Fifth Circuit on ED Facility Fees

[Vandalia]

For those interested in legal stuff (at least in retirement I think that is a better hobby than a retired neighbor who sits all day on the street sweeping up gravel and dirt with a hand brush and pan) "The Volokh Conspiracy" has "Short Circuit", a weekly summary of interesting court cases across the country.

Short Circuit for September 2nd

One is a federal appeal to the Fifth Circuit on whether Mississippi hospitals have a duty to close Emergency Department facility fees (referred to in the case as "surcharges") to patients before they are seen. The patient filed a federal class action lawsuit. The district court dismissed the case for "failure to state a claim", but the appellate court said, "not so fast, the district court needs to think about it more."

Fifth Circuit Opinion

There is a lot of legal detail in the opinion that is beyond me, and it focuses on Mississippi law, but that law is based on the Uniform Commercial Code.

What I find more interesting is her claim that as a "self-pay", if she had known about the "surcharge" she would have gone for "lower cost care." That in itself is an interesting proposition that carries across a lot of the current threads: Trivial cases, hospitals closing, etc., etc.

Particularly since her bill was for $17,752.47 and she complains of the "surcharge" of $2,201.75. In other words, "$15K is fine, but if I had known about that extra $2K I would have gone to an urgent care ..."

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[cyanide12345678]

I’m curious what the chief complaint was, a 15k bill to me means blood work, CT imaging, fluids and medications. Even if she went to an urgent care, chances are she may have been told to go to an ER.

 

[Vandalia]

Exactly, This does not seem to be the best case to make her point.

If the itemized costs were $200, and the facility fee was $2,000, she might have a point. In addition, as you mention, the fact that there were $15,000 in itemized costs suggests that this was not a "runny nose" as discussed in another thread.

This is particularly true since she was a "self pay." The fact that ED care is expensive should be universally known. If she had insurance, and knew the co-pay, and the insurer refused to cover the facility fee which she did not know existed, she may have had a point.

But under these facts ... a strange case. And if I were a lawyer handling a class action, I think I would look for a better lead case.

 

[NYEMMED]

Judge has not heard of EMTALA

Posting or discussing payment prior to the MSE exam is a EMTALA violation.

Judge might want to check federal laws prior to giving an opinion

 

[Vandalia]

Judge has not heard of EMTALA

Posting or discussing payment prior to the MSE exam is a EMTALA violation.

Judge might want to check federal laws prior to giving an opinion

Judges do not independently investigate cases.

It is significant that the hospital did not raise EMTALA as a defense.

If a party does not raise an argument, judges do not consider it. Judges are prohibited from acting as an advocate for either party.

 

[southerndoc]

I'm also surprised defense didn't raise EMTALA and inability to provide cost estimates prior to MSE. I'm guessing the plaintiff would've argued that the MSE could've occurred before the patient was registered thereby not charging her anything and giving her a right to seek cheaper care. However, CMS has ruled in many EMTALA cases that the MSE includes dedicated imaging, labs, etc. in certain situations (i.e., rule out subarachnoid, rule out appendicitis; these cases have had EMTALA violations because the ER did NOT perform imaging).

 

[Vandalia]

Upon reflection this was an appeal of a motion to dismiss for "failure to state a claim." So the dismissal and appeal could not address any facts and would deal solely with questions of law.

A consideration of EMTALA would likely involve specific facts, and would likely not be able to be raised at this point in the case.

But what do I know about law?

 

[thegenius]

For those interested in legal stuff (at least in retirement I think that is a better hobby than a retired neighbor who sits all day on the street sweeping up gravel and dirt with a hand brush and pan) "The Volokh Conspiracy" has "Short Circuit", a weekly summary of interesting court cases across the country.

Short Circuit for September 2nd

One is a federal appeal to the Fifth Circuit on whether Mississippi hospitals have a duty to close Emergency Department facility fees (referred to in the case as "surcharges") to patients before they are seen. The patient filed a federal class action lawsuit. The district court dismissed the case for "failure to state a claim", but the appellate court said, "not so fast, the district court needs to think about it more."

Fifth Circuit Opinion

There is a lot of legal detail in the opinion that is beyond me, and it focuses on Mississippi law, but that law is based on the Uniform Commercial Code.

What I find more interesting is her claim that as a "self-pay", if she had known about the "surcharge" she would have gone for "lower cost care." That in itself is an interesting proposition that carries across a lot of the current threads: Trivial cases, hospitals closing, etc., etc.

Particularly since her bill was for $17,752.47 and she complains of the "surcharge" of $2,201.75. In other words, "$15K is fine, but if I had known about that extra $2K I would have gone to an urgent care ..."

Can this be explained without using legal words? Who is suing who, over what, how much, etc.

 

[Vandalia]

My amateur attempt:

A woman was seen in the ED of a Biloxi, MS hospital. She had no insurance. Her bill was for $17,752.47. This included what the patient called a "surcharge" and everyone else calls a "facility fee" of $2,201.75. Given the information in the complaint this means it was coded as a Level 4 Visit. Since she was "self-pay" she received a 65% discount, meaning her total bill was $6,213.36 and her responsibility for the facility fee was $770.61. This amount was listed on her bill as "ER DEPT EXTENSIV." She actually "paid more than $1,500", although how much more is not mentioned.

She sued on two issues of contract law. First, she received "no warning" of the "surcharge"/"facility fee" and the bill she received did not clearly identify this fee. In her complaint,

According to the complaint, Henly was “shocked” when she found out she had been charged a surcharge on top of the amounts billed for specific treatments and services she had been provided. She avers she would have sought treatment elsewhere if she had been informed about the surcharge prior to receiving treatment.

She filed this as a class action "seeking a declaratory judgment that the hospital had a duty under Mississippi state law to disclose the surcharge to patients prior to treatment."

Now it really gets into the legal weeds. The district court dismissed her suit as a matter of law because it was "not a fact basic to the transaction" under Mississippi law. Then there were a lot more complicated legal factors. Basically, the district court said the hospital had no duty to disclose the "facility fee." Then more complicated legal stuff since the federal courts were basically guessing what Mississippi courts would say about Mississippi law.

The federal appellate court overturned the district court's decision. As I understand it, on a motion to dismiss, the court can only look at the "four corners" of the complaint. In other words, it cannot consider any other fact that is not contained in the complaint. If the court needs more factual information, then the complaint cannot be dismissed. It moves forward to discovery. As I understand the complicated legal reasoning, the appellate court said that it was too early to dismiss the case.

As I understand - and again you are listening to a person with no legal training - the key issue was whether the "surcharge" was a "material fact." In other words, would the patient/plaintiff have acted differently if she had known it. That is a questionable point as discussed above; but it also likely requires more evidence(discovery).

One issue brought up above is that EMTALA would prohibit disclosing such pricing information to a patient. However, asking around a bit, that may not be relevant to a state law contract suit. Or malpractice suit. To use a parallel example from the thread on EMTALA, it may be a violation to tell a young man with suspected torsion to drive to the university medical center rather than wait six hours for ambulance transport. However, the fact that it would be an EMTALA violation also would not necessarily be a defense to a malpractice suit if you didn't tell him to drive himself to the other hospital, he waited around for six hours, and he lost a testicle.

Basically, the fact that it may be an EMTALA violation is not necessarily a defense to a state-law civil suit. As I understand it, particularly under the current Supreme Court, federal law pre-empting state law is greatly disfavored. To do so, the federal law must either explicitly state that it is doing so, or must so comprehensively regulate a particular field (e.g., the practice of medicine) that it is simply impossible for state legislatoin to remain. I don't believe EMTALA does either.

The old saying "damned if you do, damned if you don't" comes to mind.

(EMTALA Trivia: If you are sued and suffer a loss due to another hospital/physicians violation of EMTALA, the statute permits you to sue that entity to recover your damages.)

(B)Financial loss to other medical facility
Any medical facility that suffers a financial loss as a direct result of a participating hospital’s violation of a requirement of this section may, in a civil action against the participating hospital, obtain those damages available for financial loss, under the law of the State in which the hospital is located, and such equitable relief as is appropriate.