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Emergency services

Adventist Health System v. Blue Cross and Blue Shield of Florida, 934 So. 2d 602 (Fla. App. 2006)

Also under Managed care payments and Payment issues (for physicians)

Outcome:   Very favorable


The issue in this case was whether Florida's Emergency Services Statute (ESS) could be enforced by a non-government entity.

AMA interest

The AMA supports prompt and fair payment for physicians' services.

Case summary

The ESS provides that if emergency medical services are provided to an HMO subscriber, the HMO is to pay for those services at the market rate.  Adventist Health System, which owned a chain of hospitals in Florida, sued Blue Cross and Blue Shield of Florida (Florida Blue) under the ESS, claiming it had been underpaid for emergency services.  The trial court ruled in favor of Florida Blue, without considering whether Florida Blue had violated the ESS payment requirements.  It held that the ESS cannot be a basis for a lawsuit by a non-government entity, and that, even if it could, Adventist had not exhausted the administrative review process.  Adventist appealed.

The District Court of Appeal reversed the trial court, finding that the ESS implied a private right of action.  It further held that Adventist was not required to exhaust its administrative remedies.

Litigation Center involvement

The Litigation Center filed an amicus curiae brief to support Adventist's interpretation of the ESS -- in favor of an implied private right of action.

Court of Appeals in the Fifth District brief.

Burrows v. Schug, 528 U.S. 867 (1999)

Also under EMTALAPeer review

Outcome:  Very unfavorable


The issue in this case was whether physician peer review records should be discoverable in the federal courts.

AMA interest

The AMA believes that peer review data should be kept confidential.

Case summary

An eleven-month old child died while being transferred between hospitals.  Dr. Schug, an emergency room physician, had ordered the transfer.  The child’s parents sued Dr. Schug for common law malpractice and for violation of EMTALA.  Subsequently, his actions were reviewed by his hospital’s peer review committee.

Under California law, the peer review records are not discoverable.  However, the United States District Court held that, because part of the action was based on EMTALA, those records would be discoverable.  The Ninth Circuit, in an unpublished decision, affirmed the District Court order.  Dr. Schug petitioned to the United States Supreme Court for a writ of certiorari.  The Supreme Court denied the petition.

Litigation Center involvement

The Litigation Center, the California Medical Association, and various other organizations filed an amicus brief to the Supreme Court urging a grant of certiorari.

Cherukuri v. Shalala, 175 F.3d 446 (6th Cir. 1999)

Also under EMTALA

Outcome:     Very favorable


The issue in this case was whether a patient could be transferred out of a hospital emergency room, although bleeding and suffering a deteriorating medical condition, if the transfer was medically necessary, in light of the transferring hospital’s inability to provide the needed medical care.

AMA interest

The AMA believes that Dr. Cherukuri acted justifiably when he ordered the transfer, since his hospital lacked the facilities and personnel needed to provide the emergency care required for these patients.  Even though the patients were still bleeding when Dr. Cherukuri ordered the transfer, his decision was in their best medical interest.

Case summary

Dr. Cherukuri, the doctor in this case who had ordered the transfer, was accused of violating the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd(b) (“EMTALA”), which prohibits the transfer of emergency room patients unless they are in a “stable” condition at the time of the transfer.  The United States Department of Health and Human Services fined him $100,000, which was the largest fine ever assessed against a physician for an EMTALA violation.  Dr. Cherukuri appealed to the United States Court of Appeals for the Sixth Circuit.

Ultimately, the Sixth Circuit found that Dr. Cherukuri had performed exemplarily under extreme emergency circumstances. It not only reversed the fine, but it admonished the Department of Health and Human Services Appeals Board for not having reviewed the case more carefully.

AMA involvement

The AMA filed an amicus brief on Dr. Cherukuri’s behalf.  After filing the brief, the AMA learned that Dr. Cherukuri had sustained a disability and could not afford an attorney to represent him on the appeal.  The AMA attorney therefore represented Dr. Cherukuri without charge.

Washington State Medical Association v. Kreidler, 2013 Wash. App. LEXIS 1221 (Wash. Ct.App. 2013)

Also under Managed care payments, Payment issues for physicians

Outcome:    Very unfavorable


The issue in this case was whether the Washington State Insurance Commissioner should interpret a Washington statute to require that insurance companies pay for out-of-network emergency services according to billed charges, as opposed to in-network charges.

AMA interest

The AMA supports prompt and fair payment for emergency services.

Case summary

RCW 48.43.093 is part of the Washington State Insurance Code.  The relevant provisions are as follows:

“(a) A health carrier shall cover emergency services necessary to screen and stabilize a covered person if a prudent layperson acting reasonably would have believed that an emergency medical condition existed.

(c) Coverage of emergency services may be subject to applicable copayments, coinsurance, and deductibles, and a health carrier may impose reasonable differential cost-sharing arrangements for emergency services rendered by nonparticipating providers, if such differential between cost-sharing amounts applied to emergency services rendered by participating provider versus nonparticipating provider does not exceed fifty dollars.”

The Washington State Medical Association (WSMA) helped to craft this law when it was enacted in 1997.

When the statute was enacted and for many years thereafter the Washington Insurance Commissioner interpreted it to require health insurers to pay for out-of-network emergency services, except for those copayments and deductibles that would apply to in-network services, plus a maximum $50 differential.  However, the Insurance Commissioner subsequently reconsidered his interpretation and decided that health insurance companies need only pay for out-of-network emergency services at the rates paid to in-network services.  The patients would then be liable for any shortfall.  Those physicians who provided the emergency services would also suffer a shortfall, if the patients required the proceeds of their insurance policies to make the payments.

WSMA and the Washington Chapter of the American College of Emergency Physicians (Washington ACEP) sued the Washington Insurance Commissioner, Mike Kreidler, seeking a writ of mandamus and a declaratory judgment, which would compel the Insurance Commissioner to require health insurance companies to pay the entire out-of-network billed charge, except for copayments and deductible that would apply to in-network services and a maximum $50 differential.

The Superior Court entered summary judgment against the plaintiffs.  It held that it lacked jurisdiction, as “a health carrier … is a necessary party for adjudication of relief.”

WSMA and Washington ACEP appealed to the Washington State Court of Appeals, but the Court of Appeals affirmed the lower court ruling, holding that the case could not be properly adjudicated. A health insurance company which had underpaid benefits for emergency services (according to WSMA’s interpretation of RCW 48.43.093) was a necessary party for the declaratory judgment claim, and the case failed to meet the criteria needed for a mandamus action.

Litigation Center involvement

The Litigation Center contributed toward WSMA’s legal expenses.