Jasmine Marianne Lee
In August 2022, Mylissa Farmer, an 18-week-pregnant woman from Missouri, experienced preterm premature rupturing of membranes, a life-threatening event that rendered her fetus unviable. Yet when she went to the emergency room at Freeman Hospital West in Missouri, doctors advised her to seek care out-of-state because they could not perform an abortion for her. After also being denied care at the Kansas University Medical Center, Farmer had to drive five hours to Illinois to get the treatment she needed for her emergency condition. This ordeal caused Farmer’s husband to lose his job, and their insurance would not cover the care Farmer received, leaving the couple financially struggling. Farmer reported her story to the media to warn audiences that what happened to her could also “happen to your wife, your daughter, your sister” (Wicentowski).
Nine months later, the Centers for Medicare and Medicaid Services (CMS) determined that the Missouri and Kansas hospitals had violated the Emergency Medical Treatment and Active Labor Act (EMTALA) (“NWLC”). EMTALA requires emergency rooms to provide appropriate screening exams and stabilizing treatment to all people that present with an emergency condition. Though routine healthcare is not a right in the United States, EMTALA passed in 1986 with support from the public as they developed a sense of rights consciousness, that everyone should receive rapid medical attention when they are seriously sick or injured. Subsequent media coverage and court decisions led to expanded rights to emergency care for Americans. However, EMTALA ironically guarantees a right to emergency care in a system that treats healthcare as a privilege. The resulting tension between EMTALA, the economic principle of payment-based medicine, and political constraints on medicine means that some emergency patients still experience denial of care or receive unaffordable care.
In 1946, the Hill-Burton Act provided millions in public funds for hospitals to construct emergency rooms (ERs) that they advertised as accessible to all, 24-7. Demand for these new facilities rose sharply between 1940 and 1955 as the rates of automobile and industrial accidents increased. This trend coincided with a growing consumerist approach to healthcare in which middle-class patients visited the doctor’s office more often with expectations of high-quality service, the latest medical technology, and increased price transparency (Tomes 165-182). Yet ERs reserved the right to deny care to patients because of non-medical factors such as race and inability to pay (Hoffman 78-80). This practice enabled the widespread phenomenon of patient dumping, in which private hospitals transferred patients to public hospitals to avoid treating them, even at the expense of the patient’s health.
Many physicians and hospitals initially did not consider patient dumping a problem. In 1954, a five-month-old baby named Laura Lingo died of burn injuries from knocking over a boiling pot of water, after being transferred from Woodlawn Hospital in Chicago due to her family’s inability to pay. At the coroner’s inquest, Laura’s mother cried, “She was my only baby… I’ll never forget this.” Yet doctors testified that Laura’s transfer was appropriate. The coroner’s jury still found Woodlawn grossly negligent, but because Laura had been treated by an unregistered physician, not because her family had to spend an extra hour transporting Laura to a public hospital (“Medicine”). Though some Chicago doctors published a letter in the press speaking out against financially motivated transfers like Laura’s, this opinion was unpopular among physicians. Quentin Young, an attending physician at Woodlawn, even lost his privilege to practice at Woodlawn after signing the letter (“Quentin Young”).
Racial segregation in the 1940s and 50s also allowed hospitals to use race to deny patients emergency care. Many hospitals segregated their beds and transferred black patients to other hospitals even if beds were available in white wards. Alfred Maund from the Southern Conference Educational Fund created a pamphlet, called The Untouchables, to tell twelve stories of injured black patients who died due to delayed care. In one shocking account, a black man who was critically injured after a car accident died on the floor of a Kentucky hospital without treatment because the hospital had “no facilities for colored people.” Another story featured a woman who died after being denied admission to an Alabama hospital because she could not pay $100 upfront – even though her husband’s employer promised to pay the remainder the next day. Many others died preventable deaths after spending hours waiting for treatment or traveling between hospitals.
Though hospitals claimed that patient dumping was their right, some individuals and organizations denounced these practices. In Laura Lingo’s case, Chicago’s health commissioner Herman Bundesen condemned the role of Woodlawn’s transfer in her death, which eventually led to the hospital losing its tax-exempt status – a particularly early example of hospitals being sanctioned for a failure to provide care (Hoffman 87). Several incidents described in The Untouchables also sparked citizen movements protesting racial discrimination; initiatives in Kentucky and Delaware convinced local hospitals and state legislature to desegregate facilities and prohibit race-based denial of care (Maund). The success of these movements displays the change-making power of the public’s growing rights consciousness that everyone should be entitled to rapid care in an emergency.
While these communities took action to establish their rights as early as the 1950s, the concept of the hospital’s duty to emergency patients gained traction amid the rights movements of the 1970s. The concepts of civil and human rights exploded in popularity as global organizations and politicians emphasized the need to resolve injustice against individuals and marginalized groups (Moyn 4, 104). Court decisions on emergency care began to adapt these ideas to uphold the patient’s right to emergency care. In 1969, a Georgia appellate court held in Williams v. Hospital Authority of Hall County that a public hospital’s emergency room does not have the right to deny necessary care to a visibly injured patient because it is “supported by public tax funds which does maintain emergency facilities for the benefit of the general public” (“Williams”). The Supreme Court of Arizona then extended this rationale to private hospitals in the 1984 case Thompson v. Sun City Community Hospital, in which a patient became permanently disabled after their private hospital delayed emergency surgery to transfer them to a public hospital. The court found that the hospital committed a “breach of duty” because it failed to “provide immediate and necessary emergency care to all persons regardless of ability to pay” (“Thompson”). Both decisions invoked the value of duty – that a hospital should be responsible for the welfare of the public. If a hospital receives taxpayer money, especially from federally funded programs like Hill-Burton, then it should serve the community that helped fund it. This shift in values, driven by public sentiment and mounting numbers of sensational patient dumping horror stories, convinced Congress and President Ronald Reagan to pass EMTALA in 1986. Using hospitals’ Medicare funding as an enforcement mechanism, EMTALA formally established the duty of emergency rooms to care for patients.
Even after the bill’s passage, publicized injuries expanded the scope of EMTALA further. One notable amendment is the 250-yard rule, in which EMTALA obligations apply not just inside the emergency building, but also to any grounds within 250 yards of the hospital. The CMS made this change after the death of 15-year-old Christopher Sercye, who was shot behind a hospital in 1998. He collapsed 30 feet from the hospital doors, but staff could not treat him outside the building due to hospital policy. Media coverage of this case led to national outrage, and the boy’s family eventually received 12.5 million dollars in a settlement (“Family Agrees”). President Bill Clinton even published a statement threatening to end Medicare funding to the hospital if it did not make immediate policy changes, declaring that “no one should be left untreated just footsteps from a hospital entrance” (Peters). This statement once again used the concept of a hospital’s public duty to push policy changes.
But EMTALA’s mandate to stabilize all patients with emergency medical conditions increased ER burden significantly. Between 1990 and 2009, the number of ER visits per 1,000 population increased by 18% as patients flocked to ERs as sites of guaranteed care. Longer wait times caused by increased usage led to dangerous treatment delays and increased mortality rates (Barish). The Affordable Care Act aimed to reduce ER utilization by increasing access to primary care through expanded health insurance; however, Medicaid-reimbursed ER visits increased after Medicaid expansions in 2014 and the overall volume of ER visits did not decrease (“Trends”).
Because the cost and patient billing processes of American healthcare remain unchanged, EMTALA also does not make emergency treatment free. It passed as an unfunded mandate in the mid-1980s, meaning that the federal government does not pay for the healthcare required under this law (Sanford 416-417). By this time, the idea of the patient as consumer had become one of the expectations of the market-based American healthcare system (Tomes 7). Yet this mindset makes healthcare a product to consume – and all economic products come at a cost. Patients are expected to pay for their product even in an emergency, and unaffordable costs put many Americans into medical debt. The 2019 Survey of Income and Program Participation found that 17% of American households owed medical institutions money in 2019. 23 million US adults owe at least $250, and 16 million of those people owe over $1,000 (Rae). Often hospitals will attempt to recoup these losses by taking legal action against patients who owe debt. This places a significant financial burden on the patients, and can jeopardize their credit score, home, and employment prospects. Some hospital systems even bill and aggressively pursue patients who should qualify for charity care (Levey). These practices stir patient distrust in the medical system and deter them from seeking necessary medical care – a Gallup poll found that 27% of respondents delayed care for a serious medical condition due to cost in 2022 (Brenan). Ultimately, delayed care becomes injurious to patients as their conditions worsen without timely medical treatment.
Despite increasing profits, however, hospitals do not increase the amount of uncompensated care they offer and continue to seek debt repayments. A June 2023 analysis found that although the average profit of nonprofit hospitals increased between 2012 and 2019, the amount of charity care they provided did not increase, even though these hospitals receive tax breaks to provide community services (Jenkins). Some states like Maryland even provide charity care rate support to finance this care – yet a 2019 report discovered that the amount of money Maryland hospitals received for uncompensated care over five years exceeded the actual amount spent by 119 million dollars, about the same amount they were suing for at that time (“Preying on Patients”). These statistics demonstrate that hospitals are not fulfilling the duty that the public expects of them – instead of suing patients for money, they could use the money they save from tax breaks and government benefits to pay for patient care.
Some existing policies address these predatory debt collection practices. The End Medical Debt Maryland coalition successfully passed the Medical Debt Protection Act of 2021 into Maryland state law, which prevents hospitals from garnishing wages or placing liens on homes to collect debt (“End Medical Debt Maryland”). The federal No Surprises Act also prevents out-of-network cost sharing for emergency treatment so that patients do not receive unexpectedly high medical bills (“No Surprises Act”). While both bills protect patients from some exploitative billing practices, they do not eliminate the threat of medical debt for patients who need emergency treatment. Insurance coverage improvements and reductions of the high cost of emergency care are ultimately necessary to resolve this problem.
But cost is not the only barrier to emergency care – conflicting state policies can also interfere with EMTALA obligations. Recently, the overturning of Roe v. Wade makes it more difficult for women who suffer sudden pregnancy complications to get care. Mylissa Farmer could not get the abortion she needed in Missouri or Kansas because doctors, forced to compare their medical judgment against vague non-clinical state laws, judged her condition as too stable to make an abortion legal. Yet EMTALA, being a federal statute, should override any contradictory state laws. To reinforce this point, the Department of Health and Human Services (HHS) released some guidance in July 2022 reminding healthcare staff that they must provide abortions if it would stabilize a patient’s condition (Tritz). But one month later, the US District Court for the Northern District of Texas ruled that the HHS cannot enforce EMTALA for abortions in Texas (“Paxton”). These inconsistencies inflict moral injury on healthcare providers by forcing them to decide whether they should risk jail time or license revocation to provide the best treatment for their patients. When Farmer sought care in Missouri, her clinician wrote in her chart that “contrary to the most appropriate management based [on] my medical opinion… we are unable to offer induction of labor at this time” (Surana).
Despite challenges to its enforcement, EMTALA establishes a legal right to emergency care in the US. The history of EMTALA can provide guidance for future lawmaking efforts to expand healthcare access; it passed because narrative accounts and media publicization appealed to rights consciousness and popular views of the hospital as a public service. The resulting values shift prioritized duty and fairness, the idea that hospitals should ensure every patient gets adequate and timely care for their illness. Yet while EMTALA is a necessary step forward in recognizing patients’ rights, its practical effect is limited by a healthcare system that does not place the well-being of individuals as the top priority. Some characteristics, like race, are no longer explicit factors for denial of care. But post-EMTALA activism highlights several injuries that institutional policies continue to inflict – hospitals harm their communities through excessive debt collection, and abortion bans threaten both the health of emergency patients and the moral consistency of healthcare workers. Issue-specific reforms, such as the ending of predatory debt practices and healthcare access protections for pregnant women, are necessary to ensure that hospitals can fully serve their legal duty to emergency patients. But a larger reorganization of the American health care system, reflecting a shift in values from profits to rights, must occur if hospitals are to fulfill their expected social duty of providing care to all who need it.
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