12 February 2007

In which I shall make an unpopular argument

Mark Twain famously said that "Sacred cows make the best hamburgers." I reflect today upon one of the sacred cows of Emergency Medicine, EMTALA, and I wonder to myself:

Is EMTALA unconstitutional?

A little background for the non ER-docs in the audience. (hi mom!) In the Bad Old Days [tm], ERs did not always serve as the Ultimate Social Safety Net that they now are. When patients presented, a "wallet biopsy" was performed at the front door, and if the patient was indigent, they were turned away, or redirected to the local charity hospital, or sometimes they were evaluated and then dumped via ambulance on the charity hospital. Congress responded with the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985 (42 U.S.C. §1395dd), commonly referred to as "EMTALA" (the "The Emergency Medical Treatment and Active Labor Act") or the "anti-dumping law."

This law required that all hospitals which participate in the Medicare program (effectively, all hospitals) provide a "medical screening examination" to all individuals who present to the ER to determine whether an emergency condition is present, and if such a condition is present, provide appropriate stabilization treatment within the capability of that facility. If a patient is to be transferred, the patient must consent to the transfer, the receiving facility must agree to accept the patient, and the risk and benefits of the transfer must be documented.

Given the demonstrated bad behaviors prior to EMTALA, most view it as an appropriate government response, and those involved in Emergency Medicine nationwide generally have incorporated its principles into their mission. Most ER docs that I personally know have a reflexive tendency to take responsibility for any patient that walks through the door, and given the national uninsured crisis, most ER docs think of it as a moral imperative to care for the needy and indigent.

But EMTALA contains no provisions for compensation of the providers who care for the indigent. It is, rather, a classic unfunded mandate. According to an AMA study, the typical ED physician will provide about $138,000 in uncompensated care annually. Hospitals accrue much larger costs, but do receive some small offsetting funds through Medicare.

It is true that EMTALA did accomplish its limited aims; the Emergency Departments of the nation are now effectively serving as a basic safety net for the most vulnerable members of society. Unfortunately, this has also created a perception that the nation's health care crisis is somehow resolved. I have, numerous times, encountered the argument that the uninsured do in fact, have access to health care through the nation's Emergency Departments. This reflects a limited understanding of the highly limited spectrum of services provided in the typical ED. This common misconception has diminished the sense of urgency required in reforming the funding of health care in America today.

From my limited experience, it seems that just about every health care provider I know agrees that while EMTALA does reflect a sense of moral rectitude, it is bad public policy. It shifts the failings of the healthcare "free market" onto the shoulders of private physicians by legislative fiat, rather than providing sustainable solutions. Worse, EMTALA provides a incomplete, "band-aid" solution to a critical deficiency of the national health-care policy -- the inability to provide full access to care for all citizens.

It is abundantly clear that comprehensive reforms are required, reforms which guarantee universal access to health care. Even republicans such as Mitt Romney and The Arnold have floated (tepid) proposals to accomplish this goal. However, I am suspicious that such an ambitious undertaking is be doomed to failure, as in 1993, by the many competing interests and advocacy groups, not least of which are the entrenched insurance companies. It may be that something dramatic may need to change in order to re-establish a sense of urgency for and momentum towards systemic health care reform.

One appropriately dramatic action would be for EMTALA to be overturned. Obviously, it is politically untouchable from a legislative point of view; it may, however, be vulnerable from a judicial approach.

The Fifth Amendment to the US Constitution states, in part, "... nor shall private property be taken for public use, without just compensation." The Fourteenth Amendment similarly reads, "nor shall any State deprive any person of life, liberty, or property, without due process of law." The argument to be made here is that EMTALA requires private citizens, largely physicians, to provide the fruits of their labor without compensation or due process, and as such represents an unconstitutional "taking" of private property.

The biggest question to which I am not truly competent to provide an answer is this:

Legally, is a person's labor considered property?

Absent some review in case law which I am unable to find, I cannot find a definitive answer on line. Most definitions of property do make a distinction between real property and intangible property, definitions which do not explicitly include, but which would seem to be expansible to labor. There is a historic precedent in the philosophy of law that all property is derived from labor. I do not know to what degree, f any, this has become incorporated into common, case or statutory law. If anybody reading this can provide me with a definitive answer, I would be very interested in reading it.

Assuming the preceding, the right to property is generally held to be a fundamental right, which the courts provide with a high degree of protection, or "strict scrutiny." This means that any restrictions or impositions upon that right must be: justified by a compelling state interest, narrowly tailored, and accomplished by the least restrictive means.

I think it is self-evident that the need to provide emergency health care to all citizens is a compelling need, and I can concede that the construction of EMTALA is indeed pretty narrow. Whether the least restrictive means are used is, however, open to question. EMTALA, were it linked to a funding method, some sort of standard fee schedule, would achieve the same goal with less restriction on the provider's autonomy. Thus, by my reading, EMTALA might be impermissible under the Fifth Amendment.

What would be the consequences of such a case being brought? I think the "house of medicine:" ACEP, the AMA, etc, would probably oppose any attempt to overturn EMTALA, simply for fear of the political backlash. They would not want to be perceived as wanting to put the poor and vulnerable at risk. Given the almost-certain filing of amicus briefs in opposition to a petition to overturn EMTALA, the odds of such an action succeeding seem low in the face of what may be a tenuous legal foundation for the case. A failed attempt to overturn EMTALA would indeed portray the plaintiffs -- and all physicians, by extension -- in a very negative light with no tangible benefit to show for it.

Conversely, if such a claim were successful, what would be the consequence? Again, I predict a highly negative public reaction, mostly directed against physicians. The perception would be that doctors don't want to take care of the uninsured (which is to some degree true); we as a profession would be viewed as acting to put the poor and vulnerable in jeopardy. The result, however, might ultimately be positive. The exposure of the "medical safety net" as being untenable would almost certainly spur lawmakers to action. Providing an impetus for legislative action to cover the uninsured would, indeed, be the only reason to make such a claim.

I think the dangers here are too great to justify trying these waters. Exactly what sort of legislative response Congress would come up with to replace EMTALA is uncertain, and punitive measures directed against physicians might well be part of the response. The AMA and other physician lobbying organizations would not face a sympathetic audience in trying to craft law or guide the legislative process, as they would lose a great deal of moral authority due to EMTALA's demise.

Furthermore, in the current political climate, where the health care crisis is getting a fair amount of national attention and just about every prominent democrat has a pet plan for universal coverage, there is some actual basis for hope that a solution may -- just may -- be on the horizon. In this environment, provocative moves like a challenge to EMTALA would probably work greatly against the interests of physicians, and are probably unnecessary.

Ultimately, I do not know whether the legal basis for this thought-experiment is sound. I suppose we will never know unless someone files a petition and makes the case. It would be interesting if some "rogue doc" out there did so. Coming from a private individual would help a bit to shield the house of medicine from the negative publicity, especially if those organizations were on record as opposing the action. Even a credible threat against EMTALA might be helpful in moving the debate forward.

Mmmm. . . great hamburger.


  1. If you are going to argue (and I realize this is was you musing, not a strict argument) that your professionlal services are property, then of course the government could compel you to action with some "fair market value" of your skills. Being a libertarian, I think that's immoral, but the precedent is pretty clear.

    So is your time at skill your property? I think it should be.

    By the way, whenever I move my arm above and behind my head, it really hurts, what do you think I should do?

  2. Hmm. Your points are at odds, and I'm on the other side of the argument, such as it is.

    If I am, using your number, giving away $135K/year, that's worth fighting for. How would I do it? I submit that we need a Tax code change to allow us to write off the value of our uncompensated care. Is that the same as having that money in my pocket? No, but it's better than nothing, and would be an easier / more PC argument for our professional societies to make.

    Wow, why didn't I think of that before?


  3. Excellent, excellent post. Good food for thought.

  4. Whether it is a solid legal argument, which I think it probably is not, you make it absolutely clear that by pretending we don't have socialized medicine we are just hoisting the problem in an uncontrolled way on various random people. We need socialized medicine so that people get the preventative care they need. We need socialized medicine so that society fairly distributes the burden.

    If we are not willing to let people die of pnuemonia for being poor, than we need socialized medicine.

    It would be like fighting a war without a draft but where you send the same guys in country over, and over and over again and never let them leave when their contract was up. Obviously, that would be immoral.

  5. "If you are going to argue (and I realize this is was you musing, not a strict argument) that your professionlal services are property, then of course the government could compel you to action with some "fair market value" of your skills."

    Actually, the 13th Amendment, forbidding slavery, means that the government cannot compel an individual to provide services. I haven't read EMTALA, but I think they get around this by simply saying they won't give you Medicare reimbursement, rather than "compelling" you to provide services. Similarly, it is not a taking for the government to decline to allow you to participate in the Medicare program. You are totally free to refuse to provide emergency services - as long as you take your hand out of the public till. It's a nice try, but it doesn't work as a legal argument.

    GruntDoc's suggestion of a tax cut would work better, and he's right that it's more politically feasible.

  6. Matt -- EMTALA already compels us. If EMTALA contained provisions to pay us for that which we are already compelled to do, it would be a huge improvement.

    GruntDoc -- I agree that those free services are worth fighting for. I think at this time fighting for it through some form of universal coverage is more likely to succeed. (Whether that universal coverage is single-payor or employer-funded or something else is another subject.) As for the tax idea, I think there are some write-offs available for bad debt on the business side, but unfortunately that's of limited benefit to most ED docs (maybe independent contractors have a different experience).

    You are right, though: I think based on my limited knowledge that EMTALA is unconstitutional, but I am not (yet) ready to call for it to be overturned. So I am kind of wimping out, for now anyway.

    Elizabeth -- I did look at 13th Amendment arguments, and they mostly fail because the doctors are free to go work somewhere else if they choose. So I agree that it's not exactly slavery.

  7. I don't think anyone argues that indigent people in need of emergency medical care shouldn't get it. But why should every hospital have to provide that care? The language of the statute requires stabilization prior to transfer, but in reality it is effectively impossible to transfer a "self-pay" patient from a private hospital to a county hospital in the vast majority of circumstances. So they end up getting much more than stabilization, not to mention a huge bill that they can never pay.

    I would suggest increased funding of the large county hospitals and somehow "encouraging" them (with carrot or stick) to accept these unassigned patients.

  8. Elizabeth, we have a right to property as well, but the government is, famously, allowed to take it away in order to put up shopping malls as long as they pay us "fair market value." That was the point I was trying to make -- that it's a criminal position for the government to take, but one it takes regularly anyway.

    And Liam, I know EMTALA compels you, I was reacting to that by pointing out the precedent that is set about fair market value.

    EMTALA is no more unconstitutional than the government taking away physical property because the resulting development is more profitable (and taxable), but it happens.

  9. Unfortunately, I think the legal basis likely will fail. I will give you an example from this morning. . .

    We have snow. It happens from time to time. My municipal law states that I MUST, under threat of fine, shovel my driveway and sidewalks within 24 hours of snowfall. They do not provide any incentive or compensation, just the big stick of monetary fines (which I'm assuming are rarely enforced).

    As long as they can play the "public safety" or "public interest" cards, I don't see due process arguments going very far, even though Drs. labor is worth more than the average Joe.

    Just my .02

  10. "Elizabeth, we have a right to property as well, but the government is, famously, allowed to take it away in order to put up shopping malls as long as they pay us "fair market value.""

    Yep. Property has less protection from government takings than does labor. The government can't compel you to "sell" your labor (to anyone), even though it can compel you to "sell" your property to the government.

    Since labor receives greater protection under the Constitution than property, a takings argument is not likely to be the best one against EMTALA. And in fact, it won't work, for the reasons I described above.

    I agree that there are problems with EMTALA. But I don't see any viable argument that it's unconstitutional. Any solutions are going to have to be legislative.

  11. Thank you for one of the most intelligent discussions of this problem/issue that I've read in a long time. Very nicely stated. Just for argument's sake, my pea-brain would ask a question about the AMA study--namely, if one adopts the view that ER docs provide "uncompensated care", does that concept include the other employees providing patient care in the ER as well?

  12. With regards to EMTALA being unconstitutional:

    There is no taking under the 5th Amendment, nor is their an issue of due process under the 14th Amendment. Because participation in the Medicare program is optional (albeit, it is the rare physician or hospital that can survive without participation). Technically, since Medicare is a federal program and the federal government is the chief actor, the 14th Amendment is inapplicable, because the 14th Amendment extends to the states the taking and due process protections of the 5th Amendment (which are protections against the federal government alone). No property is involved, because the patient is seeking services that can potentially be reimbursed from many sources -- including a federal source, Medicare. Any property right arises only after services are rendered. EMTALA is a pre-condition for participation and payment by Medicare. Similarly, it is no taking because the patient can still be billed for services.

    The issue is the "Taxing and Spending" Clause (U.S. Constitution Article I Sec. 8). The U.S. Congress, as part of its legislative powers, can condition any spending with conditions that must be met to receive payment. Here Medicare conditions participation and payment with EMTALA compliance. It is no less Congress's right, under the Taxing and Spending Clause, to condition Medicare participation by the EMTALA pre-condition to all patients, regardless of ultimate payer status.

    EMTALA is "constitutional" because it is well within the legislative powers granted Congress under the Constitution.

  13. La Boheme:

    Yes, I suppose that the other employees in an ER are doing so without compensation, but in a much less direct fashion. The nurses' salaries, for example, are rolled into the overall facility fee, unlike the doctors who directly bill the patient.


    If funding is to be increased, I would rather it be the patients who be funded, so they can be profitably cared for in their home communities and hospitals of choice rather than pawned off on the shabby county hospitals (no offense to the fine folks who staff them).


    Damn you for being right.

  14. I would prefer the states and counties to be responsible for their own indigent, and not create more federal bureaucracy. Federal funds could still be given to states to support such initiatives and encourage compliance.

    The care provided in our county hospitals in Texas is superb, and in fact if I were in a major accident that is where I would prefer to be taken. The only drawbacks to them are 1) they are teaching hospitals 2) they take care of poor folks who are more likely to be unkempt and intoxicated and 3) there are usually long(er) waiting times.

    Their mission is already to care for the poor and uninsured, and they do so very well. They could do even better with increased funding. There are already several local satellite clinics in our county system so folks don't have to travel all the way into the big city. More funding could increase the numbers of such facilities and improve the services they provide.

    I don't believe that our system is that broken, but could use some tweaks. Why should someone on welfare get the same level of medical services as someone paying cash or fully insured? Why should they be entitled to receive care at the hospital of their choice? They don't drive the same cars, eat at the same restaurants, or wear the same clothes, and their children don't go to the same schools. Why should healthcare be any different?

    Healthcare is not a right.

  15. "Why should someone on welfare get the same level of medical services as someone paying cash or fully insured? Why should they be entitled to receive care at the hospital of their choice? They don't drive the same cars, eat at the same restaurants, or wear the same clothes, and their children don't go to the same schools. Why should healthcare be any different?

    Healthcare is not a right."

    Wow I am speechless at this. I hope it is tongue in cheek. If not, so glad you are not my doc.

  16. Your argument is not unpopular, it is merely incorrect. To expand on what symtym said:

    1) Your hospital, and you, are not required to particpiate in Medicare. Not dumping patients is simply a requirement for remaining in Medicare - a requirement in much the same way as filling out paperwork. Both violations can be met with fines or other penalties. Your hospital can choose not to participate in Medicare, or be thrown out for violations.

    2) You are not required to work for a hospital in which your work is not fully compensated - and you may have legal claims against your hospital. You may choose to work at another hospital, or in another department. You may choose to set up a private practice, or do research instead. You may choose to go to law school, and learn what the law actually is, or run for Congress, and try to change the law.

  17. docwhisperer3/10/2007 6:43 AM

    Scalpel said, "Healthcare is not a right", and he is absolutely correct in that it is not considered a right in the US as opposed to other developed countries such as France and Japan and Canada where it IS considered a right and they have universal health care to provide accordingly.

    The fracture in the U.S. system occurs because while we treat healthcare as a privilege/ benefit of employment we also want to provide for the sick, disabled, elderly, and uninsured who are unable to work (and in fact need healthcare the most), which is what any society which claims to be humane and compassionate ought to do. The U.S. has to wake up and realize that you can't have it both ways, either commit to universal health care or resign yourself to the reality that huge sections of the population will remain uncared for and uncompensated.
    The county hospitals are not the solution, because ER care is only a band-aid for the bigger problem, which like a bad rash will keep coming back until the root problem is fixed.
    P.S. Glad to see you back among us, symtym.

  18. 1)Medicare/Medicaid is unconstitutional, period. Read Article 1, Section 8 of the constitution. If you want to use the General Welfare argument I suggest you read Madison's veto of the road & waterway creation act which thouroughly explains, by one of the constitution's authors, the inappropriateness of the federal government's actions in these areas.
    2)Rights can be negative or positive. There is a reason that only negative rights exist in the constitution. By definition, any affirmative right requires the infringement of someone else's rights. So "Health Care is a right", being an affirmative "right", automatically burdens the provider's of health care with the onus of providing for that "right" on demand of the recipient. That is also known as stealing, oppression, a violation of a physician's constitutional property rights, etc. By the way, google Madison and property and you will see that the labor that enables the acquisition of property is in fact property itself. The provider voluntarily giving care is called charity. See the difference?
    3)Look North. Socialized medicine severely rations health care and is falling apart all over the world. "So is health care in the US", you say. Well, health care in the US is NOT the free market. So blaming the problems of US system on the free market is irrational. Looking to socialized medicine is even more irrational.
    4)EMTALA requires physicians to treat people regardless of whether those physicians are Medicare providers. So opting out of Medicare does NOT remove that requirement.
    5)Eminent domain can not possibly be construed to apply to the transfer of the property or labor of one individual to another.

    Comrades, please look at history. Government compulsion has never worked. Socialism has never worked in any society at any time for any thing.


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