On July 11, 2022, at the direction of the U.S. Department of Health and Human Services (HHS), the Centers for Medicare & Medicaid Services (CMS) issued a memorandum to State Survey Agency Directors reminding them of their continuing federal obligations under the Emergency Medical Treatment and Labor Act (EMTALA) when treating pregnant patients.

The guidance was issued in the wake of the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, following which many states have enacted legislation prohibiting or restricting abortion. In the memorandum, CMS clarifies for hospitals and healthcare providers that their professional and legal duties under EMTALA preempts any state law or mandate that is directly in conflict with EMTALA, even if doing so requires performing an abortion to medically stabilize the patient in a state where abortion is not allowed. In other words, the obligations under EMTALA trump the obligations under any state’s law when the two are in conflict with one another. Read together, hospitals and healthcare providers have a continuing professional and legal duty to provide all medically necessary stabilizing treatment to a pregnant woman presenting with an emergency medical condition (EMC) as defined under EMTALA, irrespective of whether that treatment violates the state’s abortion laws.

The determination of whether an EMC exists is made by the examining physician(s) or other qualified medical personnel at the hospital and is left to his/her clinical judgment. An EMC includes medical conditions with acute symptoms of sufficient severity that could place the patient’s health in serious jeopardy in the absence of immediate medical attention necessary to stabilize the patient. For a pregnant patient, this includes active labor, abdominal pain resulting from an ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders including preeclampsia. However, being pregnant is not in and of itself an EMC – the trigger is the pregnant patient’s need for medical evaluation/screening and stabilization.

Therefore, when a pregnant patient presents to an emergency room, and the examining provider’s clinical judgment determines that an EMC exists, EMTALA allows the hospital to perform an abortion, if it is within the hospital’s capabilities, and if it would be the appropriate stabilizing treatment that is medically necessary to reasonably assure that there will be no material deterioration of the EMC, or the patient, regardless of whether state law prohibits an abortion.

It is imperative that hospitals and healthcare providers recognize that their professional and legal duties under EMTALA are not usurped by state laws banning abortion, and that failure to comply with the federal law may result in civil monetary penalties by the Office of the Inspector General or exclusion from Medicare and State healthcare programs. CMS may also penalize a hospital by terminating its provider agreement. Additionally, failure to comply can result in civil suits filed by private citizens who are harmed by the hospital or healthcare provider’s failure to perform medically necessary stabilizing treatment to prevent the patient’s deterioration.

Thus, it is critical that hospitals and healthcare providers understand the protections afforded under EMTALA and consult legal counsel with any questions regarding their rights and obligations.

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Photo of Jessica M. Carroll Jessica M. Carroll

Partner, Employment Law, Healthcare and Litigation Departments

Ms. Carroll concentrates her practice in litigation, with an emphasis on representing healthcare providers at both the state and federal levels and within arbitration forums. Her experience encompasses serving as counsel for hospitals in medical staffing…

Partner, Employment Law, Healthcare and Litigation Departments

Ms. Carroll concentrates her practice in litigation, with an emphasis on representing healthcare providers at both the state and federal levels and within arbitration forums. Her experience encompasses serving as counsel for hospitals in medical staffing and peer review disciplinary matters arising out of issues related to quality care and patient safety. She also provides risk management guidance on issues at the intersection of various state laws and medical licensing regulations, including the potential impact of physician medical staff disciplinary actions triggering the obligation to report to the National Practitioner Data Bank (NPDB).

Ms. Carroll’s work includes the representation of hospitals, physicians, physician practices, and pharmaceutical companies in matters related to restrictive covenants, breach of contract, violations of due process and fundamental fairness, defamation and trade libel claims, as well as matters related to professional licensure and credentialing. She also handles anti-competitive claims alleging violations of New Jersey’s Anti-Trust Act, the Sherman Anti-Trust Act, and the Lanham Act, in addition to employment related claims, including violations of the New Jersey Law Against Discrimination (NJLAD) and the Conscientious Employee Protection Act (CEPA).

Ms. Carroll counsels her clients on the most effective and economical legal strategies by evaluating liability and exposure against alleged damages. She handles a broad range of day-to-day tasks beginning at the inception of a matter, including orders to show cause, serving and responding to discovery, ensuring compliance with court-ordered deadlines, appearing and defending depositions, and retaining experts, through resolution by way of settlement, motion practice, or alternative dispute resolution.

Contact information:

jcarroll@greenbaumlaw.com | 973.577.1910 | vCard  | LinkedIn

For more information visit the Greenbaum, Rowe, Smith & Davis LLP website.