OF SUMMARY JUDGMENT
B. Modifying EMTLA and CMS Guidelines
Making these changes requires two simple steps. First, EMTALA must be modified to require clearly written protocols and to create a rebuttable presumption of compliance if a hospital produces substantial evidence that it has conformed with its written screening and treatment protocols. It should be noted that this presumption works both ways—failure to comply with the hospital’s written protocol will create a presumption that an EMTALA violation has occurred.
This modification creates a default choice to follow the written protocol, but then allows for individual physician choice in deviating from this default choice if it is reasonable to do so. This exception is rooted in the libertarian paternalism theory developed by Professors Cass Sunstein and Richard Thaler.126 It is paternalistic as it provides a default choice designed to positively influence a physician’s choice to follow the hospital’s written protocols. It is also libertarian as it gives room for physician choice not to follow the written protocol if it is reasonable to do so. This flexibility allows for the currently high level of scientific uncertainty that exists when it comes to many medical conditions, particularly in the realm of the treatment of outliers. As the practice of evidence-based medicine (population-based medicine, or the treatment of “norm”) grows through comparative effectiveness research, and later transitions to personalized medicine based on the treatment of individuals according to their unique genetic, microbiome, and epigenetic profiles; this currently high degree of scientific uncertainly will steadily diminish over the next several
126Cass Sunstein & Richard Thaler, Libertarian Paternalism Is Not An Oxymoron 70 U.CHI.L.REV. 1159 (2003), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=405940 (The SSRN Abstract explains that "[t]he idea of libertarian paternalism might seem to be an oxymoron, but it is both possible and legitimate for private and public institutions to affect behavior while also respecting freedom of choice. Often people's preferences are ill-formed, and their choices will inevitably be influenced by default rules, framing effects, and starting points.
In these circumstances, a form of paternalism cannot be avoided. Equipped with an understanding of behavioral findings of bounded rationality and bounded self-control, libertarian paternalists should attempt to steer people's choices in welfare-promoting directions without eliminating freedom of choice.").
decades, reducing the use of this exception.
Second, CMS’s Conditions of Participation: Emergency Services127 must be modified to include regulations that require that “[t]he services provided or arranged by the facility must . . . meet professional standards of care. . . .” 128 As part of this modification, the Interpretive Guidelines for the Conditions of Participation: Emergency Services should read that “‘[p]rofessional standards of quality’ means services that are provided according to accepted standards of clinical practice.”129 A statement should be provided that explains that
“accepted standards of clinical practice” can include the use of standards published by a short list of sources, including professional organizations, licensing boards, clinical literature, current professional journals, or the clinical practice guidelines published by the Agency of Health Care Policy and Research.130 Importantly, the use of
“customary care” should not be included on this short list of accepted standards of clinical practice.131
127CTRS FOR MEDICARE &MEDICAID SERVS., State Operations Manual, Appendix V – Interpretive Guidelines – Responsibilities of Medicare Participating Hospitals in Emergency Cases (as revised on July 16, 2010), available at
http://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_v_emerg.pdf.
128This language is taken from the CTRS. FOR MEDICARE &MEDICAID SERVS., CMS Manual System Pub. No. 100-07, State Operations Provider Certification, Revisions to Appendix PP, State Operations Manual (SOM): Guidance to Surveyors for Long Term Care Facilities (LTC) for Minimum Data Set (MDS) 3.0 Implementation October 1, 2010 (Jan. 7, 2011) (as revised on July 1, 2011) [hereinafter “CMS Survey Guidance”].
129Id. at 140.
130Id.
131For example, in the context of the care of pressure ulcers in long term care facilities, CMS has identified several organizations that have created clinical practice guidelines that CMS finds acceptable: “There are many recognized clinical resources regarding the prevention and management of pressure ulcers (including wound care, and complications such as infections and pain).Some of these resources include: [1] The Clinical Practice Guidelines from the Agency for Healthcare Research and Quality (AHRQ) www.ahrq.gov (Guideline No. 15: Treatment of Pressure Ulcers and Guideline No. 3: Pressure Ulcers in Adults: Prediction and Prevention) (AHRQ was previously known as the Agency for Health Care Policy and Research [AHCPR]);
[2] The National Pressure Ulcer Advisory Panel (NPUAP) www.npuap.org; [3] The American Medical Directors Association (AMDA) www.amda.com (Clinical Practice Guidelines: Pressure Ulcers, 1996 and Pressure Ulcer Therapy Companion, 1999); [4] The Quality Improvement Organizations, Medicare Quality Improvement Community Initiatives site at www.medqic.org;
[5] The Wound, Ostomy, and Continence Nurses Society (WOCN) www.wocn.org; and; [6] The American Geriatrics Society guideline “The Management of Persistent Pain in Older Persons,”
www.healthinaging.org.” Id. at 198.
The result of these changes is that the courts applying EMTALA will be charged with determining if the hospital complied with its written emergency treatment protocols when treating the plaintiff, much as before. However, this reformulation requiring written protocols allows the courts to make a concrete, more easily ascertainable and more substantively accurate assessment of whether the care provided to a particular patient conforms with hospital screening and treatment protocols for all patients. The courts will continue to be concerned solely with equality of care, not quality of care.
This solution avoids the creation of a federal medical malpractice cause of action, leaving medical malpractice issues to the state courts.
Separately, CMS will be tasked with ensuring that these written protocols further quality of care by being based on best practices using clinical practice guidelines which is consistent with its mission. This places the obligation to ensure quality of care with CMS which has both the expertise and the resources to do so. By requiring physicians to follow evidence-based protocols, this two-step solution decreases the likelihood that physician choices will be influenced by bias or stereotyping.
1. Harmonizing the Customary Care Model of Medical Practice with Evidence-Based Treatment Choices
This solution also works across systems to deal with the problem of the tort, licensure and hospital peer review systems’ reliance on customary care as the exclusive proxy for quality. This fixes this disconnect by relying on a preexisting pathway for CMS’s evidence-based protocols to become customary practice for hospitals. This path starts with the requirement that all hospitals comply with the CMS’s Conditions of Participation: Emergency Services in order to be accredited to participate in reimbursement for emergency care by Medicare.132 Because hospital emergency rooms go through the accreditation process approximately every three years, this article’s suggested
132See Joint Commission, supra note 56. CMS has delegated the accreditation process for participation in Medicare to a private, non-profit group called The Joint Commission. In addition, most states have delegated the accreditation process for participation in Medicaid to the Joint Commission. The Joint Commission promulgates accreditation standards and makes inspection visits every three years to ensure that all Medicare and Medicaid regulations are being followed. Id.
changes to CMS’s Conditions of Participation: Emergency Services will quickly become part of every hospital’s customs. A good example of how this works is the case of Carter v. Hucks-Folliss.133 In Carter, CMS’s Conditions of Participation used for Medicare accreditation were admissible in a medical malpractice action as evidence of custom.134 Carter sent the message to hospitals that failure to follow CMS standards could lead to liability.
Thus, following CMS standards leads to the adoption of the evidence-based protocols, which will ultimately become customary practice for hospitals generally. As the number of physicians who are giving up private practice and working directly for hospitals is steadily increasing, and physicians are highly influenced by the social norms of the institution in which they serve, the customs of the physician’s in hospitals will likely become the customs for most physicians practicing in the U.S. Thus, over the long run, evidence-based practice will become customary practice and physicians will no longer be forced to forgo an evidence-based treatment choice to avoid liability or loss of licensure.