La. ruling could hurt emergency care

Doctors ask Louisiana's high court to overturn a decision that would make it tougher to transfer emergency department patients to other hospitals.

By Tanya Albert, amednews staff. Nov. 12, 2001.

If a Louisiana Court of Appeals ruling stands, physicians could be vulnerable to private lawsuits for their decisions to transfer patients who come into emergency departments.

And medical liability insurance policies would not cover the large jury awards doctors could be asked to pay. Louisiana's cap on malpractice damages wouldn't apply, either.

Case at a glance

"If the decision stands, it would further put pressure on emergency department physicians making decisions," said AMA Trustee Donald J. Palmisano, MD, a physician-lawyer who practices in New Orleans. "It would have a chilling effect on emergency room decisions."

The defendants have appealed the ruling to the Louisiana Supreme Court. It is scheduled to hear arguments in the case Nov. 27. An amicus brief has been filed by the AMA, the Shreveport Medical Society, the Louisiana State Medical Society and several other parish medical societies in the state.

While other courts have not opened up physicians to private lawsuits for decisions that fall under the Emergency Medical Treatment and Active Labor Act of 1986 or state "patient dumping" laws, the Louisiana Court of Appeals, 4th Circuit earlier this year created a new cause of action.

The court ruled that a man was allowed to sue a physician under the intentional tort of patient dumping. Most -- if not all -- traditional medical liability insurance policies don't cover costs physicians would encounter if they were found guilty of an intentional act. The policies usually only cover unintentional acts, under which malpractice claims fall.

"The court has improperly created a new cause of action," Dr. Palmisano said. "The action of the physician should be dealt with under tort law as an unintentional act."

Physician's decisions

In addition to disagreeing with the court's decision to allow a private lawsuit against the physician in an EMTALA case, Dr. Palmisano questioned whether there was even an EMTALA violation in the first place.

Emergency department physician Richard Deno, MD, was the attending physician in the ED at JoEllen Smith Hospital in New Orleans. He diagnosed Louis Frank Coleman with cellulitis in his left arm and determined Coleman needed inpatient intravenous antibiotic therapy, according to court documents.

Dr. Deno believed Coleman would get better treatment at Charity Hospital of New Orleans because that hospital had better laboratory facilities and better treatment available. Dr. Deno called Charity Hospital and spoke with the resident in charge. The resident agreed to immediately admit Coleman when he arrived in the ED.

Coleman started receiving the intravenous antibiotics about seven hours after he arrived at the Charity emergency department, according to court documents. But after antibiotic treatment, x-rays found "air" in the arm's soft tissues and surgery showed that the skin, fat and bulk of the muscles in Coleman's arm were dead. Doctors amputated his arm.

Coleman sued JoEllen Smith Hospital, Dr. Deno and another physician he saw at the first hospital, claiming they didn't properly diagnose his problem and that they broke antidumping laws. Calls to Coleman's attorney were not returned.

Troubling precedent

Those in organized medicine are concerned about the precedent that could be set if the appeals court decision is not overturned.

As the case stands now, Dr. Deno would owe about $3 million that wouldn't be covered by his insurance.

"The court cited no precedent for the tort of intentional dumping," said Shreveport, La., lawyer Robert G. Pugh Jr., one of the attorneys who wrote the brief filed by the AMA and local medical societies in the state.

Dr. Palmisano said the decision should be overturned because EMTALA applies to hospitals, not physicians. Also, Louisiana law does not allow courts to create new causes of action, which is what happened in this case. "For multiple reasons, the case should be overturned," he said.

If the decision is upheld, physicians worry that it would become more difficult to practice medicine in Louisiana.

They are concerned that they would have a harder time purchasing the insurance coverage they would need to protect themselves. They are also worried that they wouldn't be able to provide reasonably priced health care to Louisiana citizens.

The AMA and the other medical societies who filed the brief said patient care might suffer if the ruling remained in place.

"Such a decision would provide a powerful incentive for physicians to retain emergency patients in rural or small hospitals with limited facilities, rather than transferring them to tertiary care centers where they have access to better care from more specialists with additional facilities at all hours of the day and night," the brief argues.

ADDITIONAL INFORMATION:

Case at a glance

Louis Coleman, individually and as father of Louis Frank Coleman v. Richard Deno, MD, Ivan Sherman, MD, and JoEllen Smith Hospital

Venue: Pending before the Louisiana Supreme Court.
At issue: Whether the court can create a private cause of action that allows patients to sue physicians for intentional "patient dumping."
Potential impact: If a lower court decision stands, physicians would be vulnerable to jury awards that wouldn't be limited by state malpractice caps. Also, traditional medical liability policies wouldn't cover the jury awards.