Violation of anti-dumping law may trigger investigation at EMMC

Posted Oct. 29, 2010, at 8:23 p.m.

BANGOR, Maine — In an emotionally charged lawsuit heard last week in U.S. District Court, the jury unanimously found that Eastern Maine Medical Center violated a weighty national law, the Emergency Medical Treatment and Active Labor Act, commonly known as EMTALA.

The Bangor jury’s verdict has caused the case to come to the attention of state and federal officials, who say an investigation of the Bangor hospital is likely.

The lawsuit stems from 2007, when doctors at EMMC sent a pregnant Millinocket woman home from the emergency department knowing she was in labor and soon would expel her 16-week fetus, which doctors said had no heartbeat.

The 1986 EMTALA law requires hospitals that participate in Medicare and Medicaid to provide “any necessary stabilizing treatment” to patients who seek care in the emergency department, after first performing a screening exam to determine the presence of an actual emergency. The protection specifically extends to pregnant women who are in labor or who are experiencing uterine contractions not determined by a physician to be false labor.

An alleged or suspected EMTALA violation is a serious event that triggers a rigorous federal investigation, according to Anne Flanagan, assistant director of the Division of Licensing and Regulatory Services within the Maine Department of Health and Human Services. The jury’s findings, Flanagan said, prompted her to refer the matter to federal officials at the Centers for Medicare and Medicaid Services who are reviewing the case and may order an official investigation.

If a violation is confirmed, hospitals may be subject to disciplinary measures that include a significant fine and a detailed plan of correction, she said Thursday.

“Hospitals are very, very unhappy when they have a substantiated EMTALA violation,” Flanagan said.

Hospitals that suspect they have violated the federal law are required to file a report with the state, she said. In other cases, complaints filed by doctors, patients or family members may trigger an investigation. But Flanagan said her office was not alerted to the possibility of any such violation or to the EMMC lawsuit until a reporter called this week with questions.

Adopted in 1986, EMTALA is sometimes known as the “anti-patient-dumping” regulation, intended to prevent hospitals from discharging or transferring patients based on their ability to pay, diagnosis, race, personality, political affiliation or other factors.

To be in violation, there need not be any actual injury to the patient, only the potential for injury or harm based on failure to screen or the failure to stabilize a determined medical emergency before discharging the patient or transferring him or her to another facility.

In the recent Bangor case, patient Lorraine Morin testified that she delivered her fetus in her bathroom at home hours after being discharged, against her protests, from the EMMC emergency department.

Morin and her attorney said she suffered substantial physical and emotional distress and was also in danger of a ruptured uterus due to having undergone a cesarean delivery in the past. The morning after Morin expelled the fetus, she was admitted to the hospital by her own obstetrician for a procedure to stop her bleeding and remove the placenta.

The hospital rejected Morin’s argument that contractions associated with a “missed abortion” constitute either true labor signaling the imminent birth of a live infant or an emergency requiring stabilization. Doctors said it is not unusual to send a woman home to deliver a nonviable fetus and that they had no record of Morin’s

previous cesarean surgery and no way of factoring the heightened risk of uterine rupture.

In his rejection of the hospital’s bid to bypass a jury trial, Chief U.S. District Judge John Woodcock was critical of the hospital’s stance.

“The court is nonplussed at EMMC’s disquieting notion that EMTALA and its regulations authorize hospital emergency rooms to treat women who do not deliver a live infant differently than women who do,” he wrote

in July. “EMMC’s contention is not justified by the language of the statute or its implementing regulations and has disturbing policy implications. There is simply no suggestion that Congress ever intended such a harsh and callous result for women who, like Ms. Morin, are carrying a non-viable fetus.”

In a conversation after the verdict last week, Morin’s attorney A.J. Greif said it was clear to the jury that the hospital had failed to meet EMTALA standards.

Before discharging his client from the emergency department, he said, doctors failed to consult EMTALA guidelines.

“I don’t think anyone went through the EMTALA analysis,” he said. “There was no EMTALA paperwork in Lorraine’s chart … [EMMC] need[s] to look at their failure to consider and comply with the provisions of EMTALA.”

At EMMC, Dr. Norman Dinerman, who served as the hospital’s chief of emergency services from 1988 until 2005 and still practices there in many capacities, steered away from discussing the specifics of the

lawsuit. While EMTALA sets a minimum legal threshold for clinical care of patients in a true emergency, he said, physicians abide by a deeper dedication to the well-being of their patients.

“In emergency medicine, we want to do the right thing, regardless of whether there’s a statute or not,” he said. “We would hope the clinical behavior would place us comfortably within EMTALA compliance.”

Emergency physicians are “marinated” in the provisions of EMTALA, Dinerman said, but “a good physician doesn’t allow EMTALA to drive medical practice.”

At the Boston offices of the Centers for Medicare and Medicaid Services, spokeswoman Roseanne Pawelec said the federal agency was unaware of the Bangor case until this week.

“This incident is under review,” she said. “We are in the process of determining whether further action is warranted by our office.”

Pawelec said there have been three recent EMTALA violations substantiated at Maine hospitals:

— In February 2009, Northern Maine Medical Center in Fort Kent was found to have violated EMTALA regulations when the emergency department refused to accept a resident from a local nursing home.

— In December 2009, Down East Community Hospital in Machias was found to have violated EMTALA regulations when emergency clinicians failed to adequately monitor a trauma patient and to rapidly transfer the patient to the most appropriate facility for treatment.

— In February 2010, Inland Hospital in Waterville was found to have violated EMTALA regulations when emergency department clinicians failed to adequately stabilize a cardiac patient before transferring

the patient to another facility.

Two other Maine hospitals are under investigation for alleged violations, she said. George Schelling, attorney for Eastern Maine Medical Center, said Thursday the result of a federal EMTALA investigation could help form

the basis for an appeal of the jury’s decision against the hospital, although many factors must be considered.

“These things don’t come up very often, he said. “EMTALA is a rare bird, especially in Maine.”

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