A crisis in the ED: Liability protection needed STAT

My son and I were recently involved in a motor vehicle crash. The car in which we were riding was a total loss. As a pediatric surgeon and an instructor in the American College of Surgeons (ACS) Advanced Trauma Life Support® program for more than 20 years, I was able to quickly assess that neither my son nor I had life-threatening injuries. However, mindful of the wisdom of not treating oneself or one’s family members, I had both of us evaluated by one of my surgical colleagues at the ACS-accredited trauma center where I work. Despite an underlying feeling we would both be fine, I have never felt more vulnerable and anxious. I am eternally grateful to my surgery and emergency medicine colleagues for their rapid, efficient, and thorough evaluation as well as for the compassionate care we received. Fortunately, there were no serious injuries.

Trauma surgeons and emergency medicine physicians throughout the U.S. stand at the ready on a daily basis, at all hours of the day and night and on holidays and weekends to assist patients in their time of need. My personal experience reminded me once again of the critical nature of having these services available and how the very availability of such services is threatened by the current liability environment.

At the 2011 Joint Surgical Advocacy Conference, surgeons from a broad range of specialties and subspecialties across the country were briefed on legislative initiatives and pending regulations that could potentially impact their practices and the care of their patients. I first became aware of H.R. 157, the Health Care Safety Net Enhancement Act of 2011, at this event. Introduced by Rep. Pete Sessions (R-TX), at press time, the bill had more than 32 cosponsors in the U.S. House of Representatives. In essence, the legislation would apply the Federal Tort Claims Act to cases involving services mandated under the Emergency Medical Treatment and Active Labor Act (EMTALA).


EMTALA is a federal statute passed in 1986 as part of the Consolidated Omnibus Budget Reconciliation Act (COBRA). Under this legislation, hospitals and their emergency departments (EDs), as well as the physicians on call staffing those EDs, have three obligations. First, they must provide a medical screening examination to any individual who requests it in order to determine whether an emergency condition exists. This examination and any necessary treatment cannot be delayed due to the patient’s inability to pay, inadequate insurance coverage, or citizenship and legal status. Second, the emergency room or other inpatient units of hospitals are required to treat the patient until the condition has either been resolved or stabilized. Inpatient care provided must be at the same level (that is, to the fullest extent of the institution’s capabilities) for all patients regardless of their ability to pay. Third, if a hospital does not have the capability or appropriate specialists necessary to treat the patient’s condition, the institution may then transfer the patient to a facility with the necessary resources; in other words, transfer to another institution is only allowed in order to facilitate the provision of a higher level of care.1,2

EMTALA applies to all hospitals that accept Medicare payment from the U.S. Department of Health and Human Services’ Centers for Medicare & Medicaid Services (CMS). In other words, virtually every U.S. hospital is subject to the mandates in EMTALA. Stiff penalties apply for violation of the law.

EMTALA was originally passed to stop the practice of “patient dumping,” whereby hospitals would transfer patients to other facilities if the patient was financially unable to pay or had insufficient insurance coverage for the care necessary to treat their condition. The cost of the emergency care mandated by EMTALA is not directly covered by the government. Consequently, EMTALA has been criticized by some health policy experts as an unfunded mandate, given that much of the emergency care provided in the U.S. is uncompensated. Hospitals and physicians may write off the expense or charges for the care provided as charity or bad debt for tax purposes. However, because of financial pressures, many hospitals have closed and/or consolidated, resulting in a decrease in ED capacity while at the same time the demand for emergency care has increased.2,3

Physician shortage

By the very nature of their profession, trauma surgeons and emergency medicine providers cannot select their cases. However, if they could, most of these providers would not want to do so. Surgeons and other health care professionals who choose a career in the provision of emergency care thrive on never knowing what is going to roll through the door next. Because trauma surgeons and emergency medicine physicians treat a broad spectrum of conditions and injuries, they rely heavily on other physicians with specific specialized areas of expertise to provide consultative services.

A 2006 study from the Institute of Medicine titled The Future of Emergency Care in the United States Health System addresses the shortage of physicians who are capable of staffing and provide consultative services in our nation’s EDs.4 For a number of reasons, it has become increasingly difficult to secure adequate numbers of physicians of various specialties to provide coverage for EDs. One of the critical causes of this problem is the additional liability risk of working in the ED or providing consultative services for ED patients. The care that trauma surgeons, emergency medicine physicians, and health care professionals working in this inherently challenging environment provide often requires that critical decisions be made based on limited information in a very short time frame. In addition, emergency care professionals usually do not have an established relationship with the patient. As a result, those providing care in the ED incur a significantly increased exposure to medical liability claims as compared with other professionals who have been able to build the trust of their patients.

Physicians and surgeons in the early stages of their careers will often actively participate in trauma call and ED call as part of their effort to build their practice. These younger physicians and surgeons are leaving states with the most severe liability issues. A study by the Pew Charitable Trusts of resident physicians training in general surgery and emergency medicine in the state of Pennsylvania found these residents named malpractice costs as the reason for leaving the state three times more often than any other factor.5,6 In addition, according to an American Hospital Association study, the medical liability crisis has led to difficulties with physician recruitment by hospitals, which has already resulted in less coverage for their EDs.7 In recent years, lack of adequate physician coverage has ultimately resulted in the closure of trauma centers in the states of Florida, Mississippi, Nevada, Pennsylvania, and West Virginia.4,8-10 Recognizing these concerns and the attendant cause and effect relationship, in 2005, the congressionally created EMTALA Technical Advisory Group recommended that HHS take action to amend the EMTALA statute in order to provide liability protection for both physicians and hospitals who were acting in accordance with the mandates of the law.11

Federal Tort Claims Act

The Federal Tort Claims Act of 1946 (FTCA) is the statute by which the U.S. government authorizes torts to be brought against itself.12 The law was originally passed after a B-25 bomber flown in thick fog crashed into the north side of the Empire State Building. The act gave American citizens the right to sue the federal government for the first time. Eight months after the crash, the federal government had offered compensation to the survivors and families of those killed. While some of these individuals accepted the offer, others filed a lawsuit which ultimately culminated in the passage of the legislation.13

In essence, the FTCA permits private parties to file suit against the U.S. in federal court for torts committed by persons acting on behalf of the U.S. As such, it represents a limited waiver of sovereign immunity. The FTCA specifically exempts claims based upon the performance or failure to perform a discretionary function or duty. In the 56 years since its passage, the FTCA has been the legal mechanism by which persons injured as a result of acts of federal employees, committed within the scope of their employment, receive compensation. According to a 1988 amendment note, the purpose of the act is to protect federal employees from personal liability for common law torts committed within the scope of their employment, while providing persons injured by the common law torts of federal employees with remedy against the U.S.14

Successes by the states

On a federal level, little has changed in the area of tort reform over the past few decades. However, states like Texas that have enacted comprehensive tort reform have seen an influx of physicians. In addition, since Texas passed tort reform legislation in 2003, liability insurance rates have decreased and charitable care has increased.15,16 California passed its landmark Medical Injury Compensation Reform Act (MICRA) in 1975. Comparatively, in the 37 years since MICRA was enacted, California providers have seen their malpractice premiums rise by 283 percent versus the 925 percent increase seen by providers in the other 49 states. In addition, California has more physicians, surgeons, and subspecialists per capita than states with higher malpractice premiums. It would seem logical to attribute at least part of this to the effect of MICRA.17-19

Frustrations on the federal level

The reasons for maintenance of the status quo on the national level are multiple, complex, and, of course, political. Because of the usual partisan gridlock and the significant monetary contributions made by the trial attorney lobby, federal resolution of this issue has thus far been unattainable. Solutions are possible only if the following developments occur. First, the blame game between physicians, attorneys, and their respective political champions must stop and be replaced with a common-sense approach that focuses on the shared issues between these professionals who serve the public in varying capacities. Most people would agree it is an absolute necessity that trauma surgery and emergency medical services continue to be available for the American people in their hour of greatest need. Certainly, we would all want such services available for ourselves and our family in the unfortunate event the need should arise. Based on the data presented earlier in this article, we should also be able to agree that we need to be concerned about the health care system’s ability to retain adequate numbers of physicians willing to provide these services. A significant part of their reluctance to do so is borne out of the fact that such work puts them at increased risk of being involved in litigation.

Second, problems in our country go unresolved for far too long because those in positions of power who are sent forth to work on the solutions are often tempted to “swing for the fences.” The more global issue of federally enacted tort reform would best be addressed by playing “small ball”—at least at the outset. Though numerous other comprehensive bills have been introduced, it seems less likely they will ever be able to glean enough bipartisan support to become law. On the other hand, it is hard to see how any member of Congress could legitimately argue against providing the same protections afforded to federal employees to trauma surgeons, emergency medicine physicians, and their consulting specialist colleagues when they are acting under the mandates of a federal law.

The Health Care Safety Net Enhancement Act of 2011 addresses the growing crisis in access to emergency care by deeming emergency and on-call physicians who provide EMTALA-related services as federal employees under the Public Health Safety Act for purposes of any civil action that may arise due to providing that EMTALA-related care.

I am reminded of the response that a wise man gave when asked, “How do you eat an elephant?” His response was, “One bite at a time.” H.R. 157 is a good first bite. It simply mandates federal protection to those surgeons and physicians who are providing not just the care that it is their passion to provide, but also the care that is federally mandated under EMTALA.

By protecting those who stand at the ready 24 hours a day, 365 days a year to care for patients when they are injured—exercising their remarkable skills to the best of their ability in a high-stress environment—we not only take a meaningful step toward the resolution of the global tort reform issue but, more importantly, take a significant step toward continuing to assure ourselves of the highest quality trauma and emergency care.


  1. Examination and Treatment for Emergency Medical Conditions and Women in Labor, 42 USC §1395DD (2008).
  2. American College of Emergency Physicians. EMTALA main points. Available at: www.acep.org/content.aspx?id=25936. Accessed January 25, 2012.
  3. Institute of Medicine Committee on the Future of Emergency Care in the U.S. Health Care System. Report brief 2006. Available at: www.iom.edu/~/media/Files/Report%20Files/2006/Hospital-Based-Emergency-Care-At-the-Breaking-Point/EmergencyCare.ashx. Accessed January 25, 2012.
  4. Institute of Medicine Committee on the Future of Emergency Care in the U.S. Health Care System. Hospital Based Emergency Care: At the Breaking Point. Washington, DC: National Academy Press; 2006;209.
  5. The Pew Charitable Trusts. New survey says mounting medical malpractice costs in PA. affect residents’ decisions to stay in state [press release]. Available at www.pewtrusts.org/news_room_detail.aspx?id=19190. Accessed January 25, 2012.
  6. Mello MM, Kelly CN. Effects of a professional liability crisis on residents’ practice decisions. Obstet Gynecol. 2005;105: 1287-1295.
  7. American Hospital Association. Taking the pulse: The state of America’s hospitals. Available at: www.hospitalconnect.com/ahapolicyforum/resources/content/TakingthePulse.pdf. Accessed January 25, 2012.
  8. University of South Florida. A comprehensive assessment of the Florida health system. Available at: www.doh.state.fl.us/demo/Trauma/PDFs/Final_Trauma_Assessment_Report.pdf. Accessed January 25, 2012.
  9. Center for Mississippi Health Policy. Mississippi trauma care system: Life saving care is no accident. Available at: www.mshealthpolicy.com/documents/MSTraumaCareSystemReportJan07.pdf. Accessed January 25, 2012.
  10. American College of Surgeons Committee on Trauma. Trauma system consultation, Clark County, Nevada, May 16-19. Available at: www.southernnevadahealthdistrict.org/download/trauma/ACSfinal.pdf. Accessed January 25, 2012.
  11. Centers for Medicare & Medicaid Services. Extract of Final Report of the Emergency Medical Treatment and Labor Act Technical Advisory Group to the Secretary U.S. Department of Health and Human Services. Available at: www.cms.gov/EMTALA/Downloads/EMTALA_Final_Report_Summary.pdf. Accessed January 25, 2012.
  12. Tort Claims Procedure, 28 USC §2671.
  13. Richman J. The day a bomber hit the Empire State Building. National Public Radio. Available at: www.npr.org/templates/story/story.php?storyID=92987873. Accessed January 25, 2012.
  14. CRS Report for Congress Federal Tort Claims Act, Updated December 11, 2007. Available at: www.fas.org/sgp/crs/misc/95-717.pdf. Accessed January 25, 2012.
  15. Texas Medical Association. Proposition 12 produces healthy benefits. Available at: www.texmed.org/Template.aspx?id=5238. Accessed January 25, 2012.
  16. American Medical Association. Medical liability reform now! Available at: www.ama-assn.org/resources/doc/arc/mlr-now-2011.pdf. Accessed January 25, 2012.
  17. Walters A. Medical liability reform and the states. Bull Am Coll Surg. 2010;95(3):29-30.
  18. Metzler IS, Meara JG. Medical liability reform: Evidence for legislative and alternative approaches. Bull Am Coll Surg. 2012; 97(1):6-11.
  19. Pollack J, Selzer D, Meara JG. The state of medical liability reform. Bull Am Coll Surg. 2011;96(7):22-25.

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