Genova v. Banner Health, 734 F.3d 1095 (10th Cir. 2013)

In February 2014, the United States Supreme Court denied to review the Tenth Circuit decision to dismiss a doctor’s claim that he was terminated in violation of the Emergency Medical Treatment and Active Labor Act. [1]  The Emergency Medical Treatment and Active Labor Act (EMTALA) does not allow a participating hospital to penalize or take adverse action, (1) against a qualified medical person or a physician because the person or physician refused to authorize the transfer of an individual with an emergency medical condition that has not been stabilized, or (2) against any hospital employee because the employee reports a violation of a requirement of this action. [2]

Dr. Ron Genova was an emergency room physician at Banner Health and was terminated following a report by Dr. Genova to hospital administrators concerning overcrowded emergency room conditions. [3]  Dr. Genova alleged his termination was in retaliation to his complaint of overcrowded emergency room conditions being a direct violation of the EMTALA whistleblower protection. [4]  The lawsuit came before the federal district court and the complaint was dismissed, the Court of Appeals for the Tenth Circuit affirmed the dismissal and the Supreme Court of United States denied the writ of certiorari, affirming the lower court’s decision. [5]  The federal district court dismissed Dr. Genova’s claim fro two reasons: (1) the claim did not state an EMTALA violation and (2) Dr. Genova did not have relief for the tort and contract claims against his employer because he signed an employment agreement barring his claims. [6]

The court addressed the pressing issue hospitals face today with patients who are unable to pay for medical services and turn to emergency room services to treat routine and chronic conditions. [7]  Often, hospital emergency room numbers exceed capacities and patients are “dumped off” at nearby or rival hospitals before the patient can be stabilized. [8]  To combat this issue Congress legislated, (1) emergency rooms must examine all patients regardless of the patient’s ability to pay and (2) if the patient is suffering from an emergency condition, the patient must be stabilized prior to transferring the patient to another facility. [9]  To further enforce the legislative provisions, Congress used EMTALA to allow private persons to sue for damages suffered as a direct result of a hospital violation. [10]  The court concluded Dr. Genova did not correctly use the whistleblower protection because it applies to private citizens, and not hospital employees. [11]  

The court held that Dr. Genova’s claim was not about an EMTALA provision, but rather the inverse because he was concerned with emergency room overcrowding, not the emergency room violating the act by turning patients away. [12]  The court labeled Dr. Genova’s claim as ‘impending’ because Banner Health was reaching their tipping point concerning overcrowded emergency room conditions and had the potential for a possible EMTALA violation. [13]  The court concluded that Dr. Genova was barred from relief because he was not protected under the whistleblower provision and his claim was impending because no actual harm had occurred. [14]  Finally, the court stated if Congress intended to extend the whistleblower protection to hospital employees and potential impending violations of EMTALA these exceptions would have been clearly stated. [15].   

The court denied arguments developed in the amicus curiae brief by the American Academy of Emergency medicine because Dr. Genova did not raise the argument personally and the issue involved a federal jurisdictional issue. [16]  

This case has several implications for health professionals. Going forward, the court’s decision to deny Dr. Genova relief further implicates physicians from seeking judicial relief from hospital administrators pushing the limits on emergency room occupancy numbers and pushing provider past their comfort zone and medical capabilities. [17]  Dr. Genova argued that  EMTALA should include his claim because it helps to deter emergency rooms from the harm the statute is attempting to prevent. [18]  If the statute does not extend to protect physicians emergency rooms can continue to overcrowd with disastrous results.  [19]

 

References:

[1] Genova v. Banner Health, 734 F.3d 1095, 1095 (10th Cir. 2013).

[2] 42 U.S.C. § 1395dd(i).

[3] Genova v. Banner Health, 734 F.3d at 1096.

[4] Id. at 1097.

[5] Id. at 1095.

[6] Id.

[7] Id. at 1097

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id. at 1098.

[14] Id.

[15] Id.

[16] Id. at 1102.

[17] Pazanowski, Mary Anne, Supreme Court Won’t Consider Breadth of EMTALA’s Whistle-Blower Provisions, BLOOMBERG BNA (Feb. 24, 2014),

http://news.bna.com.ezproxy2.lib.depaul.edu/mdln/MDLNWB/split_display.adp?fedfid=42306682&vname=mcrnotallissues&jd=a0e7b2v8r1&split=0

[18] Id.

[19] Id.