The federal Emergency Medical Treatment and Labor Act (EMTALA) requires any hospital that participates in Medicare and provides emergency services to provide (1) an appropriate medical screening examination to anyone who comes to its emergency department asking for treatment, and (2) necessary stabilizing treatment or transfer to another medical facility if the examination reveals an emergency medical condition. Per the EMTALA regulations, this requirement applies not only to emergency departments, but also to any department where at least one-third of outpatient visits involve emergency conditions treated on an urgent basis without an appointment, such as labor and delivery or psychiatric units. EMTALA also applies to stand-alone urgent care centers operated by hospitals. In other words, EMTALA creates a standard of care for hospitals and urgent care centers – an institutional duty to patients – separate and distinct from the standards of care applicable to the healthcare professionals who work there. (For a detailed review and explanation of the EMTALA regulations, see https://www.cga.ct.gov/2003/olrdata/ph/rpt/2003-r-0621.htm.)
There is no reason why the EMTALA principle – that a medical institution has a standard of care independent from the medical professionals it employs – should not apply in other contexts. In Windhurst v. Arizona Department of Corrections et al. (10/11/2023), the Arizona Supreme Court applied it to a contract provider of prison medical services, based on the testimony of the plaintiff’s expert. I will be focusing on that testimony, but first a bit of background is necessary.
The court summarized the facts as follows:
In December 2015, David Windhurst (“David”) was incarcerated…. [His] chronic medical issues include[ed] diabetes, hypertension, obesity, kidney disease, and injuries to his back and buttocks…. David was placed in the prison’s infirmary, where Arizona Department of Corrections provided his health care through its contractor, Corizon Healthcare Inc….
In February 2016, David went into septic shock and was transferred to a hospital where he remained for over a month [and was then transferred] to a state prison…where he was housed in the infirmary under Corizon’s care. In November 2016, David was admitted again to the hospital in septic shock, and on December 25, he died due to infectious complications of diabetes.
David’s widow brought suit for wrongful death. The complaint alleged institutional negligence by Corizon, as well as vicarious liability based on the negligence of its medical personnel. Corizon moved for summary judgment. The plaintiff’s opposing papers included the deposition (to be quoted at length infra) of Dr. Zachary Rosner, the chief of medical services for the New York City jail system. The trial court granted Corizon’s motion, the plaintiff appealed, and the supreme court reversed.
Section 12-2604, the Arizona statute governing the qualification of medical malpractice experts, is typical of such statutes in other states. The expert must be a “licensed health professional.” If the defendant is a specialist, the expert must practice the same specialty; if the defendant is a general practitioner, the expert must be in active clinical practice as a GP or meet certain requirements as a teacher. The court found, however, that the statute does not apply here:
Because the defendant in this case, Corizon, is not engaged in a “health profession” and is neither a “specialist” nor “general practitioner,” § 12-2604 does not apply…. [A]n institution cannot be a licensed health professional because an institution cannot be a natural person…. Similarly…an institution, by definition, cannot be a “specialist” or “general practitioner.” Accordingly, § 12-2604(A) is inapplicable to claims based on a theory of institutional liability…. [Therefore], an expert on this issue need only satisfy [Ariz. R. Evid.] 702, which requires that the witness have “specialized knowledge [that] will help the trier of fact to understand the evidence or to determine a fact in issue.”
I turn now to the court’s review of the deposition of the plaintiff’s expert, who as noted above was the chief of medical services for the New York City jail system. His testimony is a brilliant demonstration of how to establish the standard of care for a medical institution, breach thereof, and causation.
As previously indicated, Windhurst alleged institutional negligence by Corizon and vicarious liability based on the negligence of its personnel. In support of this claim, Dr. Rosner stated in his report that it was appropriate to apply the standards of care set by the Centers for Medicine and Medicaid Services (“CMS”) for long-term care facilities to a prison infirmary. Dr. Rosner cited the CMS standard of care for the availability of emergency services which states that a “facility must provide or arrange for the provision of physician services 24 hours a day, in case of an emergency.” 42 C.F.R. § 483.30(d). Rosner stated that this standard was “clearly not met” because David became “gravely ill” and “nurses concerned for his well-being were unable to promptly contact a higher level of Clinician for management decisions” and “[w]hen the physician was finally contacted there was not prompt in person evaluation that resulted.” Dr. Rosner further stated:
"When a system is structured in such a way that an infirmary setting does not have a physician working in an infirmary setting around the clock it must have accessible physician oversight and be prepared to rapidly escalate care for unstable patients. When the on-call physician is both unable to come in to evaluate a decompensating patient while also not willing to remotely advise transfer to an emergency room where physician services are available around the clock, that system cannot be said to have provided or “arrange[d]” for the provision of physician services 24 hours a day."
Dr. Rosner provided additional expert causation testimony regarding this claim when he expressed that “the prison was unable to come close to approaching the standard of care that Mr. Windhurst required” and that Corizon’s “inability to provide this level of care should have been easily recognizable . . . and failure to acknowledge and act on this led to Mr. Windhurst’s decompensation, development of severe complications of an otherwise treatable infection, and ultimately his premature death.” Dr. Rosner’s statements satisfied the requirement for expert causation testimony because he testified that Corizon and its employees breached the emergency-services-availability standard of care and caused David’s death.
Dr. Rosner also discussed another institutional standard of care he believed Corizon breached: proper maintenance of medical records. In his report, Dr. Rosner stated that a “medical record is the commonly accepted location for communicating clinical information from a variety of sources.” He asserted that the standard of maintaining medical records is to “directly populat[e] the medical record in a way which could be assessed by multiple different care givers.” He added that “[s]uch direct population of the medical record with lab results is standard for current electronic health records and critical since easy access to review a patient’s past lab results is a critical component of having a complete picture of the patient being provided care.”
According to Dr. Rosner, however, Corizon breached this standard by improperly maintaining medical records. In his report, Dr. Rosner stated that “lab results were routinely reviewed on paper or via email” by Corizon’s clinicians. But he also noted that a Corizon provider “communicat[ed] only via word-of-mouth sign-out with nurses and not reviewing the chart for documentation of patient progress in some instances, and in others not receiving lab results in the electronic record,” and often, results or “concerning findings” would not reach higher level clinicians. In discussing this breach, Dr. Rosner asserted that “[t]his significant structural flaw was particularly contributory in this case” because it delayed obtaining the results of a lab report “which . . . under normal standards would have warranted a change in [care] management.”
Dr. Rosner also stated that Corizon’s clinicians “appear to have been working in an environment and under obligations that systematically limited their individual ability to provide a level of care that Mr. Windhurst required.” This included “poor electronic and manual tracking systems critical to providing adequate care to a patient with Mr. Windhurst’s medical needs.” Thus, Dr. Rosner concluded that the “actions and inactions” by Corizon providers represented a breach of the standard of care that “more probably than not caused or contributed to David Windhurst’s eventual death.”
[The plaintiff] identified the standard of care regarding the maintenance of medical records, discussed how the standard was breached, and sufficiently specified how the breach caused David’s death. Accordingly, [the plaintiff’s] competent expert testimony would prevent the jury from having to infer causation on the institutional negligence claim.
It seems to me that, in appropriate circumstances, the institutional-standard-of-care principle could be applied to hospitals outside the EMTALA context, and also to contract providers of medical services to hospitals, such as independent emergency medicine and radiology practices. Dr. Rosner has shown the way.
