CASE | DECISION | JUDGE | FOOTNOTES

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

The Inspector General,

Petitioner,

DATE: Ocotober 31, 2001
                                          
             - v -

 

Rush Foundation Hospital

 

Docket No.C-00-301
Decision No. CR832
DECISION
...TO TOP

 

DECISION


I. Background

The case before me arose pursuant to the notice letter issued on December 28, 1999, by the Inspector General (I.G.) of the Department of Health and Human Services. The notice letter informed Rush Foundation Hospital (Respondent or Rush) of the I.G.'s determination that Respondent had violated section 1867 of the Social Security Act (Act) on July 14, 1996, with respect to the care of a pregnant patient who was brought by ambulance to Rush's emergency room. The I.G. notified Respondent that she was proposing to impose a civil money penalty (CMP) in the amount of $50,000 for the violation. Respondent filed a timely challenge to the I.G.'s determination and proposed action.

I held an in-person hearing for three days in Jackson and Meridian, Mississippi. The parties have also submitted post-hearing briefs.(1)

In the sections that follow, I explain why I conclude that Respondent did not violate section 1867 of the Act in its treatment of the patient, S.D.,(2) on July 14, 1996. For the reasons set forth, I find that Respondent provided an appropriate medical screening examination to S.D. and that the results of that screening examination indicated that S.D. did not suffer from an emergency medical condition at the time of the examination. Because Respondent determined that no emergency medical condition was present, the duty to provide additional stabilizing treatment to S.D. or to transfer her in accordance with the requirements of section 1867 was not triggered. Accordingly, I reject the I.G.'s proposal to impose a CMP of $50,000.

II. Applicable Statutes and Regulations

Section 1867 of the Act specifies the responsibilities placed on those hospitals which have emergency rooms and which participate in the Medicare program.(3) These responsibilities are triggered whenever an individual (whether or not a Medicare beneficiary) comes to a participating hospital's emergency room and a request for medical treatment is made by that individual or on that individual's behalf. Section 1867(a) of the Act. At that point, the hospital must provide an appropriate medical screening examination to determine whether the individual has an emergency medical condition. Section 1867(a) of the Act; see 42 C.F.R. § 489.24(a).

Section 1867(e) of the Act defines "emergency medical condition" to mean:

(B) with respect to a pregnant women [sic] who is having contractions-

(i) that there is inadequate time to effect a safe transfer to another hospital before delivery, or

(ii) that transfer may pose a threat to the health or safety of the woman or the unborn child.

Subsections (b) and (c) of section 1867 of the Act specify additional responsibilities that arise if the hospital determines that an individual suffers from an emergency medical condition. Specifically, the hospital must provide treatment within its capabilities or arrange for transfer of the individual to another medical facility. If the hospital opts to transfer the individual, the hospital must provide at least such treatment as will minimize the risks of transfer, and must meet a number of requirements with regard to documentation, informed consent, and acceptance of the case by the facility to which the individual is being transferred.

Subsection (d) of section 1867, titled "Enforcement," authorizes the I.G. to impose a CMP against a participating hospital that negligently violates any of the statutory requirements. A CMP of up to $50,000 is authorized for each such violation.

In determining the amount of a CMP, the I.G. is required to consider the following factors:

-- the degree of a respondent's culpability;

-- the seriousness of the condition of the individual seeking emergency medical treatment;

-- any prior history of a respondent's offenses;

-- a respondent's financial condition;

-- the nature and circumstances of the violation; and

-- such other matters as justice may require.

42 C.F.R. § 1003.106(a)(4).

The I.G. bears the burden of proving, by a preponderance of the evidence, that Respondent negligently violated the statute. Section 1867(d)(1) of the Act; 42 C.F.R. §§ 1005.15(b)(2) and (d).

III. Factual Background

Rush is a private, non-profit hospital located in Meridian, Mississippi. Respondent's Exhibit (R. Ex.) 35 at 2. In addition to operating an acute care hospital, Rush also operates a primary care clinic, the Central Mississippi Family Health Clinic (Clinic). S.D., who was a Medicaid patient, was referred to the Clinic by the Clarke County Health Department for prenatal care. R. Ex. 2 at 6; R. Ex. 3 at 8. At the time, S.D. was 22 years old and pregnant with her fourth child. R. Ex. 2 at 6; R. Ex. 3 at 10. S.D. was seen at the clinic on a number of occasions for prenatal care. R. Ex. 2 at 7; R. Ex. 3 at 1, 8. In addition, she underwent a routine ultrasound and a Doppler venous study at Rush Hospital during her pregnancy. R. Ex. 3 at 8, 19-20.

During the course of S.D.'s prenatal care, the nurse-midwives at the Clinic became aware that S.D. had a history of deep-vein thrombosis (DVT) during a previous pregnancy. R. Ex. 2 at 9; R. Ex. 3 at 10, 17. DVT is a condition in which blood clots form in the pelvis or legs. Transcript (Tr.) 707. If a pregnant woman develops DVT, there is a risk that a clot will break off and travel to the lungs, resulting in a pulmonary embolism. Tr. 707-08. Pulmonary embolism poses a high risk to both the mother and the unborn child. Tr. 615, 708. Because S.D. was at increased risk for DVT, the Clinic midwife consulted one of her supervising physicians at Rush, who recommended that S.D. be evaluated at the University of Mississippi's University Medical Center (UMC). R. Ex. 3 at 8. UMC is located in Jackson, Mississippi. See, e.g., R. Ex. 4 at 2.

UMC is the only hospital in the State of Mississippi that is designated as Level 3 by the State health plan, indicating that there are in-house physicians at the hospital representing every sub-specialty and that the physicians participate in medical education and research. Tr. 615-16. UMC is also the only Level 1 Trauma Center in Mississippi, which means that it is equipped and certified to handle the most serious trauma cases. Tr. 616. UMC has put in place a prenatal outreach program in an effort to improve the outcome of pregnancy for mothers and babies in Mississippi. Tr. 635-36. Pursuant to this program, UMC physicians and nurses conducted training at every hospital in the State to educate medical personnel to assess the medical risks for pregnant women and their unborn children so that the patients could be referred to a hospital that could offer the optimum level of care. Id.

S.D. was evaluated at UMC. The doctors there prescribed a prophylactic dose of Heparin, an anticoagulant. R. Ex. 4 at 15. The purpose of the Heparin was to reduce the risk that S.D. would again develop DVT, and, if she did develop a clot, to prevent it from becoming a pulmonary embolism. Tr. 617, 710. Once UMC began treating S.D., a physician supervisor at Rush's Clinic recommended that S.D.'s care be transferred to UMC. R. Ex. 3 at 2; Tr. 532. UMC agreed to follow S.D. and planned for her to deliver there. Tr. 670-71. S.D. also agreed with the decision to transfer her care to UMC. R. Ex. 3 at 2.

S.D. made arrangements with Paratech Ambulance Service to transport her from her home in Quitman, Mississippi to UMC in Jackson to deliver her baby. R. Ex. 27 at 2. Pursuant to that agreement, a member of S.D.'s family called Paratech at about 12:30 a.m. on July 14, 1996, because S.D. thought that she was in labor. R. Ex. 7 at 1; R. Ex. 27 at 2; Tr. 309. The ambulance arrived at S.D.'s mother's apartment in Quitman, Mississippi at 12:45 a.m. and departed at 1:00 a.m. Tr. 312; R. Ex. 7 at 2.

The paramedic staffing the ambulance that night was not aware that S.D. had prearranged to be transported to UMC in Jackson. Tr. 340. In any event, S.D. told him that she wanted to be taken to UMC, for her scheduled delivery. Tr. 322, 340; R. Ex. 7 at 1; R. Ex. 27 at 2. However, the paramedic became concerned about transporting S.D. to UMC upon learning of S.D.'s medical history. The paramedic understood S.D. to have a history of blood clots in the pelvis during that current pregnancy (in 1996).(4) Tr. 321, 384. He also understood that she was taking Heparin. Tr. 321-22. The paramedic felt that, given her history, he could not leave his ambulance district without obtaining a physician's order to do so. Tr. 322, 344. Transporting S.D. to Jackson would have required leaving the ambulance district. Tr. 322. The paramedic contacted his physician supervisor by cell phone because he believed that S.D. needed to be evaluated locally before proceeding to Jackson. Tr. 322-23, 344. The physician agreed that S.D. should be evaluated in Meridian. Id.

The paramedic told S.D. that they were going to have her evaluated in Meridian before proceeding to Jackson. Tr. 324. S.D. told the paramedic that she had had her early prenatal care at Rush, and requested to go there. Id. Once the decision was made to go to Rush, at 1:25 a.m., the paramedic radioed to Rush's emergency room to tell them that he was bringing S.D. there. Tr. 312, 325. They arrived at Rush at around 1:30 a.m. Tr. 313. The paramedic brought S.D. into the emergency room and put her in an exam room at the direction of an emergency room nurse. Tr. 327. The emergency room nurse requested that S.D. remain on the ambulance stretcher. Tr. 328. The emergency room nurse told them that a Labor and Delivery nurse would come to evaluate the patient. Id.

Ginger Young, a registered nurse employed in Rush's Labor and Delivery Department, came to the emergency room to examine S.D. Tr. 442-43, 446. Nurse Young took S.D.'s vital signs, performed a sterile vaginal examination of S.D., manually palpated S.D.'s contractions, and measured the fetal heart tones using a Doppler device. Tr. 448-451. After completing her assessment, Nurse Young reported her findings to Valerie Jewell, a certified nurse midwife employed at Rush. Tr. 446, 454-55. Nurse Young and Nurse-midwife Jewell determined that S.D. should proceed on to UMC. Tr. 455.

At about 1:50 a.m., S.D. was placed back in the ambulance and they continued toward Jackson. I.G. Ex. 1; Tr. 313, 334. At about 2:20 a.m., S.D.'s membranes ruptured. Tr. 313, 336. As time went on, S.D. began to have the urge to push. Tr. 337. The paramedic performed an external visual vaginal examination of S.D. Id. He determined that S.D. was bulging, which he understood to be pre-crowning. Based on his experience and training, he felt that the delivery was progressing, so he instructed the ambulance driver to divert to the next available hospital. Id. At about 2:55 a.m., they arrived at Rankin Medical Center. Tr. 313-14. A nurse and an emergency room physician at Rankin delivered S.D.'s baby. Tr. 338. S.D. and her baby did well; there were no complications. Id. At about 4:30 a.m., S.D. and her baby were placed back in the ambulance and transported to UMC. Tr. 314, 338. They arrived at UMC at about 4:55 a.m. Tr. 315.

IV. Discussion

A. The Parties' Arguments

The I.G. contends that Rush failed to perform an appropriate medical screening examination on S.D., in violation of the requirements of section 1867. According to the I.G., the medical screening evaluation was not appropriate because it was not performed competently and because it deviated from written policies promulgated by Rush. It is apparently the I.G.'s contention that, had the medical screening evaluation been performed competently, it would have revealed that S.D. suffered from an emergency medical condition. The I.G. argues that, because S.D. was pregnant with her fourth child and had a history of short labors, it was foreseeable that there was not enough time on July 14, 1996 to transport her from Rush in Meridian to UMC in Jackson before her baby was delivered. The I.G. argues additionally that S.D. suffered from a condition, risk of DVT, that put her and her unborn child at risk when she was transported to UMC. Either of these factors would meet the definition of an emergency medical condition under section 1867, according to the I.G. Because S.D. suffered from an emergency medical condition within the meaning of the Act, the I.G. argues that Rush violated the transfer provisions of section 1867, in that no risk-benefit analysis was performed or documented and no one from Rush called UMC to get UMC's consent to accept S.D. as a patient.

As a threshold matter, Respondent argues that its duties under section 1867 were never triggered because S.D. did not present to Rush seeking treatment. Respondent next argues that, if Rush did owe S.D. a duty under section 1867, it satisfied that duty. Respondent argues that a hospital's duty under section 1867, as interpreted by a number of federal court decisions, is satisfied if the hospital provides a patient presenting to the emergency room with the same type of medical screening examination that the hospital would provide to any other similarly situated patient. Respondent argues that it is immaterial under section 1867 whether a hospital correctly assesses the presence or absence of an emergency medical condition, so long as it has performed an appropriate screening examination. Respondent argues that it provided S.D. with the same type of screening examination that it would have provided to any other similarly situated pregnant patient. Thus, according to Respondent, it did not violate section 1867. Respondent further contends that it correctly determined that S.D. did not have an emergency medical condition when she came to Rush's emergency room on July 14, 1996. Finally, Respondent argues that it was denied due process in proceedings before the Peer Review Organization (PRO).

B. Analysis

My analysis of this case is based on the record as a whole, including the testimony and documentary evidence received at the hearing and the parties' arguments as expressed in their post-hearing briefs. Within this section of the decision, the headings and subheadings represent my findings of fact and conclusions of law. The text following each heading or subheading explains my reasoning in reaching each such finding and conclusion.

1. S.D. presented to Rush's emergency room, and a request was made for examination or treatment.

A participating hospital's duties under section 1867 of the Act are triggered whenever an individual comes to the emergency department and a request is made by the individual or on the individual's behalf for examination or treatment.

Respondent argues that S.D. did not present to the emergency room seeking treatment. Therefore, Respondent argues further, no duty imposed by section 1867 was ever triggered. R. Br. 17-21. Respondent's argument is based on the fact that S.D. had previously arranged for and requested the Paratech ambulance crew to take her to UMC. Respondent contends it should not be penalized for the ambulance company's interference with S.D.'s plan of care. Respondent also points to testimony of Nurse Young to the effect that S.D. told her she had come to the hospital to let one of the nurse-midwives know she was going to UMC to deliver. Tr. 447-48. I agree with Respondent that S.D. and the physicians and nurse-midwives at UMC and Rush planned for S.D. to deliver at UMC.(5) This plan cannot change the fact that S.D. was brought to Rush on July 14, 1996, however.

The regulations implementing section 1867 make clear that a patient brought by a non-hospital-owned ambulance to an emergency room is considered to have come to the emergency room as soon as the ambulance enters on hospital property. 42 C.F.R. § 489.24(b). Here, there is no dispute that S.D. was actually brought to Rush's emergency room. Therefore, I must conclude that S.D. presented to the emergency room.

There may be some legitimate dispute as to whether S.D. herself requested examination or treatment of Rush. Nurse Young's testimony casts some doubt on what S.D. understood the purpose of her visit to Rush to be. Tr. 447-48. Nevertheless, it is clear to me that the paramedic conveyed, at a minimum, a request that S.D. be examined by Rush's staff. He testified that he told the emergency room nurse that he had brought S.D. to Rush to have her evaluated to see if delivery was imminent before proceeding on to UMC. Tr. 330; see also id. at 447. For this reason, I conclude that a request was made on S.D.'s behalf for examination in the emergency room.

Because S.D. came to the emergency room and a request was made on her behalf for examination, I find that Respondent's duty to provide S.D. with a medical screening examination, as required by section 1867, was triggered.

2. Rush provided an appropriate medical screening examination to S.D.

The parties vehemently disagree as to whether Nurse Young's evaluation of S.D. on the night of July 14, 1996 represented an appropriate medical screening examination satisfying the requirements of section 1867. The I.G. argues that an appropriate medical screening examination would have required that S.D. be brought to Rush's Labor & Delivery Department (L&D) and placed on continuous electronic fetal monitoring. I.G. Br. 24. It is undisputed that this was not done. On the other hand, Respondent argues that Nurse Young's evaluation of S.D. was the functional equivalent of the examination which S.D. would have received in L&D. See, e.g., R. Br. 24, 29. I find that the greater weight of the evidence supports the conclusion that Nurse Young performed an adequate medical screening examination.

As an initial matter, I note that Respondent correctly states the legal standard for determining what is an "appropriate medical screening" as enunciated by the federal courts. Specifically, in Marshall v. East Carroll Parish Hospital, 134 F.3d 319 (5th Cir. 1998), the U.S. Court of Appeals for the Fifth Circuit held that an appropriate medical screening "is not judged by its proficiency in accurately diagnosing the patient's illness, but rather by whether it was performed equitably in comparison to patients with similar symptoms." Id. at 322. It is of crucial importance to recognize that, for purposes of section 1867, the question of whether a hospital arrived at a correct diagnosis is irrelevant to the question of whether it provided an appropriate medical screening examination.(6)

It appears that the I.G. has lost sight of this critical point, however, because her argument is premised, in large part, on the assumption that Nurse Young's evaluation was inadequate because it failed to predict that S.D. would deliver her baby before reaching UMC. See, e.g., I.G. Reply 6. The I.G.'s argument relies on hindsight to fault Nurse Young's medical judgment. But, even if Nurse Young's medical judgment had been wrong (a conclusion I do not draw, as discussed below), it would not matter so long as she provided S.D. with the same type of evaluation given to any other pregnant patient.

Nurse Young testified that, during her evaluation of S.D., she took vital signs, performed a sterile vaginal examination, assessed fetal heart tones with the Doppler, and palpated manually for contractions. Tr. 448-50. The results of the sterile vaginal examination revealed that S.D.'s membranes were intact; her cervix was dilated three to four centimeters, and approximately 60% effaced; and the baby's head was at the -1 station. Tr. 450. Nurse Young also testified that before she saw S.D. in the emergency room, she had reviewed S.D.'s records in the L&D Department. Tr. 446. Based on her review of these records, Nurse Young was aware that S.D. was scheduled to deliver at UMC because of S.D.'s history of thrombophlebitis. Tr. 447.

Nurse Young wrote a note documenting her clinical findings and gave it to the paramedic to take along in the ambulance. Tr. 451; R. Ex. 14. Nurse Young also placed a note documenting her findings in S.D.'s record in Rush's L&D department. Tr. 452; R. Ex. 15.

a. The medical screening examination was equivalent to that provided other pregnant patients.

The I.G. would have me conclude that S.D. was not given the same examination given to other pregnant patients. In making this argument, the I.G. points to Rush's policy regarding obstetrical patients who present to the delivery room:

Any patient presenting to the Emergency Room for questionable labor from 20 weeks gestation to term will be evaluated by 3 West Nursing staff. After completing identifying data and notifying the floor, the patient will be taken to 3 West observation room to be attached to Electronic Fetal Monitor.

I.G. Ex. 57. The I.G.'s position is that because S.D. was not taken to 3 West (Rush's L&D Department), and was not hooked up to electronic fetal monitoring, S.D.'s evaluation did not conform to the evaluation given other pregnant patients. The difficulty with this argument is that the I.G. presented no evidence from any Rush staff member or any Rush patient that would tend to prove that other pregnant patients at Rush received a different examination than the one provided S.D.

To the contrary, Nurse Young testified that the examination she performed on S.D. was the same examination she would have performed on any other pregnant patient presenting at Rush with similar symptoms. Tr. 454. In addition, Respondent's experts, Drs. Purdy, Morrison, and Goldstein, all testified that the examination Nurse Young performed was the same examination that they would have performed. Tr. 538-39, 604-05, 693-94. Moreover, Dr. Purdy, who formerly practiced at Rush and was familiar with Rush's policies, testified that Nurse Young's evaluation of S.D. in the emergency room was essentially equivalent to that described in the policy. Tr. 528, 551-52. He opined that the effect of having Nurse Young, a trained obstetrical nurse, come to the emergency room to evaluate S.D., was merely to change the point of service for the evaluation. Tr. 552. For that reason, Dr. Purdy opined that Rush substantially complied with the policy. Id.(7)

Thus, I find that the greater weight of the evidence supports the conclusion that Nurse Young provided S.D. with the same medical screening examination that would have been provided to any other pregnant patient presenting at Rush.

b. The medical screening examination was competent to determine whether an emergency medical condition existed.

In her reply brief, the I.G. argues that Nurse Young failed to provide a "competent" medical screening examination of S.D. I.G. Reply 5 n.2. I interpret this argument to mean that, even if Nurse Young took the appropriate steps in examining S.D. - performing a sterile vaginal examination and measuring fetal heart tones, for example - I should nonetheless conclude that she performed these tasks so incompetently that, in effect, no medical screening examination was given.(8) In particular, the I.G. finds fault with the way in which Nurse Young measured fetal heart tones and assessed S.D.'s contractions.

The I.G. apparently concedes that monitoring fetal heart tones by Doppler is within the standard of care. See I.G. Br. 28 n.20; I.G. Reply 6. The I.G. contends, however, that Nurse Young did not use the Doppler properly, and therefore could not reliably assess the presence or absence of fetal distress. I.G. Br. 28-29; I.G. Reply 6. The I.G. points to I.G. Ex. 70 for the proposition that the Doppler should be taken in relation to a contraction to observe the baby's response to labor. The I.G. argues that Nurse Young did not understand the relationship between contractions and measuring fetal heart tones. I.G. Reply 6. The evidence does not prove the I.G.'s assertion.

Nurse Young testified that she had received training in the use of the Doppler fetal heart rate monitor through on-the-job training and in-service training. Tr. 449-50. She testified that she measured fetal heart tones intermittently while S.D. was in the emergency room. Tr. 494. She measured the fetal heart tones on S.D.'s arrival at Rush, took them intermittently while S.D. was there, and took them again before S.D. was placed on the ambulance for continued transport to UMC. Tr. 493. Nurse Young testified that she measured the fetal heart tones more than three times, but less than ten times. Tr. 449. The fetal heart tones were within the same range each time she measured them. Tr. 495. All of the readings were in the 160's, though the actual numbers varied somewhat each time. Tr. 450, 495. Upon cross-examination, Nurse Young stated that S.D. was not having a contraction the first time she measured the fetal heart tones. Tr. 493. She did not recall whether S.D. was having a contraction when she measured fetal heart tones for the second time. Id.(9)

Nurse Young's testimony demonstrates only that S.D. was not having a contraction when Nurse Young measured the fetal heart tones the first time. Nurse Young could not recall whether or not S.D. was having a contraction during the second measurement. The testimony is silent as to whether any of Nurse Young's other intermittent measurements coincided with a contraction. It seems more likely than not that one of her measurements followed a contraction. Similarly, I can find no support for the suggestion that Nurse Young lacked an understanding of the relationship between contractions and measuring fetal heart tones. She was never asked to explain what her understanding was.

One of the I.G.'s expert witnesses, Dr. Ball, testified that, without a printout from an electronic fetal monitor, it would be difficult for him to assess whether or not S.D.'s baby was in distress based on Nurse Young's note indicating that fetal heart tones were in the 160's. Tr. 97-100. Dr. Ball also testified that he himself has assessed patients by using a Doppler and "laying on of hands" and his criticism of that method of assessment was that it is "subjective" and "not reproducible." Tr. 97. I understand Dr. Ball's testimony to be that the documentation he reviewed was inadequate for him definitively to diagnose or rule out fetal distress in S.D.'s case. I do not find that his testimony indicates that Nurse Young's assessment was per se inadequate to diagnose fetal distress.

The I.G. also argues that Nurse Young's examination was incompetent because she failed to time S.D.'s contractions. Nurse Young did manually palpate S.D.'s contractions, however. Tr. 450-51. Nurse Young also obtained a history from S.D. as to the onset and frequency of her contractions. R. Ex. 15. In addition, Nurse Young had the results of her sterile vaginal examination of S.D. Based on these factors and relying on her experience as an OB nurse who had attended hundreds of laboring women (Tr. 451), she formed a medical judgment about S.D.'s labor.(10) Her judgment was that S.D. was in the first stage of active labor. Tr. 495, 506-07. Her judgment was that S.D. was not likely to deliver within two hours. Tr. 508. Nurse Young conveyed the results of her examination to the certified nurse-midwife on duty, who concurred with Nurse Young's judgment. Tr. 447, 454-55.

Respondent's expert witnesses all testified that the medical screening examination performed by Nurse Young was adequate and appropriate. Tr. 538, 604, 693-94. The I.G.'s expert witnesses disagreed. Tr. 97-100, 222-24. In determining what weight to accord the testimony of the expert witnesses, I have considered the experts' education and training, their experience, their reputations within their fields of expertise, and their demeanor in testifying before me. Based on these criteria, I find Dr. Morrison to be the most authoritative and credible of the experts presented by either party. Further, on balance, I find that the experience, training and reputation of Respondent's experts outweighs that of the I.G.'s experts.

Dr. Ball and Dr. Barnes may be competent practitioners, but they clearly lack the scope of expertise of Dr. Morrison. I.G. Exs. 39, 40. Indeed, Dr. Barnes no longer actively practices in the field of obstetrics. Tr. 235. Of Respondent's witnesses, Dr. Goldstein also no longer personally delivers babies. Tr. 691. However, Dr. Goldstein, like Dr. Morrison, is well-known for his research in the field of maternal-fetal medicine. Tr. 196-97; see also R. Ex. 29. He also manages a department that has 4,000 deliveries annually. Tr. 691. Dr. Purdy is a practicing obstetrician-gynecologist. Tr. 525. He chairs the department of obstetrics and gynecology at Riley Memorial Hospital in Meridian, Mississippi. Tr. 527; see also R. Ex. 31.

Dr. Morrison is an internationally-known expert in the field of maternal-fetal medicine. Tr. 195. He is board-certified in obstetrics and gynecology, maternal-fetal medicine, and surgery. Tr. 599. Dr. Morrison is the Chair of the Department of Obstetrics and Gynecology at UMC, where he delivers 150-250 babies per year. Tr. 599, 601. He is also engaged in education and research, having published over 400 peer-reviewed articles, 80 book chapters, and three text books. Tr. 599-600, 602. See also R. Ex. 30. In addition, Dr. Morrison himself treated S.D. both before and after the birth of her baby. Tr. 617, 620.

Dr. Morrison testified clearly and forthrightly.(11) Dr. Morrison stated that Nurse Young's examination of S.D. was "adequate, competent, and met the standard of care." Tr. 604. For the reasons just discussed, I accord to his testimony greater weight than I accord to the testimony of the other experts.

I cannot find on the evidence presented that Nurse Young's evaluation of S.D. was so incompetent as to have been meaningless. Further, the greater weight of the evidence favors the conclusion that the examination was equivalent to that provided to other pregnant patients. Accordingly, Rush provided S.D. with an adequate medical screening examination within the meaning of section 1867. That medical screening examination resulted in a determination that S.D. did not have an emergency medical condition defined by the statute. Specifically, the medical screening examination determined that there was adequate time to transport S.D. to UMC before delivery.

3. Rush's determination that S.D. did not suffer from an emergency medical condition was reasonable under the circumstances.

Respondent argues that section 1867 was not intended to create a federal cause of action for misdiagnosis or improper medical treatment. See R. Br. 15. Rather, according to Respondent, the remedial purpose of section 1867 is to discourage hospitals from providing indigent patients with less care than they would provide similarly situated patients who have the ability to pay. If this interpretation of section 1867 is correct, it is irrelevant whether Rush's determination that S.D. did not suffer from an emergency medical condition was correct. I am inclined to agree with Respondent's position. The I.G. has argued at great length, however, that S.D. in fact suffered from an emergency medical condition. Therefore, while it may be little more than dicta, I will discuss why I conclude that Rush exercised reasonable medical judgment in concluding that S.D. did not suffer from an emergency medical condition.

The I.G. points to two factors which, in her view, demonstrate that S.D. suffered from an emergency medical condition. The first factor is S.D.'s history of short labors. From this factor, the I.G. alleges, Rush should have known there was inadequate time to transport S.D. to UMC before her delivery. The I.G. argues, accordingly, that S.D. suffered from an emergency medical condition under section 1867(e)(1)(B)(i). The second factor is S.D.'s risk of developing DVT, and the fact that she was taking Heparin to minimize this risk. According to the I.G., these facts meant that transport of S.D. would pose a risk of serious harm to S.D. or her unborn child. Thus, on these facts, the I.G. contends that S.D. had an emergency medical condition within the meaning of section 1867(e)(1)(B)(ii).

a. S.D.'s history of rapid labor did not outweigh other factors indicating that there was adequate time to transport S.D. to UMC before delivery.(12)

The I.G. makes the argument that, since S.D. delivered her baby en route between Rush and UMC, "[t]hat fact alone establishes that there was not enough time to effect a safe transfer and establishes that S.D. had an emergency medical condition . . . ." I.G. Br. 36. The I.G. goes on to acknowledge that Rush should not be held liable under section 1867 unless it was foreseeable at the time S.D. was evaluated at Rush that she would deliver before she reached UMC. Id. Nevertheless, in my judgment, the I.G.'s entire case depends upon reasoning from hindsight, as the first quoted sentence suggests. The weight of the evidence, however, is that S.D.'s unusually rapid delivery was not foreseeable.

The I.G. presented the testimony of two expert witnesses who were of the opinion that S.D.'s rapid delivery was foreseeable. One of the I.G.'s experts, Dr. Ball, testified that, based on S.D.'s history of previous labors lasting thirteen, eight, and four hours, he would not have expected her last labor to last more than four hours. Tr. 110. On the other hand, Dr. Ball admitted on cross-examination that an eight-hour labor would be average for women with S.D.'s clinical signs. Tr. 173-74; see also R. Ex. 32 at 2.

Dr. Ball also relied on the frequency of S.D.'s contractions, as measured by the ambulance paramedic, as a factor influencing his opinion that it was foreseeable that there was not enough time to transport S.D. to UMC before delivery. See, e.g., Tr. 132-33, 174. There is conflicting evidence in the record about how frequently S.D. was contracting. The paramedic who attended S.D. in the ambulance recorded that S.D. was contracting every two to three minutes and that her contractions were 90 seconds in duration. I.G. Exs. 1, 2. Nurse Young's note and affidavit indicated that S.D. was having contractions every four to six minutes. R. Exs. 11, 15. S.D.'s declaration suggests that she may have been contracting every seven minutes. I.G. Ex. 15 at ¶¶ 16, 17.

As noted previously, Dr. Ball relied on the paramedic's observations in reaching his opinion. On the other hand, Respondent's experts generally relied more on the observations of Nurse Young and S.D. One expert, however, gave an opinion which reconciled all the apparently conflicting testimony.

Dr. Morrison testified that it is a hallmark of latent labor to have contractions that vary in frequency. Speaking of the different frequencies recorded for S.D.'s contractions, he said:

Perhaps all of them are right because, when contractions vary from every two to three to every four to five to every seven and a half minutes, that's sort of a hallmark of false labor or latent labor.

Tr. 655. Dr. Morrison further testified that the results of Nurse Young's sterile vaginal examination of S.D. were consistent with S.D. being in the latent stage of labor. Tr. 608. As noted above, Nurse Young recorded that S.D.'s cervix was dilated three to four centimeters and that the baby's head was at the -1 station. In contrast, Dr. Morrison stated that clinical signs of active labor would include dilation of the cervix to four to five centimeters and the baby's head at the 0 or +1 station. Id. Perhaps most importantly, Dr. Morrison opined that, even if S.D. had been contracting consistently two to three minutes apart, as recorded by the paramedic, the other factors would outweigh the frequency of contractions. Tr. 653.

I have already discussed above my reasons for according great weight to Dr. Morrison's testimony. For those reasons, and because his is the only testimony that convincingly rationalizes apparently conflicting evidence in the record, I rely on his expert opinion to determine that, even if S.D. had been contracting two to three minutes apart prior to her arrival at Rush, that fact would not have been sufficient to put Rush on notice that S.D.'s delivery was imminent.

The I.G.'s other expert, Dr. Barnes, also testified that it would have been foreseeable to an experienced practitioner that S.D. would deliver before she got to UMC:

[T]he patient started her contractions at midnight, and an hour and 20 minutes later, she had already thinned out her cervix 60 percent; she had already dilated the cervix three to four centimeters; and if you look back at the record on the ambulance, it was 20 minutes after they put the lady back into the ambulance that she ruptured her membranes, and when the membranes ruptured, . . . her labor picked up, accelerated, and then shortly thereafter, she delivered . . . . [K]nowing the pattern of labor, an experienced either nurse practitioner or physician would have known that [S.D.] was going to deliver before she got 90 miles down the road.

Tr. 227-28. Dr. Barnes' testimony proceeds from at least one assumption that is inaccurate according to S.D.'s medical records, however. S.D.'s cervix did not dilate from closed to three or four centimeters between midnight and 1:30 a.m. on July 14, 1996. Instead, as early as July 1, 1996, S.D.'s cervix was three centimeters dilated, without any contractions. R. Ex. 4 at 12; Tr. 611. Moreover, Dr. Barnes' testimony relies on the fact that S.D.'s membranes ruptured approximately 20 minutes after she left Rush's emergency room. Thus, even according to Dr. Barnes' testimony, it would have been apparent that S.D. was in the accelerated phase of labor only after she left Rush. Dr. Barnes did not explain how, other than in hindsight, Rush's personnel could have known that S.D.'s membranes would rupture in such a relatively short period of time.

In contrast to the testimony of Dr. Ball and Dr. Barnes, Respondent's experts all were of the opinion that S.D.'s labor was so far outside the norm that it was not reasonably foreseeable that she would deliver as quickly as she did. For example, Dr. Morrison testified that among women having previous births, 50 percent have a shorter labor and 50 percent have a longer labor than their shortest previous labor. Tr. 609. Therefore, in his opinion, a history of short labor is not particularly useful in predicting how short the present labor will be. Id. Considering the results of Nurse Young's examination of S.D., Dr. Morrison would have been 99 percent sure S.D. would not have delivered before two to four hours had passed. Tr. 613; see also id. at 622, 637. Dr. Purdy and Dr. Goldstein similarly concluded that a woman with S.D.'s clinical signs would be unlikely to deliver in less than two hours. Tr. 562-63, 703.

I find that the greater weight of the evidence supports the conclusion that Rush did not act unreasonably in determining that there was adequate time to transport S.D. to UMC. Therefore, Rush was justified in concluding that S.D. did not have an emergency medical condition within the meaning of section 1867(e)(1)(B)(i).

b. S.D.'s risk of DVT and use of Heparin did not indicate that transporting her to UMC would pose a threat to her or to her unborn child.

I observe at the outset that the I.G.'s argument on this point is somewhat circular. The I.G. apparently does not dispute that Rush transferred S.D.'s care to UMC precisely because she was at risk for developing DVT and because UMC medical staff prescribed a prophylactic dose of Heparin to deal with this risk. See, e.g., Tr. 532-34, 615. Presumably, the I.G. does not dispute that it was reasonable for S.D. to have planned to deliver her baby at UMC, again precisely because of her risk of developing DVT. See Tr. 106. Nevertheless, the I.G. argues that, on July 14, 1996, when S.D. went into labor, transporting her to UMC posed too great a risk to her and her baby. The only possible basis for such an argument is that, in hindsight, it became clear that S.D. did not reach UMC before her baby was delivered. I have explained in the previous section why I believe that S.D.'s unusually rapid delivery was not reasonably foreseeable, however. Accordingly, there is no basis for Rush to have concluded that transport of S.D. to UMC on July 14, 1996 would pose a risk to S.D. or her unborn child on account of S.D.'s risk of developing DVT.

There is no dispute that DVT is a potentially serious condition in pregnant women because of the potential for it to lead to pulmonary embolism. See, e.g., Tr. 615, 657, 707-710. S.D. was already at risk for DVT, however, prior to July 14, 1996. She had been identified as a high-risk patient. That was why her prenatal care had been transferred to UMC. Transporting her from Rush to UMC on July 14, 1996 did not change the fact that she was at risk to develop DVT. There is no suggestion anywhere in the record that the transport itself would have increased S.D.'s risk of developing either DVT or a pulmonary embolism. The I.G.'s argument is apparently premised on the concern that S.D. might have suffered a pulmonary embolism while en route from Rush to UMC. But the weight of the expert testimony is that, had S.D. developed a pulmonary embolism, the best place for her to be treated would have been UMC, a tertiary care center where the staff was familiar with her risk factors and had planned for her delivery. See Tr. 534, 619, 621, 710. Thus, while it is true that S.D. was a high-risk patient because of her risk of developing DVT, it is not the case that her transport to UMC on July 14, 1996 placed her or her unborn child at any greater risk from this condition.

I am persuaded, based on all the evidence of record in this case, that Rush sent S.D. on to UMC in the early morning hours of July 14, 1996, because that was what the doctors and nurse-midwives at Rush, as well as the doctors at UMC, had previously decided would be the best way to care for her and her unborn child in light of her risk of developing DVT. The I.G.'s argument that Rush violated section 1867 because S.D. was at risk for developing DVT is entirely unpersuasive.

The I.G. also suggests that S.D.'s use of Heparin to treat her risk of DVT put her at risk of hemorrhage. According to the I.G., this risk of hemorrhage was another factor that placed S.D. and her unborn child at risk. I.G. Br. 32. Dr. Ball testified that S.D. was at increased risk of postpartum hemorrhage. Tr. 104, 106. The paramedic believed that Heparin use put S.D. at risk for postpartum hemorrhage. Tr. 332. Dr. Morrison's testimony was quite clear, however, that the dose of Heparin S.D. had been prescribed did not put her at risk of hemorrhage. Tr. 616-18. According to Dr. Morrison, S.D.'s dose of Heparin was sufficient to prevent clots from forming in her veins (i.e. DVT), but it was not enough to anticoagulate her to the extent that she would have been in danger of hemorrhaging. Tr. 616-17. Moreover, Dr. Morrison testified, if S.D. had suffered postpartum hemorrhage, it would not have been caused by her dose of Heparin, but by some more serious complication. Tr. 619. In that event, S.D. would have needed the full resources available at UMC. Tr. 618-19. Dr. Morrison's experience and training certainly make his opinion more reliable than that of the paramedic. Similarly, he has greater experience in treating high-risk patients than does Dr. Ball. Perhaps most importantly, Dr. Morrison himself participated in the management of S.D.'s case, so he would be in the best position to assess her risk of hemorrhage. See Tr. 617.

For these reasons, I find that the greater weight of the evidence supports the conclusion that transporting S.D. from Rush to UMC on July 14, 1996 did not pose a threat to her or to her unborn child within the meaning of section 1867(e)(1)(B)(ii).

4. Once Rush determined that S.D. did not suffer from an emergency medical condition, it satisfied its duty under section 1867.

As I have concluded above, Rush made a reasonable medical judgment, based on an appropriate medical screening examination, that S.D. did not suffer from an emergency medical condition on July 14, 1996. As I will discuss more fully below, once Rush made that determination, even if that determination resulted from a misdiagnosis, Rush satisfied its duties under section 1867 of the Act. Furthermore, because Rush determined that S.D. did not suffer from an emergency medical condition, Rush was under no obligation to provide stabilization and treatment or to comply with the transfer requirements of section 1867.

The federal courts that have ruled on this issue have uniformly concluded that section 1867 imposes a duty on hospitals to treat, stabilize, or transfer in accordance with the statute, only those emergency medical conditions of which the hospital has actual knowledge. For example, in Urban v. King, 43 F.3d 523 (10th Cir. 1994), the U.S. Court of Appeals for the Tenth Circuit held that, "the statute's stabilization and transfer requirements do not apply until the hospital determines the individual has an emergency medical condition." Id. at 526. In Vickers v. Nash General Hospital, 78 F.3d 139 (4th Cir. 1996), the Fourth Circuit went even further, holding that section 1867 "does not hold hospitals accountable for failing to stabilize conditions of which they are not aware, or even conditions of which they should have been aware." Id. at 145.

The I.G. argues that Rush failed to provide treatment within its capabilities, failed to weigh the risks and benefits of transfer, and failed to ascertain whether UMC would accept transfer of S.D. I.G. Br. 39-42. These arguments are simply irrelevant, since Rush was not obliged to fulfill any of these duties once it determined that S.D. did not have an emergency medical condition. Moreover, I observe, in passing, as did Dr. Morrison, that it would hardly be necessary to contact UMC to request that they accept S.D. as a patient, since she was already a UMC patient and they had planned for her to deliver there. See Tr. 669-70.

5. I have no authority to address Rush's constitutional arguments.

Respondent argues that it was denied due process in the proceedings before the Peer Review Organization (PRO). As an administrative law judge, I lack the authority to rule on Respondent's constitutional claims. See Morton Markoff, D.O., DAB CR538 (1998). In any event, even if the PRO proceedings had been constitutionally defective, Respondent's due process concerns are moot, since it has had a full de novo hearing on the record before me.

6. There is no basis for the imposition of a CMP.

I have concluded, for the reasons explained above, that the evidence does not establish that Respondent violated section 1867 of the Act. Accordingly, there is no basis for the I.G. to impose a CMP of any amount against Respondent. For this reason, it is unnecessary for me to discuss the factors used in determining the amount of a CMP.

V. Conclusion

For the reasons set forth in this decision, I conclude that the I.G. failed to prove that Respondent violated section 1867 of the Act with respect to the treatment of S.D. on July 14, 1996. Accordingly, there is no basis for the imposition of a CMP against Respondent.

JUDGE
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Alfonso J. Montano

Administrative Law Judge

 

FOOTNOTES
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1. 1 I will refer to the I.G.'s main post-hearing brief as "I.G. Br.," and her reply as "I.G. Reply." I will refer to Respondent's post-hearing brief as "R. Br.," and its reply as "R. Reply."

2. In this decision, I refer to the patient by her initials, to protect her privacy.

3. 3 A hospital participating in the Medicare program is defined as a "participating hospital." Section 1867(e)(2) of the Act.

4. In fact, S.D. never developed blood clots during her 1996 pregnancy. Tr. 104, 380.

5. It also appears that, had the ambulance taken S.D. directly to UMC, she would likely have arrived there in time to deliver her baby. The total elapsed driving time for the ambulance that night was two hours: 30 minutes from S.D.'s home to Rush; 65 minutes from Rush to Rankin Medical Center; and 25 minutes from Rankin to UMC. See R. Ex. 7 at 2; Tr. 309-315. The ambulance left S.D.'s home at 1:00 a.m.; her baby was delivered shortly after 2:55 a.m. Id.

6. I do not read the case law as suggesting that hospitals may negligently perform medical screening examinations, reaching incorrect diagnoses, with impunity. Rather, the federal courts take the position that such issues are not covered by section 1867, but are adequately addressed by malpractice actions under State law.

7. Dr. Morrison went even further, opining that Rush went above and beyond the call of duty to try to assess S.D. quickly so that she could proceed to UMC, if appropriate. Tr. 621.

8. If the I.G. were not arguing that the medical screening examination was so incompetent as to be useless, her argument would be irrelevant. As noted above, the adequacy of a medical screening examination is not judged by whether it results in a correct diagnosis. Marshall v. East Carroll Parish Hospital, 134 F.3d at 322.

9. The I.G.'s cross-examination questions suggest that the I.G. believes fetal heart tones should be measured during a contraction. By contrast, the "Guidelines for Perinatal Care" published by the American Academy of Pediatrics and the American College of Obstetricians and Gynecologists, states that it is preferable to measure fetal heart tones after a contraction when intermittent auscultation is used. R. Ex. 34 at 4.

10. All the expert witnesses opined that an OB nurse is qualified to perform a medical screening examination of a pregnant patient complaining of contractions. Tr. 131, 157-58, 160 (Dr. Ball); 266, 270-71 (Dr. Barnes); 538 (Dr. Purdy); 605-07 (Dr. Morrison); 694 (Dr. Goldstein). Nurse Young's personnel record demonstrates that as of at least July 1, 1995, she was authorized by Rush to perform assessments of pregnant patients without supervision. R. Ex. 8 at 12-13.

11. I reject the I.G.'s suggestion that Dr. Morrison demonstrated a bias against the I.G. See I.G. Reply 38-39. I also reject the suggestion that Dr. Morrison is a "professional witness." Id. at 38. Dr. Morrison is clearly much too busy a practicing physician and educator to be characterized as a professional witness. As to any alleged bias against the I.G., Dr. Morrison's testimony satisfied me that his remarks in a speech had absolutely no bearing on his opinions in this case. See Tr. 686-87.

12. I note that section 1867(e) defines emergency medical condition to include cases where there is inadequate time to "transfer" the pregnant patient, or where "transfer" would pose a risk to the patient or her unborn child. I believe the use of the term "transfer" as part of the definition of an emergency medical condition may lead to confusing the issue of whether an emergency medical condition exists with the separate issue of whether a patient with an emergency medical condition was transferred to another facility in accordance with the requirements of section 1867(c)(2). Because I conclude that S.D. did not have an emergency medical condition within the meaning of section 1867(e), I use the term "transport" rather than "transfer" to try to avoid this confusion.

CASE | DECISION | JUDGE | FOOTNOTES