
determining the existence of an emergency medical condition to indigent
patients as to paying patients may ordinarily be expected to be found to
have given medically reasonable care to all. The Secre- tary of Health and
Human Services has stated, however, that the "appropriate medical screening
examination" provision of EMTALA requires screening examinations that
are both equal in the relevant respects to those pro- vided to other patients
and, at a minimum, adequate to determine whether an individual is suffering
from an emergency medical condition.16 As noted above, her view is entitled
to deference. But whatever may be the correct interpretation of the "appropriate
medical screening ex- amination" requirement in subsection (a) of EMTALA,
the Sixth Circuit's rule that improper motive be shown under that provision
is at odds with the views of each of the other circuits that has considered
the issue and with the views of the Secretary, which should be controlling
on this point.
3. The Sixth Circuit stated that one reason for requir- ing improper motive
to be shown in an action under both subsection (a) and subsection (b) was
that dispensing with proof of improper motive and resting a claim under
EMTALA solely on a lack of uniform treatment would "effectively require
a hospital, in defense of a claim under EMTALA, to either prove that it
breached a standard of care to an individual patient or that it breaches
the applicable standard of care with respect to all similarly situated patients."
Pet. App. A11. Presumably, the court was referring to a case in which the
plaintiff proves that the hospital breached a medical standard of care.
In such a case, the court believed that the hospital would be placed in
the "precarious position" of having to prove that it committed
the same breach with respect to all of its patients. Ibid.
The Sixth Circuit's policy concerns are not sufficient to overcome the plain
language, history, and authoritative administrative construction of subsection
(b) of EMTALA. Those policy concerns also rest on a false dilemma. If EMTALA
merely required uniform treatment of patients with similar medical conditions,
the issue of negligence would be irrelevant. If the plaintiff nonetheless
argued that the hospital's care was substandard, the hospital could be expected
to respond that the treatment it provided to the plaintiff and to all of
its patients is satisfactory; the hospital surely would not have to admit
(or prove) that it was negligent with respect to anyone. More funda- mentally,
as we have explained above (see pp. 12-16, supra), EMTALA imposes minimum
substantive standards of medical care under both subsections (a) and (b).
Thus, a hospital would defend against an EMTALA subsection (b) suit by proving
that, within the available staff and facilities, the hospital had stabilized
the condition of the patient "within reasonable medical probability."
42 U.S.C. 1395dd(e)(3)(A). Because that is akin to the kind of negligence
standard that is familiar in state tort law, it puts hospitals in no more
"precarious position" than does state tort law. Indeed, it is
far easier to use well-developed standards of medical reasonableness to
assess conduct in an EMTALA suit than it would be to determine-with no help
from the statutory language-just which motives for differential treatment
were "improper" under the Sixth Circuit's open-ended test.
CONCLUSION
The judgment of the court of appeals should be reversed.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
FRANK W. HUNGER
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
JAMES A. FELDMAN
Assistant to the Solicitor General
BARBARA C. BIDDLE
CARL E. GOLDFARB
Attorneys
JULY 1998
1 The statutory scheme governing the Medicare program requires participating
hospitals to comply with the requirements of EMTALA. 42 U.S.C. 1395cc(a)(1)(I).
Almost all non-federal hospitals have Medi- care provider agreements. See
Correa v. Hospital San Francisco, 69 F.3d 1184, 1191 (1st Cir. 1995) ("ninety-nine
percent of American hospitals [are] covered by EMTALA"), cert. denied,
517 U.S. 1136 (1996). With the exception of hospitals managed by the Indian
Health Service, federally run hospitals are ineligible to enter into Medicare
provider agreements. 42 U.S.C. 1395f(c); 1395qq; 1395y(a)(3).
2 The Act defines "transfer" to include "discharge"
of the individ- ual. 42 U.S.C. 1395dd(e)(4).
3 Joanna Nolte, a representative of Crestview Health Care Facil- ity, testified
that Nancy Fred, a social worker employed by respond- ent, explained to
her that "they had been trying to discharge and with out any avail
to other facilities and that she was getting a lot of pressure to discharge
this person due to they knew they weren't going to get paid for this person."
Pet. App. A14.
4 The standard of care under 42 U.S.C. 1395dd(b) is not one of ordinary
"reasonableness" (i.e., negligence); it instead requires merely
that a hospital stabilize patients "within the staff and facilities
available at the hospital." 42 U.S.C. 1395dd(b)(1)(A); accord 42 U.S.C.
1395dd(a) (requiring a hospital to provide an "appropriate medical
screening examination within the capability of the hospital's emer- gency
department, including ancillary services routinely available to the emergency
department"). A hospital therefore cannot be held liable under Section
1395dd(b)(1)(A) on the ground that it "negligently" failed to
have more specialized staff or facilities at the hospital. The Secre- tary
has the authority under 42 U.S.C. 1395bb to promulgate regula- tions to
further specify, consistent with the Act itself, the obligations of participating
hospitals. See 42 C.F.R. 489.24 (responsibilities of partici- pating hospitals
in emergency cases).
5 A companion provision adds that a pregnant woman who is ex- periencing
contractions has an emergency medical condition if "there is inadequate
time to effect a safe transfer to another hospital before delivery, or that
transfer may pose a threat to the health or safety of the woman or the unborn
child." 42 U.S.C. 1395dd(e)(1)(B).
6 EMTALA's provisions setting forth the alternative to the stabi- lization
requirement also indicate that the statutory duty turns on objective factors,
not the motive-based analysis adopted by the Sixth Circuit. Under those
provisions, a hospital may transfer a patient whose condition has not been
stabilized if a physician "has signed a certification that[,] based
upon the information available at the time of transfer, the medical benefits
reasonably expected from the provision of appropriate medical treatment
at another facility outweigh the in- creased risks to the individual * *
* from effecting the transfer." 42 U.S.C. 1395dd(c)(1)(A)(ii). The
statutory duty thus is based upon an analysis of what is "reasonably
expected"-not the motive with which the hospital or physician made
the transfer. Similarly, Section 1395dd(d)(1)(B)(i) imposes liability on
a physician who signed such a certificate "if the physician knew or
should have known that the benefits did not outweigh the risks." The
"should have known" stand- ard suggests that the physician's duty
is not merely to refrain from acting with an improper motive.
7 In OBRA 1990, Congress also provided for the first time that, "[i]n
considering allegations of violations of [EMTALA] in imposing [civil penalties],"
the Secretary shall "request the appropriate utilization and quality
control peer review organization [PRO] * * * to assess whether the individual
involved had an emergency medical condition which had not been stabilized."
OBRA 1990, § 4027(a)(1)(A), 104 Stat. 1399-117, codified at 42 U.S.C.
1395dd(d)(3). The role of the PRO is to address quality of care issues -
not motivation. See 42 C.F.R. 489.24(g)(2)(v) (PRO should provide an "expert
medical opinion regarding whether the individual involved had an emergency
medical condition, whether the individual's emergency medical condition
was stabilized, whether the individual was transferred appropriately, and
whether there were any medical utilization or quality of care issues involved
in the case."). Congress's decision to require use of the PRO mechanism
in civil penalty actions under EMTALA further supports the conclusion that
Congress understood that EMTALA liability is based on adherence to a medical
standard of care, not subjective motivation. Indeed, Medicare providers
generally have an obligation to provide services of "a quality which
meets professionally recognized standards of care." 42 U.S.C. 1320c-5(a)(1).
8 Since its enactment, EMTALA's private right of action provision has specified
only that an individual or a medical facility suffering "personal harm"
or "a financial loss" as a direct result of a violation may bring
a private suit for damages or equitable relief. 42 U.S.C. 1395dd(d)(2)(A)
and (B). Although that provision does not itself specify "negligence"
or any other standard to govern such an action, we believe that the EMTALA
provisions cited above that define a hospital's obligations in terms of
reasonableness make clear that a private suit based on an asserted violation
of Section 1395dd(b) must rest at least on an allegation of negligence with
respect to the duties imposed by those provisions. Whether there are obligations
imposed by other provisions of EMTALA that would support a private suit
not resting on a negligence standard is not at issue in this case and has
not been extensively litigated in the lower courts. Cf. Vargas v. Del Puerto
Hosp., 98 F.3d 1202, 1206 (9th Cir. 1996) (holding hospital not liable "for
what amounts to a clerical deficiency in record-keeping where the evidence
indicates that the transfer was effected for medical reasons").
9 The Sixth Circuit itself has stated that improper motives include the
patient's "indigency or lack of insurance[,] * * * race, sex, politics,
occupation, education, personal prejudice, drunkenness, or spite,"
Pet. App. A11, and "prejudice against the * * * ethnic group of the
patient; distaste for the patient's condition (e.g., AIDS patients); personal
dislike or antagonism between the medical personnel and the patient; disapproval
of the patient's occupation; or political or cultural opposition,"
id. at A9-A10. The Sixth Circuit did not explain how it determined that
these were improper motives or whether other motives-such as a desire to
limit treatment based on local residency or medical condition-would also
be "improper" under EMTALA. Moreover, limiting EMTALA's coverage
to individuals whose personal characteristics might trigger substandard
care on one of the grounds identified by the Sixth Circuit would be inconsistent
with EMTALA's statements that its duties are owed by hospitals to "any
individual" who seeks medical treatment or is found to have an emer-
gency condition. See Gatewood v. Washington Healthcare Corp., 933 F.2d 1037,
1040 (D.C. Cir. 1991).
10 The debate on COBRA on the House floor rarely touched on EMTALA, and
it does not clarify the instant question. See 131 Cong. Rec. 29,829 (1985)
(Rep. Stark), 19,833 (Rep. Bilirakis), 29,835 (Rep. Madigan).
11 See, e.g., Omnibus Budget Reconciliation Act of 1987, Pub. L. No. 100-203,
Tit. IV, § 4009(a), 101 Stat. 1330-56 to 1330-57, discussed in H.R.
Conf. Rep. No. 495, 100th Cong., 1st Sess. 540, 543, 547 (1987) (describing
EMTALA as requiring a hospital to "provide, within its capabilities,
examination and treatment to stabilize the medical con- dition or to administer
[sic] to the labor," and leaving that standard unchanged); Omnibus
Budget Reconciliation Act of 1989, Pub. L. No. 101-239, Tit. VI, §
6211(a), 103 Stat. 2245, discussed in H.R. Conf. Rep. No. 386, 101st Cong.,
1st Sess. 835, 837, 839 (1989) (describing EMTALA as requiring hospitals
to "provide medical services necessary to stabilize the individual
or to provide for treatment of the labor," and leaving that standard
unchanged).
12 See, e.g., The Random House Dictionary of the English Lan- guage 103
(2d ed. 1987) (defining "appropriate" as "suitable or fitting
for a particular purpose, person, occasion"); Webster's Third New Inter-
national Dictionary 106 (1976) ("specially suitable: fit, proper").
13 Cf. Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley,
458 U.S. 176, 188-189 (1982) (construing "free appropriate public education"
for a handicapped child to mean "educational instruc- tion specially
designed to meet the unique needs of the handicapped child, supported by
such services as are necessary to permit the child 'to benefit' from the
instruction").
14 See Gatewood v. Washington Health Care Corp., 933 F.2d 1037, 1041 (D.C.
Cir. 1991); Power v. Arlington Hosp. Ass'n., 42 F.3d 851, 857 (4th Cir.
1994); Summers v. Baptist Med. Cent. Arkadelphia, 91 F.3d 1132, 1137-1138
(8th Cir. 1996) (en banc).
15 See Correa v. Hospital San Francisco, 69 F.3d 1184, 1192 (1st Cir. 1995),
cert. denied, 517 U.S. 1136 (1996); Eberhardt v. City of Los Angeles, 62
F.3d 1253, 1258 (9th Cir. 1995); Repp v. Anadarko Mun. Hosp., 43 F.3d 519,
522 (10th Cir. 1994); Holcomb v. Monahan, 30 F.3d 116, 117 (11th Cir. 1994);
see also Vickers v. Nash Gen. Hosp., Inc., 78 F.3d 139, 143 (4th Cir. 1996).
16 In the preamble to the Interim Final Rules and Regulations cited previously
(see p. 23, supra), the Secretary declined to define the term "appropriate
medical screening examination" because of the wide range of medical
conditions presented to emergency rooms and the wide range of capabilities
in facilities and personnel available to hospitals. But she stated that,
"[w]ithin those capabilities, the examination must be sufficient to
permit the hospital to decide whether or not the individual has an emergency
medical condition." 59 Fed. Reg. 32,086, 32,099 (1994); see also Department
of Health and Human Services, Health Care Financing Administration, State
Operations Manual: Provider Certification, at V-19 (1998). Discussing whether
hospitals could maintain procedures requiring emergency room personnel to
ask emergency room patients whether they had insurance without violating
EMTALA, she stated that such a practice was acceptable "as long as
all individuals to whom the procedures apply are treated similarly. That
is, all individuals who have an emergency medical condition are served regardless
of the answers they may give to insurance questions during routine admission
screening." 59 Fed. Reg. at 32,099. See also id. at 32,100 ("The
thrust of the statute is that a hospital that offers emergency services
to some members of a community who need their emergency services (for example,
those that can pay) cannot deny such services to other members of the community
with a similar need."); State Operations Manual: Provider Certification,
supra, at V-19 ("The medical screening examination must be the same
medical screening examination that the hospital would perform on any individual
coming to the hospital's emergency department with those signs and symptoms,
regardless of the individual's ability to pay for medical care.").