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This article was written by Scott R. McMillen and first published in the Florida Bar Journal in November, 1997.

The Overlooked Emergency Room Cause of Action
Section 395.1041, Florida Statutes 

  Part 1    Part 2    Part 3    Footnotes

Part 2

The Remedy

In addition to setting out these duties of examination and treatment, 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. Specifically, 395.1041(5)(b) states:

(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 action under 395.1041 with a garden variety emergency room malpractice claim will undoubtedly be met by numerous defenses. The first reaction will likely be an argument that 395.1041 was only intended by the Legislature to create a cause of action in those instances where the patient is discriminated against because the patient is indigent or uninsured. There is some indication in the legislative committee reports that treatment and transfer decisions based on economics were one of the Legislature's primary concerns in enacting 395.1041.¹¹ However, under applicable rules of statutory construction the court is not permitted to look outside the language of a statute for legislative intent, unless the court first finds the language of the statute to be ambiguous.¹² Even if a court were to believe that the Legislature meant to say something else, rules of statutory construction would not allow the court to rewrite an otherwise unambiguous statute for the Legislature.¹³

Section 395.1041 contains no ambiguity as to its scope, and it does not mention the phrase "patient dumping" at all. The statute authorizes a civil cause of action to be brought by "any person" who has suffered "personal harm" as a result of a violation of the provisions of the statute. Neither the duty to examine, nor the duty to treat, is limited to poor or uninsured people. The language creating the private civil cause of action likewise contains no such words of limitation, although certainly economic discrimination would also be actionable if that were the reason for the failure to provide emergency care and services to someone with an emergency medical condition.

Regardless of any rules of statutory construction, the primary reason it would be inappropriate to look outside of the statute to decide what the Legislature had in mind, is that the statute itself contains direct expressions of the Legislature's intentions, which even come with the label "legislative intent". First, there is a specific reference to the legislative intent for all of Chapter 395, in 395.001 which states:

395.001 Legislative intent. - - It is the intent of the Legislature to provide for the protection of public health and safety in the establishment, construction, maintenance, and operation of hospitals and ambulatory surgical centers by providing for licensure of same and for the development, establishment, and enforcement of minimum standards with respect thereto.

This language evidences a broad legislative intent to protect the public health by establishing minimum standards in the operation of hospitals. Nothing in the statement of legislative intent restricts the application of these laws for the protection of the health of only the poor or uninsured. More importantly though, there is a statement of legislative intent specific to Section 395.1041. It is contained in the first sub-section and states:

395.1041 Access to emergency services and care.
(1) LEGISLATIVE INTENT. - - The Legislature finds and declares it to be of vital importance that emergency services and care be provided by hospitals and physicians to every person in need of such care. The Legislature finds that persons have been denied emergency services and care by hospitals. It is the intent of the Legislature that the agency vigorously enforce the ability of persons to receive all necessary and appropriate emergency services and care and that the agency act in a thorough and timely manner against hospitals and physicians which deny persons emergency services and care. It is further the intent of the Legislature that hospitals, emergency medical services providers, and other health care providers work together in their local communities to enter into agreements or arrangements to ensure access to emergency services and care. The Legislature further recognizes that appropriate emergency services and care often require follow-up consultation and treatment in order to effectively care for emergency medical conditions. [emphasis supplied]

This language states in plain words a legislative intent that "emergency services and care" be provided to "every person" in need of such care, not just every poor or uninsured person. If it was the Legislature's intent to limit this section exclusively to indigent or uninsured persons, it easily could have said so by stating "The Legislature finds that people are being denied access to emergency care for financial reasons, and the intent of this statute is to prevent such conduct."
Because of differences in the language of EMTALA and 395.1041, reliance on cases decided under the federal statute should be done cautiously. It must be pointed out, however, that even under EMTALA, every federal Circuit Court of Appeals to have addressed the issue has ruled that whether a patient is indigent or carries health insurance is immaterial when a patient brings a claim under the federal act; all patients are protected.¹⁴ These federal courts reached this conclusion because EMTALA in plain words creates a cause of action on behalf of "any individual". Section 395.1041 creates a cause of action on behalf of "any person". It is unlikely the state courts of Florida will read "any person" to mean "any person discriminated against on the basis of indigency or lack of insurance."

  Part 1    Part 2    Part 3    Footnotes

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