2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

Plaintiff had a routine monitoring appointment at Paoli scheduled for the Monday ofWeek 34 of her pregnancy. Two days before her appointment, she called Dr. McConnell twice,complaining of contractions, discomfort due to her large size and decreased fetal movement. Dr.McConnell informed plaintiff that she could come into Lankenau Hospital but that nothing couldbe done until Monday. Plaintiff chose not to go to the hospital that weekend and did not believethat her condition was emergent.That Monday plaintiff arrived at Paoli for her routine monitoring appointment. Duringher appointment, a fetal non stress test was performed. The stress test did not show expectedheart rate variability-normal accelerations and decelerations. Additionally, during the stress test,plaintiff began experiencing contractions. Due to these factors as well as plaintiff’s abdominalcircumference (fetus weighed 11 lbs.), Dr. Gerson of Paoli recommended that plaintiff should besent to Lankenau Hospital for additional care. Plaintiff’s husband inquired if she should be takento Lankenau via ambulance, to which Dr. Gerson replied that it was not necessary. Plaintiff’shusband then drove plaintiff to Lankenau. On the way to the hospital, they stopped at home.Once Plaintiff arrived at Lankenau, she had to wait 15 to 20 minutes for a room. Plaintiff wasconnected to a monitor and her condition “worsened quickly”. Shortly thereafter, a physicianfrom Dr. McConnell’s group looked at the “preliminary results” and rushed plaintiff into surgerywhere she gave birth via caesarean section. Her child was born with severe brain damage.Plaintiff brought suit in federal court under the Emergency Medical Treatment and ActiveLabor Act (“EMTALA”). The District Court Granted summary judgment holding that plaintifffailed to offer sufficient evidence to raise a reasonable inference that defendants knew thatplaintiff presented a “medical emergency”.The Third Circuit affirmed the decision of the district court holding that the EMTALAdoes not apply to outpatient visits even if the patient is “later found to have an emergencymedical condition and [is] transported to the hospital’s dedicated emergency department.” TheThird Circuit arrived at this holding by adopting the reasoning set forth in regulationspromulgated by the Department of Health and Human Services’ Center for Medicare andMedicaid Services. 42 C.F.R . § 489.24(a)-(b). (The Court did leave the door open for a claimunder the EMTALA in a situation where an individual comes to a hospital requesting treatmentfor an emergent condition despite having a pre-scheduled appointment within the hospital for arelated or unrelated reason.) Therefore, because plaintiff presented to Paoli for a regularlyscheduled appointment, she could not maintain an action under the EMTALA.Despite the above holding, the Third Circuit also decided to analyze the substance ofplaintiff’s “stabilization claim” under the EMTALA for “future guidance.” Plaintiff’s EMTALAclaim alleged that defendants violated EMTALA because they did not stabilize her emergentcondition and inappropriately transferred her. The Court held that in order to maintain astabilization claim under the EMTALA, plaintiff must show that plaintiff 1) had an emergencymedical condition; 2) the hospital actually knew of the condition; and 3) the patient was notstabilized before transfer. The Court held that plaintiff cannot be successful in a EMTALAstabilization claim unless the defendant has “actual knowledge” of plaintiff’s emergency medicalcondition. Based on the facts outlined above, the Court found that “there is no evidence that anyof the hospital staff at Paoli, and specifically Dr. Gerson, actually knew that [plaintiff’s]60