Mr B went to see his defense attorney who said, “I don’t think you have anything to worry about — the patient is representing herself pro se! You know what they say — the person who represents himself has a fool for a client!”

And indeed, Mrs P’s first legal complaint failed to raise a claim and was dismissed. However, because she was pro se, the court provided her with an opportunity to file an amended complaint. The first amended complaint failed again because the plaintiff made a Fourteenth Amendment argument, and the court pointed out that the Fourteenth Amendment only applies to state action and not private conduct. But again, the court gave her leave to file another amended complaint. Finally, she filed a complaint under the Emergency Medical Treatment and Active Labor Act (EMTALA).


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Legal background

EMTALA, known as the “Patient Anti-Dumping Act”, was enacted to address concerns that hospitals were dumping patients who were unable to pay for care, either by refusing to provide emergency treatment to these patients or by transferring the patient to other hospitals before the patient’s condition is stabilized. Under the law, hospitals with EDs must provide for “an appropriate medical screening examination within the capability of the hospital’s ED” to determine if an emergency medical condition exists. Hospitals are required to conduct an examination that is reasonably calculated to identify the patient’s critical medical condition.

In this case, Mrs P sued both the hospital and Mr B under EMTALA. The Federal Court found that Mrs P had failed to state a viable claim under EMTALA against the hospital. The court found that Mrs P was triaged within a reasonable time and that her condition was determined to be non-urgent. The hospital had not violated EMTALA. (It is worth noting that even if Mrs P had burns in her mouth that were not treated or noticed, a hospital is not liable under EMTALA if it negligently fails to detect or misdiagnoses an emergency medical condition. In those cases, plaintiffs must pursue their remedies in state court.)

Next, the court looked at the EMTALA claim against Mr B and stated, “insofar as plaintiff attempts to bring a claim against nurse practitioner B for violation of the EMTALA, she may not do so. The EMTALA does not provide a private right of action against hospital employees.” The bottom line is that a hospital may be sued under EMTALA, but a person may not.

The court dismissed the claims against the hospital and Mr B.

Protecting yourself

Since lawsuits are often one person’s word against another’s, they can happen to anyone, even if nothing was actually done wrong. Some states have enacted methods to try to cut back on frivolous lawsuits, such as having malpractice cases reviewed by a panel of medical experts before a suit can be commenced. However, in many instances, a ridiculous lawsuit (such as the one presented here) can still waste the time and resources of a health care provider.

There was, unfortunately, little that Mr B could have done to protect himself in this case. He did what he was supposed to do. He assessed the patient, he took notes on her condition, and he noted the time that she had been seen. He also noted that she claimed to be suffering from burns, but an examination revealed only a mild sore throat.

Good, detailed notes are always important for protecting yourself. Unfortunately, even good notes did not prevent Mr B from having to go through the experience of being party to a lawsuit. 

Ms Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, NY.