(The information on this site applies to Florida only)

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 3

Broader Than EMTALA

In responding to a cause of action under 395.1041, defense lawyers may also cite to a number of federal cases under EMTALA which suggest that EMTALA, while not requiring economic discrimination, nevertheless was never intended to be a substitute cause of action for a standard emergency room medical malpractice case.15 Some federal courts have stated that the EMTALA remedy is designed for situations in which the patient, for whatever reason, is not given the standard medical screening examination that the hospital routinely gives to all patients similarly situated.16 It is in this area that the most caution should be used in applying federal EMTALA decisions to the interpretation of 395.1041, because of the material differences in the description of the duties required by the two statutes.

As stated earlier, the Florida Legislature borrowed the definition of an "emergency medical condition" from the federal statute. Beyond that, the language of Florida's statute departs considerably. In the first instance, EMTALA only requires "stabilization" of the emergency medical condition, or transfer to a facility better able to treat the patient. Rather than require only stabilization, the Florida Legislature went further by requiring what it calls "emergency services and care", which it defined to include "care, treatment or surgery by a physician necessary to relieve or eliminate the emergency medical condition".17 Arguably, this exceeds the duty of mere "stabilization"; it requires treatment to eliminate the problem.

But even if a court equated "stabilization" with "elimination" of the emergency condition, the statutes are different in a more significant way. The most important difference in the two statutes is in the description of when this duty either to stabilize or treat the patient arises. EMTALA states "if any individual (whether or not eligible for benefits under this title) comes to a hospital and the hospital determines that the individual has an emergency medical condition" [emphasis supplied], the hospital must either stabilize the patient or transfer the patient to a different facility.18 In other words, under the federal statute, this duty to stabilize (or transfer) only arises if the hospital first determines after examination that the patient does in fact have an "emergency medical condition".

In stark contrast to EMTALA, the Florida statute contains no requirement that before treatment must be rendered the provider must actually make a diagnosis that the patient has an "emergency medical condition". Instead, the Florida statute merely says that every hospital "shall provide emergency services and care for an emergency medical condition when any person requests emergency services and care."19

On its face, this language appears to create strict liability on the part of the health care provider any time an "emergency medical condition" exists and is untreated, irrespective of whether the health care provider actually makes a diagnosis that an emergency medical condition does exist. While some plaintiffs may then argue 395.1041 creates strict liability for any failure to diagnose and treat an emergency medical condition, that is probably an unfair reading of 395.1041 as a whole. The parameters under which liability may attach against the provider are further clarified in sub-section (3)(g) of 395.1041, which adds:

(g) Neither the hospital nor its employees, nor any physician, dentist, or podiatrist shall be liable in any action arising out of a refusal to render emergency services or care if the refusal is made after screening, examining, and evaluating the patient, and is based on the determination, exercising reasonable care, that the person is not suffering from an emergency medical condition or a determination, exercising reasonable care, that the hospital does not have the service capability or is at service capacity to render those services.

In other words, under Florida's statute, so long as the health care provider actually conducts the required "screening, examination, and evaluation" of the patient, and, using reasonable care, concludes there is no "emergency medical condition" (or if there is, it is beyond the service capability or capacity of the hospital to treat it), then there will be no civil liability for failure to treat. This exculpation from civil liability is a clear indication of the legislative intent as to when civil liability will be imposed. To state it affirmatively rather than negatively, liability is imposed under 395.1041 if a patient suffers personal harm because (1) the health care provider refuses to render any examination of the patient, or (2) the health care provider does conduct an examination, but falls below the standard of reasonable care in doing so, and for that reason fails to provide the necessary treatment for the condition. Returning to our scenario of the undiagnosed heart attack victim, if the reason the treatment was not provided for the emergency condition was because the physician failed to exercise reasonable care in conducting the examination, then liability should attach under 395.1041.


Possible Advantages of 395.1041

There is a long list of possible advantages to plaintiffs in bringing an emergency room malpractice case under 395.1041, or at least in pleading it with a cause of action for malpractice in a separate count. An immediately obvious benefit is that under 395.1041(5)(b) a prevailing patient has an entitlement to attorneys' fees but a prevailing defendant does not.

Another probable benefit is the application of the four year statute of limitations for statutory causes of action. Section 95.11(4)(b) creates a two year statute of limitations for medical malpractice cases but specifically defines medical malpractice as claims "in tort or contract."20 An action under 395.1041 is a statutory cause of action, not based on tort or contract, and will probably allow the plaintiff to use the four year statute of limitations available for statutory causes of action.21

In some situations in emergency room medical malpractice cases the conduct of the emergency medicine physician or nurse must reach the level of "reckless disregard" before a malpractice claim can be pursued.22 Section 395.1041 may overcome this limitation because it expressly creates liability if the health care provider fails to treat the emergency medical condition because his examination fell below standards of "reasonable care".23

In negligence claims against emergency room physicians there also is a special statute requiring that expert witnesses have substantial experience working in an emergency room setting within the preceding five years.24. Query whether this limitation on experts applies to a statutory cause of action under 395.1041?

If some of these special rules for medical malpractice cases do not apply, then perhaps there is also no need to go through medical malpractice pre-suit screening25 for a claim under 395.1041. Not only would the plaintiff avoid the ninety day delay in getting his complaint filed in court, but if there is no pre-suit screening there would be no opportunity for a defendant to offer to arbitrate damages under F.S.766.106, or 766.207, and thereby unilaterally cap the plaintiff's damages.26

Florida's wrongful death statute discriminates against family members of certain medical malpractice victims. Under current law the adult children of unmarried decedents, and the parents of unmarried adult decedents, are denied recovery in death cases arising out of medical malpractice, but not in death cases arising out of any other type of tort.27 Florida's Third District Court of Appeal recently held that damages in a federal EMTALA death action are limited to those amounts that could be recovered in a Florida medical malpractice wrongful death claim.28 The ruling was predicated on express language in the EMTALA statute limiting damages to "those damages available for personal injury under the law of the state where the hospital is located."29 Since F.S. 395.1041 does not delineate the scope of damages recoverable, but states merely that "any individual who suffers personal harm may recover damages, reasonable attorneys' fees, and other appropriate relief," it is possible that the wrongful death malpractice damage limitations may be avoided if the claim is brought under F.S. 395.1041.

In an obstetrical case it may be that the no-fault remedies and immunities provided by NICA30 will not apply to a cause of action under 395.1041. Section 395.1041 specifically covers women in labor.31 On the other hand, the NICA statute says it excludes "all other rights and remedies at common law or otherwise."32

Finally, perhaps of most interest to the plaintiffs' bar is the possibility that with a pure statutory cause of action the concepts of comparative fault33 will be inapplicable. In some cases it would be a huge benefit to plaintiffs to avoid efforts by defendants to allocate fault to non-parties to the action.34


Conclusion

Once the plaintiffs bar fully awakens to the possibilities of a cause of action under 395.1041, it will undoubtedly be a number of years before many of these issues are resolved by the appellate courts. At the very least, 395.1041 adds the additional element of attorneys' fees for a prevailing plaintiff, but not a prevailing defendant. That advantage alone should cause a significant increase in claims.

  Part 1    Part 2    Part 3    Footnotes