SPRADLIN v. ACADIA-ST. LANDRY MED. FOUND.

LEMMON, Justice.*

This is an action against a private hospital for survival and wrongful death damages. This matter is before the court on an exception of prematurity. The narrow issue is whether plaintiffs' claims under the federal Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd, and under the Louisiana "anti-dumping"1 statute, La.Rev.Stat. 40:2113.4-2113.6, when the claims are joined with medical malpractice claims, are subject to the pre-suit medical review panel requirement of the Louisiana Medical Malpractice Act, La.Rev.Stat. 40:1299.47 A.

Facts

On August 24, 1995, at 12:45 p.m., Rickey Spradlin took his wife to the emergency room of defendant's private hospital with complaints of vomiting, upper back pain, fever and diarrhea. Mrs. Spradlin was examined by a doctor, two nurses and a respiratory therapist. Based on the results of laboratory tests and chest x-rays, the emergency room doctor diagnosed right upper lobe pneumonia and provisionally diagnosed right upper lobe cancer. After discussing his diagnosis with the couple, the doctor arranged for Mrs. Spradlin's transfer by ambulance to a public hospital about forty-five minutes away.2

Mrs. Spradlin suffered cardiac arrest in the public hospital that night and died early the next morning. The autopsy report states the probable cause of death as pseudomonas pneumonitis.

Plaintiffs, Mrs. Spradlin's survival and wrongful death beneficiaries, filed this action, naming the private hospital as the sole defendant and alleging patient "dumping" in violation of both EMTALA, 42 U.S.C. § 1395dd, and La.Rev.Stat. 40:2113.4.3 Defendant lodged a dilatory exception of prematurity, claiming that it was a qualified health care provider and that the Louisiana Medical Malpractice Act required the entirety of plaintiffs' claims to be submitted first to a medical review panel. The district court overruled the exception without assigning reasons.

On defendant's application, the court of appeal exercised its supervisory jurisdiction and addressed the merits of the issue, initially agreeing with the district court. The court of appeal held that "[w]hile the Louisiana Medical Malpractice Act offers protections to medical providers whose liability arise from acts of negligence pertaining to the treatment of patients, EMTALA and La. R.S. 40:2113.4, exceptions to La. R.S. 40:1299.41, specifically govern instances in which damages result from the deprivation of emergency services by those ordinarily covered providers on the basis of an individual's lack of means." 97-845, p. 7 (La.App. 3d Cir.1/21/98), 711 So.2d 699, 702-03.

On rehearing, however, the court sustained defendant's exception of prematurity in part, holding that plaintiffs' action was premature to the extent they alleged conduct that constitutes a medical malpractice claim. The court stated:

97-845, p. 1 (La.App. 3d Cir.6/24/98), 711 So.2d 699, 703 (on reh'g).

We granted defendant's application for certiorari, which urged that an EMTALA claim joined in the same action with a medical malpractice claim must also be submitted to a medical review panel. 98-1977 (La.11/6/98), 726 So.2d 914.

Prematurity

The dilatory exception of prematurity questions whether the cause of action has matured to the point where it is ripe for judicial determination. This exception is the proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for decision by a medical review panel before filing suit against the provider. In this type of case, the exception of prematurity neither challenges nor attempts to defeat any of the elements of the plaintiffs cause of action. Rather, the defendant asserts that the plaintiff has failed to take some preliminary step necessary to make the controversy ripe for judicial involvement. Thus a malpractice claim against a private qualified health care provider is subject to dismissal on a timely filed exception of prematurity if such claim has not first been screened by a pre-suit medical review panel. La.Rev.Stat. 40:1299.47 A. This pre-suit screening process acts to delay, not to defeat, a tort suit for malpractice. Frank L. Maraist and Thomas C. Galligan, Jr., Louisiana Tort Law § 21-3(f) (1996).

EMTALA and the Louisiana Medical Malpractice Act

Defendant argues that when a plaintiff joins a medical malpractice claim with alternative theories of liability, the entirety of the plaintiffs case is subject to the medical review panel requirement. This argument, of course, raises such issues as whether EMTALA incorporates procedural and substantive provisions of the applicable state law and whether EMTALA preempts any of those provisions.

The statutory definition of malpractice and the federal and state prohibition against patient "dumping" often involve similar conduct. The term "malpractice" has its roots (and relevance) in differentiating professionals from nonprofessionals for purposes of applying certain statutory limitations on tort liability. Health care providers are said to "practice" their profession, and their negligence in providing such professional services is called malpractice. Maraist & Galligan, supra at § 21-2.

On the other hand, hospitals, which are the only health care providers covered by EMTALA, are distinct legal entities that do not, in the traditional sense of the word, "practice" medicine. In the absence of statute, hospitals are subject to potential tort liability only vicariously on the basis of respondeat superior or independently on the basis of negligent hiring or training of the professional staff members employed by the hospital. Hospitals have frequently avoided even those forms of tort liability by asserting as a defense the independent contractor status of their professional staff members.

Indeed, this ability of hospitals to insulate themselves from tort liability, coupled with the general "dumping" problem, has been cited as one factor prompting Congress' creation of a private cause of action against hospitals in EMTALA. Wendy W. Bera, Comment, Preventing "Patient Dumping": The Supreme Court Turns Away the Sixth Circuit's Interpretation of EMTALA, 36 Hous. L.Rev. 615, 623 (1999).

In analyzing the relationship between the two "anti-dumping" statutes (EMTLA, which creates a separate cause of action for damages, and La.Rev.Stat. 40:2113.44) and the Louisiana Medical Malpractice Act, we first discuss the acts individually in the order of their adoption.

The Louisiana Medical Malpractice Act

In 1975, the Louisiana Legislature, in response to a perceived medical malpractice crisis, enacted the Medical Malpractice Act.5 Under the Act, a private health care provider, by taking specified steps, can become qualified for entitlement to certain limitations not available to other tort defendants. The primary limiting provisions available to private health care providers are the maximum amount of damages and the mandatory pre-suit review by a medical review panel, along with the special prescriptive and peremptive periods for malpractice actions provided by La.Rev. Stat. 9:5628.6

Since all of the limiting provisions applicable to qualified health care providers are "special legislation in derogation of the rights of tort victims," these provisions are all strictly construed. Sewell v. Doctors Hosp., 600 So.2d 577, 578 (La.1992). Moreover, these special provisions apply only to "malpractice," as defined in the Act, and any other liability of the health care provider is governed by general tort law.7

The Louisiana "Anti-Dumping" Statute

In 1980, the Louisiana Legislature enacted La.Rev.Stat. 40:2113.4-2113.6, establishing a statutory duty on the part of certain hospitals to provide emergency services to all persons residing in the territorial area, regardless of whether they are insured or able to pay. Section 2113.4 provides in part:

The purpose of this type of enactment, which had been adopted in several states and by Congress in the Hill-Burton Act, was to override the common law rule that hospitals have no duty to provide emergency treatment. Like the Hill-Burton Act and most other similar state enactments, but unlike EMTALA, the Louisiana "anti-dumping" statute contains no express private cause of action.8

EMTALA

In 1986, Congress enacted EMTALA in response to growing concern over the conduct of hospitals that were "dumping" patients by refusing to provide services to persons with emergency medical conditions who were uninsured or unable to pay for the services or by transferring such persons (generally to public hospitals or back home) before their emergency condition was stabilized. While the concern was narrow, Congress did not narrowly tailor the scope of persons protected by EMTALA. Congress did not limit EMTALA's scope to indigents or uninsureds; rather, Congress broadly defined the class of plaintiffs as any "individual" who presents himself or herself at a covered hospital's emergency department.

On the other hand, Congress narrowly defined the conduct required of hospitals when an individual requests examination or treatment at the emergency department. Under EMTALA, any individual who appears in the emergency department of a covered hospital and requests examination or treatment must be provided an "appropriate medical screening examination." In the event the hospital determines that the individual has an "emergency medical condition," the hospital is additionally required to provide further examination and treatment as may be necessary to stabilize the condition or to arrange for an appropriate transfer9 to another medical facility. EMTALA thus statutorily sets up two distinct types of "dumping" claims: (1) failure to conduct an appropriate medical screening examination to determine the existence of an emergency medical condition, and (2) failure to stabilize the emergency condition or to provide an appropriate transfer.

The courts have construed EMTALA as creating a federal cause of action separate and distinct from, and not duplicative of, state malpractice causes of action. However, medical malpractice claims and "dumping" claims often overlap, as illustrated by the following hypothetical posed in Power v. Arlington Hosp. Ass'n, 42 F.3d 851, 859 (4th Cir.1994)(quoting district court's decision, 800 F.Supp. 1384, 1387 n. 6 (E.D.Va.1992)):

EMTALA not only establishes specific requirements of conduct for covered hospitals, but also provides special rules for enforcement of those requirements. Among those rules, two are particularly relevant to our analysis in the present case: (1) the two-year peremptive statute of limitations in EMTALA that is not subject to equitable tolling, 42 U.S.C. § 1395dd(d)(2)(C); and (2) the preemption provision, which preserves state and local laws except to the extent such laws "directly conflict" with EMTALA, 42 U.S.C. § 1395dd(f).10 We discuss these EMTALA rules together.

Federal Preemption under EMTALA

Preemption issues are statutory construction issues. As Professor Tribe aptly articulates, "the question of whether federal law in fact preempts state action in any given case necessarily remains largely a matter of statutory construction" and cannot be reduced to any general formula. Laurence H. Tribe, American Constitutional Law § 6-25 (2d ed.1988).

The starting point is thus the statute itself. Indeed, EMTALA expressly addresses preemption, providing that "[t]he provisions of this section do not preempt any State or local law requirement of this section, except to the extent that the requirement directly conflicts with a requirement of this section." 42 U.S.C. § 1395dd(f). Under this type of preemption, dual regulation of the same conduct is permitted as long as there is no conflict. As noted above, the state malpractice act and federal EMTALA requirements often regulate the same conduct.

Since EMTALA only preempts state law to the extent that state law "directly conflicts" with federal law, the issue becomes whether imposing a mandatory pre-suit medical review panel requirement "directly conflicts" with EMTALA. A state law may be preempted because of a direct or actual conflict with federal law in one of two ways:

2 Ronald D. Rotunda and John E. Nowak, Treatise on Constitutional Law § 12.4 (3d ed.1999)(quoting Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984)). Hence, the test for determining whether a direct conflict exists is two-fold: "Such a [direct] conflict is found where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." (emphasis added). 2 Norman J. Singer, Sutherland Statutory Construction § 36.08.50 (5th ed.1993); Deberry v. Sherman Hosp. Ass'n, 741 F.Supp. 1302, 1307 (N.D.Ill.1990).

Defendant contends that it is theoretically possible for a plaintiff in a given case to comply with the Louisiana Medical Malpractice Act requirement of obtaining a decision from the medical review panel before filing suit and EMTALA's two-year limitation for filing suit. Defendant argues that when a plaintiff requests a medical review panel soon after the violation occurs and the one-year malpractice prescriptive period (rather than the three-year peremptive period) applies, compliance with both theoretically is possible. Defendant points out that the malpractice victim may file suit if the panel decision is not rendered within one year of the appointment of the panel chair. However, as defendant concedes, the period of time a medical review panel takes to render a decision is outside of the malpractice victim's control, and extensions of the time for the panel decision are common so that the timing of the decision frequently occurs outside the two-year period for filing an EMTALA claim.

Unlike the Louisiana Medical Malpractice Act which contains several provisions tolling prescription during the medical review panel proceeding, EMTALA contains a two-year limitation that is not subject to any tolling. Since the state tolling provisions cannot toll the running of EMTALA's two-year statute of limitations, the medical review panel requirement directly conflicts with EMTALA. Smith v. Richmond Memorial Hosp., 243 Va. 445, 416 S.E.2d 689, cert. denied, 506 U.S. 967, 113 S.Ct. 442, 121 L.Ed.2d 361 (1992). Because of this direct conflict, the panel requirement is preempted by federal law. Moreover, even if it is theoretically possible to comply with both the pre-suit medical review panel requirement and EMTALA's two-year limitation, engrafting such a procedural requirement onto an EMTALA claim would obstruct the accomplishment and execution of Congress' purpose and objectives.

Finally, "[a] state legislature or court cannot limit the rights that a plaintiff has in a federal claim that is pursued in a state court." 2 Norman J. Singer, Sutherland Statutory Construction § 36.08.50 (5th ed.1993). The court in Power v. Arlington Hosp. Ass'n, supra, explained:

42 F.3d 851, 866 (quoting Smith v. Richmond Memorial Hosp., 416 S.E.2d at 695).

Permitting plaintiffs' medical malpractice and EMTALA claims to be lumped together and then applying the mandatory pre-suit panel review procedure to the claims as a whole would subvert the plain meaning and intent of 42 U.S.C. § 1395dd. Griffith v. Mt. Carmel Medical Ctr., 842 F.Supp. 1359, 1364 (D.Kan.1994)(declining to engraft comparative fault law onto EMTALA claim). Unlike medical review panels which are designed to weed out spurious medical malpractice claims and to encourage pre-trial settlement, EMTALA's private cause of action is designed to penalize hospitals and thereby discourage "dumping." This difference in purpose buttresses our holding that the procedural requirement of the Louisiana Medical Malpractice Act directly conflicts with EMTALA and is thus preempted.11

Summary

In the present case, plaintiffs demanded damages under EMTALA based on defendant's alleged breach of its duty to properly stabilize or to appropriately transfer Mrs. Spradlin.12 If plaintiffs prove a violation of the requirements of EMTALA (which does not distinguish between intentional and unintentional conduct), plaintiffs will be entitled to recover the appropriate damages.

Plaintiffs also alleged in this action conduct by defendant's employees that fell below the professional standard of care and would constitute medical malpractice. This claim must be submitted first to a medical review panel before plaintiffs can file the claim in district court.

Requiring separate suits based on related claims growing out of the same transaction or occurrence appears to be judicially inefficient and may produce inconsistent results. However, the court in the EMTALA action (which must be filed within two years) may consider whether it is appropriate under the particular facts and circumstances to grant a motion to stay that action, while urging expeditious action in the medical review panel proceeding. In any event, plaintiffs are entitled to recover damages on both claims, whether in one or two trials, if the different requirements of proof are met, despite the fact that the law requires exhaustion of an administrative remedy in one action that is not applicable to the other.

Decree

For these reasons, the judgment of the court of appeal is affirmed.