The overlooked emergency room cause of action: F.S. 395.1041.

• Author: McMillen, Scott R.
• Position: Florida

Most Florida lawyers who handle medical malpractice cases probably have at least a general familiarity with a federal statute known as "EMTALA,"which is also known as the federal "anti-dumping" statute.[1] Passed in 1986, it was initially intended to curtail the practice of hospital emergency rooms that were refusing to examine or treat indigent or uninsured patients, or that were inappropriately transferring them to other hospitals, i.e., "dumping" the patients.

EMTALA requires hospitals to perform a screening examination of all patients who come to emergency rooms. If patients are found to have a serious medical condition, they must be stabilized before discharge or transfer. It creates a private cause of action on behalf of "any individual" who suffers personal harm" as a result of a hospital's violation of these examination and stabilization requirements.[2] Since its inception, plaintiffs' lawyers have had limited success using EMTALA as a remedy for what might otherwise be considered a garden variety medical malpractice claim for misdiagnosis in an emergency room.[3]

Apparently overlooked by the plaintiffs' bar,[4] Florida passed its own version of EMTALA in 1988, when it enacted F.S. [sections]395.1041.[5] While the Florida Legislature borrowed some language from EMTALA, it also expanded the duties of emergency room health care providers and created a private cause of action that is broader in scope than the cause of action provided under federal law. This article discusses possible uses of the remedy provisions of F.S. [sections]395.1041 in cases in which an emergency room physician inadequately examines a patient resulting in a misdiagnosis, leading to injury to the patient.

The Duty

F.S. [sections] 395.1041 creates many duties, the most important of which is contained in [sections] 395.1041(3)(a), which states:

Every general hospital which has an emergency department shall provide emergency services and care for any emergency medical condition when:

1. Any person requests emergency services and care; or

2. Emergency services and care are requested on behalf of a person by:

   (a) An emergency medical services provider who is rendering care to or transporting the person; or

   (b) Another hospital, when such hospital is seeking a medically necessary transfer, except as otherwise provided in this section.

   In short, if a person enters a general hospital[6] that has an emergency department seeking medical care for an "emergency medical condition," the hospital is required to provide "emergency services and care." Hospitals are further required by the statute to ensure the provision of these services at all times, either directly or through arrangements with one or more physicians.[7]

   The terms "emergency medical condition" and "emergency services and care" are terms of art under the statute and are defined at the beginning of F.S. Ch. 395 as follows:

   395.002 Definitions.--As used in this chapter:

   (8) "Emergency medical condition" means:

   (a) A medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following:

1. Serious jeopardy to patient health, including a pregnant woman or fetus.

2. Serious impairment to bodily functions.

3. Serious dysfunction of any bodily organ or part.

   (9) "Emergency services and care" means medical screening, examination, and evaluation by a physician, or, to the extent permitted by applicable law, by other appropriate personnel under the supervision of a physician, to determine if an emergency medical condition exists and, if it does, the care, treatment, or surgery by a physician necessary to relieve or eliminate the emergency medical condition, within the service capability of the facility.

   The definition of an "emergency medical condition" was borrowed nearly verbatim from EMTALA,[8] and the definition is broad enough that virtually any medical condition significant enough to be the basis of an emergency room malpractice claim should also fit under F.S. [sections]395.1041. Certainly most emergency room malpractice claims involve allegations of either serious impairment to bodily functions or serious dysfunction of a bodily organ or part. If a claim does not have those features, it probably is not economically reasonable to pursue.

   The definition of the required "emergency services and care" in F.S. [sections] 395.1041 is also quite broad. While it is unclear if there is any real difference in the words "screening," "examination," and "evaluation," it is clear that "emergency services and care" has two main components: 1) an attempt at diagnosis by some type of screening or medical work-up; and 2) treatment of any existing emergency medical condition, which is broad enough to include surgery, if required.[9]

   The Remedy

   In addition to setting out these duties of examination and treatment, F.S. [sections] 395.1041, like EMTALA, also expressly creates a statutory private right of action for any person harmed as a result of the failure to fulfill these obligations. F.S. [sections] 395.1041(5)(b) states specifically:

   (b) Any person who suffers personal harm as a result of a violation of this section or the rules adopted hereunder may recover, in a civil action against the responsible hospital administrative or medical staff or personnel, damages, reasonable attorney's fees, and other appropriate relief. However, this paragraph shall not be construed to create a cause of action beyond that recognized by this section and rules adopted under this section as they existed on April 1, 1992.[10]

   Application to Malpractice Claim

   In an often repeated malpractice case scenario, a patient comes into an emergency room complaining of significant chest and shoulder pain but after an examination is sent home with a diagnosis of indigestion and possible reflux. Three days later the patient is dead, with an autopsy finding of a three-day-old heart attack that would have been treatable with an earlier diagnosis. This patient certainly had an "emergency medical condition" (admittedly known only in hindsight), for which the patient sought treatment. It is also clear the patient did not receive a "medical screening, examination, and evaluation" to determine that this condition existed, nor did the patient receive the "care, treatment, or surgery ... necessary to relieve or eliminate the condition," and this resulted in personal harm. What could be simpler?

   But Malpractice Isn't "Dumping"

   Any attempt by a patient's lawyer to combine a cause of...