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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 

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Footnotes

1. Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. 1395dd.

2. 42 U.S.C. 1395dd(d)(2).

3. See e.g., Vickers v. Nash General Hospital, Inc., 78 F.3d 139 (4th Cir. 1996).

4. There are no reported appellate decisions regarding any attempt by a patient to bring a claim under 395.1041. Within the last six months your author spoke about this statute at two large meetings of plaintiffs' personal injury attorneys in Florida. A show of hands revealed no knowledge of such suits statewide, although a ready willingness to begin filing them.

5. Enacted in 1988 as 395.0142, it was renumbered 395.1041 in 1992.

6. The statutory definition of a general hospital is lengthy, but for our purpose can probably be summarized as an establishment offering acute care medical services for patient visits longer than 24 hours. See Fla. Stat. 395.002(10).

7. Fla. Stat. 395.1041(3)(d)(1).

8. 42 U.S.C. 1395dd(e)(1).

9. Fla. Stat. 395.002(9). The statute also includes an express legislative recognition that "appropriate emergency services and care often require follow-up consultation and treatment in order to effectively care for emergency medical conditions." Fla. Stat. 395.1041(1).

10. Your author confesses to an inability to determine the meaning of the last sentence of this subsection. On its face it appears that the legislature wanted no future expansion of liability by the adoption of new administrative rules under the statute.

11. See Florida House of Representatives Health Care Committee, Final Staff Analysis and Economic Impact Statement, CS/SB 598 and House Bill 1615 (July 21, 1988).

12. Florida v. Egan, 287 So.2d 1, 3 (Fla. 1973) ("Where the legislative intent as evidenced by a statute is plain and unambiguous, then there is no necessity for any construction or interpretation of the statute, and the courts need only give effect to the plain meaning of its terms.").

3. Van Pelt v. Hilyard, 78 So. 693, 694 (Fla. 1918) ("Even where a court is convinced the Legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity. If it has been passed improvidently the responsibility is with the Legislature and not the courts.").

14. Gatewood v. Washington Health Care Corp., 933 F.2d 1037, 1040 (D.C. Cir. 1991) ("Though the Emergency Act's legislative history reflects an unmistakable concern with the treatment of uninsured patients, the Act itself draws no distinction between persons with and without insurance. Rather, the Act's plain language unambiguously extends its protection to 'any individual' who seeks emergency room assistance."); Correa v. Hospital of San Francisco, 69 F.3d 1184, 1194 (1st Cir. 1995), cert. denied, 116 S. Ct. 1423 (1996) ("We hold, therefore, that EMTALA, by its terms, covers all patients who come to a hospital's emergency department, and requires that they be appropriately screened, regardless of insurance status or ability to pay."); Power v. Arlington Hospital Association, 42 F.3d 851, 858 (4th Cir. 1994) ("There is nothing in the statute itself that requires proof of indigence, inability to pay, or any other improper motive on the part of the hospital as a prerequisite to recovery. The language of subsection 1395dd(a) simply refers to 'any individual' who presents to the emergency room."); Cleland v. Bronson Health Care Group, 917 F.2d 266, 269 (6th Cir. 1990) ("While the legislative history might be of assistance in interpreting ambiguous words or phrases of limitation, there are simply none in this language. The benefits and rights of the statute extend to 'any individual' who arrives at the hospital.") Summers v. Baptist Medical Center, 91 F.3d 1132, 1137 (8th Cir. 1996) ("As we have previously indicated, no evidence of a purpose to 'dump' a patient is required. Nor does the statute require any other particular motivation. In this sense, the statute is as plaintiff argues, a strict liability provision. If a hospital fails to provide an appropriate medical screening examination, it is liable, no matter what the motivation was for this failure"); Collins v. DePaul Hospital, 963 F.2d 303, 308 (10th Cir. 1992). ("We do agree with counsel that the fact that [plaintiff] was non-indigent, i.e., he could and did pay his medical and hospital bills, does not defeat his [EMTALA] action. The fact that Congress, or some of its members, viewed [EMTALA] as a so-called 'anti-dumping' bill, i.e., a bill designed to prohibit hospitals from 'dumping' poor or uninsured patients in need of emergency care, does not subtract from its use of the broad term 'any individual'.").

15. See e.g., Summers v. Baptist Medical Center, supra.

16. See e.g., Cleland v. Bronson Health Care Group, Inc., supra.

17. Fla. Stat. 395.002(9).

18. 42 U.S.C. 1395dd(b)(1).

19. Fla. Stat. 395.1041(3)(a)(1).

20. Fla. Stat. 95.11(4)(b) states in part "an 'action for medical malpractice" is defined as a claim in tort or contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care."

21. Fla. Stat. 95.11(3)(f) provides for a four year statute of limitations for "an action founded on a statutory liability." This four year period will only begin running when the last element of the cause of action occurs. Fla. Stat. 95.031(1). There is a four year statute of repose for medical malpractice cases, with the time commencing when the negligent act occurs. Fla. Stat. 95.11(4)(b). This has been held to bar a medical malpractice suit even when the last element of the cause of action, i.e., the damages, have not occurred until after the four years has run. See e.g., Damiano v. McDaniel, 689 So.2d 1059 (Fla. 1997). Query whether an emergency room malpractice victim can avoid the four year statute of repose by suing under 395.1041?

22. Fla. Stat. 768.13(2)(b).

23. Fla. Stat. 395.1041(3)(g).

24. Fla. Stat. 766.102(6).

25. See Fla. Stat. 766.106, et seq.

26. During medical malpractice pre-suit screening a defendant may offer to go to pre-suit binding arbitration. If plaintiff arbitrates, there are automatic caps on damages. If plaintiff declines to arbitrate after the offer is made, as a sanction for declining, other caps will be imposed on plaintiff's damages at trial. Either way the defendant has the power to unilaterally cap damages merely by making the arbitration offer during the 90 day pre-suit screening period. See Fla. Stat. 766.209.

7. Fla. Stat. 768.21(8).

28. Diaz v CCHC-Golden Glades, Ltd., 696 So.2d 1346 (Fla. 3rd DCA 1997).

29. Id.

30. See Fla. Stat. 766.301 et seq.

31. The definition of an "emergency medical condition" expressly includes the prospect of jeopardy to the health of a pregnant woman or fetus, or when there is evidence of the onset of persistent uterine contractions or rupture of membranes. Fla. Stat. 395.002(8).

32. Fla. Stat. 766.303(2).

33. The general comparative fault statute states it applies "to negligence cases [which] includes, but is not limited to, civil actions for damages based upon theories of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty or like theories." Fla. Stat.768.81(4)(a) . Special comparative fault statutes for teaching hospitals state they apply to actions "for damages for personal injury or wrongful death arising out of medical malpractice, whether in contract or tort." See e.g. Fla. Stat. 766.112 and 768.81(6).

34. See Fabre v. Marin, 623 So.2d 1182 (Fla. 1993).

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