The elderly and patient dumping.

• Author: Smith, George P., II

Although patients in "right to refuse medical treatment" cases have trouble terminating their medical care, many persons have difficulty obtaining medical care in the first place because they are refused admission to hospitals. This problem is termed "patient dumping."(1)

Also known as "demarketing of services" or "management of patient mix,"(2) patient dumping refers to the hospital practice of transferring or refusing to treat persons who are indigent, uninsured, or otherwise undesirable to admit.(3) Patient dumping has origins in the common law no-duty rule.(4) This rule provides that hospitals have no duty to admit and treat all patients who seek care and, in some cases, have no duty even to specify reasons for rejecting patients.(5) Hospitals often "dump" patients who arrive at hospital wards either without any health insurance or with only Medicaid insurance--a program which physicians know provides low reimbursement payments.

The economic pressures placed upon hospitals over the past decade increased the frequency of patient dumping in cases falling under the no-duty rule.(6) This rule and the ability of hospitals to refuse medical treatment have been limited by the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1986, 42 U.S.C. [sections] 1395dd (1994) and the Emergency Medical Treatment and Active Labor Act (EMTALA),42 U.S.C. [sections] 1395dd (1994)--an amendment to COBRA.

In the final analysis, it will be seen that the elderly will be secure from the indignity of patient dumping only when society and the health care industry acknowledge their inherent value as an important segment of contemporary American life.

EMTALA: Patient Dumping and the Federal Response

Before COBRA and EMTALA limited a hospital's right to refuse medical treatment to patients, the common law's no-duty rule was restricted only by four exceptions: 1) once a hospital provides medical care, it must do so nonnegligently; 2) once a person gains "patient" status, the caregiver must aid and protect that patient; 3) where a person relies upon a caregiver's custom of providing emergency care, a duty to provide that care exists; and 4) true "emergency" cases obviate the no-duty rule.(7) Although it has been asserted that the no-duty rule was applied narrowly,(8) its application was apparently widespread enough to provoke Congress to pass EMTALA.(9) Before EMTALA, experts estimated that hospitals dumped up to 250,000 patients a year.(10)

Congress recognized the public need to reduce the incidence of patient dumping when it enacted COBRA and EMTALA's anti-dumping provisions.(11) Section 1395 of EMTALA provides in pertinent part: "If a patient at a hospital has an emergency medical condition which has not been stabilized ... the hospital may not transfer the patient unless--the transfer is an appropriate transfer to that facility." (42 U.S.C. [sections] 1395 (c)(1)(B) (1994)). EMTALA applies to hospitals that receive federal funds from the Medicare and Medicaid programs, and provides for civil monetary fines against participating hospitals and physicians who violate it.(12)

Hospitals and physicians will violate [sections] 1395 either "by failing to detect the nature of the emergency condition through inadequate screening procedures, [or after detecting the emergency nature of the patient's condition,] by failing to stabilize the condition before releasing the plaintiff."(13) However, a threshold requirement needed to protect a patient under EMTALA is that the patient must arrive at a hospital's emergency room in an emergency condition.(14) In sum, then, to plead a [sections] 1395 claim, a patient must prove: 1) that he or she arrived at a defendant hospital's emergency room in an emergency condition; and 2) either that the hospital failed to screen the patient adequately in order to determine an emergency condition or that the hospital discharged or transferred the patient before the emergency condition had passed.(15)

EMTALA's powers are broad. It requires...