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:
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:
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.