1 Dumping has been defined as private hospitals’ refusal to care for patients who do not qualify for Medicare or Medicaid and who cannot afford to pay the hospital bills themselves. It has also been defined as the denial of emergency medical services or the premature transfer of one patient from one hospital to another because that person cannot guarantee payment. Hospital administrators euphemistically have called this practice “demarketing of services” and “transfers of patients for economic reasons.” Friedman, The ‘Dumping’ Dilemma: The Poor Are Always With Some of Us, HOSP., Sept. 1, 1982 at 51. This practice also has been referred to as “economic triage.“.

2 For the purposes of this paper, the medically indigent are defined as those persons who lack adequate health insurance. This group includes poor people who have no public insurance, unemployed or self-employed individuals who are uninsured, employees of businesses which “do not provide health care benefits, elderly people eligible for Medicare but requiring extended-care facilities and services, and patients in high-risk medical categories who are uninsurable.” Nutter, , Medical Indigency and the Public Health Care Crisis: The Need for a Definitive Solution, 316 NEW ENG. J. MED. 1156 (1987)CrossRefGoogle Scholar. Individuals who are underinsured and unable to make up the difference in their insurance coverage and the actual cost of their care also are included.

3 Patient dumping also can occur before a patient actually reaches a hospital emergency department through the actions of ambulance attendants, doctors at urgent care centers, or air transport services. This paper focuses solely on patient dumping in the hospital emergency department because case law and federal statutory law primarily imposes hospital liability for patient dumping in this context. For a further discussion of the case and federal statutory law which deals with this issue, see infra notes 22-152 and accompanying text.

4 Sohl, & Bassford, , Codes of Medical Ethics: Traditional Foundations and Contemporary Practice, 22 Soc. Sci. & MED. 1175 (1986)CrossRefGoogle Scholar; Gillon, , Medical Oaths, Declarations, and Codes, 290 BRIT. MED. J. 1194 (1985)CrossRefGoogle Scholar.

5 Prominent physicians have made suggestions as to how conscientious physicians can preserve the integrity of their practice. See, e.g., Relman, , Practicing Medicine in the New Business Climate, 316 NEW ENG. J. MED. 1150 (1987)CrossRefGoogle Scholar.

6 Reinhardt, , Future Trends in the Economics of Medical Practice and Care, 56 AM. J. OF CARDIOLOGY 50(C), 54(C) (1985)CrossRefGoogle Scholar.

7 Perkins, , The Effects of Health Care Cost Containment on the Poor: An Overview, 19 CLEARING-HOUSE REV. 831 (1985)Google Scholar.

8 Reimbursement on a reasonable cost basis is also commonly referred to as “fee for service.”.

9 The term diagnostic related groups (DRG) refers to a prospective payment system for hospital reimbursement under Medicare. Under 42 U.S.C.A. Services develops categories of diagnoses under which hospitals are reimbursed prospectively based on the primary diagnoses of past patients.

10 Perkins, supra note 7, at 839 (citing 42 U.S.C. § 1396(a)(13)(A) (1981) and 42 C.F.R. §§ II447.252-.256 (1983)).

11 Under PPOs, employees are steered to hospitals and/or physicians who have agreed to provide services to members of the PPO at a discount. Reinhardt notes that PPOs typically contract with providers who have agreed to “exercise economy in the prescription of medical procedures,” Reinhardt, supra note 6, at 55(C). The private sector also can contract with HMOs. Under this arrangement, HMOs agree to deliver comprehensive health care services in exchange for a flat annual fee per patient, or capitation fee. See Berensen, , Capitation and Conflict of Interest 5 HEALTH AFF. 141, 142 (Spring 1986)CrossRefGoogle Scholar; Luft, , HMOs: Friends or Foes? 3 Bus. & HEALTH 5 (Dec. 1985)Google ScholarPubMed.

12 The Health Insurance Association of America (HIAA) perceives cost shifting to be the process in which insurers that pay hospitals through methods other than the charges, such as Medicare, Medicaid and some Blue Cross plans, pay less than the cost of treating their beneficiaries. As a result of this process, charge paying patients, or their insurers, pay more. See Ginsburg, & Sloan, , Hospital Cost Shifting, 310 NEW ENG. J. MED. 893 (1984)CrossRefGoogle Scholar.

13 Id. at 894 (suggesting that “hospitals’ provision of care to those who are unable to pay their bills is generally recognized as a community responsibility” and that “cost payers usually contribute to the cost of such uncompensated care only to the extent that their beneficiaries do not pay the part of their bill they are obligated to cost-share“).

14 Relman defines the medical industrial complex as the “large and growing network of private corporations engaged in the business of supplying heretofore provided by nonprofit institutions or individual practitioners.” Relman, , The New Medical-Industrial Complex, 303 NEW ENG. J. MED. 963, 963 (1980)CrossRefGoogle Scholar.

15 Reed, , Cawley, & Anderson, , The Effect of a Public Hospital's Transfer Policy on Patient Care, 315 NEW ENG. J. MED. 1428 (1986)CrossRefGoogle Scholar (hereinafter Parkland Study).

16 While it is comforting to discuss patient dumping as if it were a new phenomenon resulting from changes in the delivery of health care, this practice has been plaguing the country for many years. One of the first studies to document patient dumping was done by Roemer and Mera. Roemer, & Mera, , Patient Dumping and Other Voluntary Agency Contributions to Public Agency Problems, 11 MED. CARE 30 (1973)CrossRefGoogle Scholar. More recent studies in the medical literature indicate that the problem may have gotten worse, though there is little conclusive data to support this intuitive—and arguably correct—conclusion. See, e.g., Himmelstein, , Woolhandler, , Harnly, , Bader, , Silber, , Bucher, & Jones, , Patient Transfers: Medical Practice as Social Triage, 74 AM. J. PUB. HEALTH 494 (1984)CrossRefGoogle Scholar[hereinafter Himmelstein Study]; Schiff, , Ansell, , Schlosser, , Idris, , Morrison, & Whitman, , Transfers to a Public Hospital: A Prospective Study of 467 Patients, 314 NEW ENG. J. MED. 552 (1986)CrossRefGoogle Scholar[hereinafter Schiff Study]; see also Kellermann, & Hackman, , Emergency Department Patient ‘Dumping': An Analysis of Interhospital Transfers to the Regional Medical Center at Memphis, Tennessee, 78 AM. J. PUB. HEALTH, 1287 (1988)CrossRefGoogle Scholar; Ansell, & Schiff, , Patient Dumping; Status, Implications, and Policy Recommendations, 257 J.A.M.A. 1500 (1987)CrossRefGoogle Scholar.

17 The discussion of liability for patient dumping is limited to the primary liability of hospitals. While individual physicians could be liable for some patient dumping under tort theories, with employer-hospital liability based on respondeat superior, the more effective and direct approach to the problem of patient dumping is through the imposition of primary liability on the hospital.

18 Schiff Study, supra note 16, at 552. The authors state that the number of medical and surgical patients who were transferred to Cook County Hospital has been rising steadily from 1295 in 1980 to 2906 in 1981, 4368 in 1982, and 6769 in 1983. These are compelling numbers but the authors do not say where or how the data for 1980 through most of 1983 was collected. The data for their published study was collected only between November 20, 1983 and January 1, 1984 Id.

19 See id; Himmelstein Study, supra note 16, at 496. Both of these prospective studies on inappropriate transfers from private to public hospitals indicate that patients were being dumped to the public hospitals for economic reasons. Neither study assesses whether the current focus on cost cutting significantly increased the number of inappropriate transfers. Both studies, however, seem to make this assumption. Additionally, both studies assumed that an increase in the number of inappropriate transfers has adversely effected public hospital deficits. The Himmelstein Study speculates that the dumping of unprofitable patients may be responsible for “at least part of the deficits which have plagued public hospitals and represents a de facto public subsidy to private hospitals.” Himmelstein Study, supra note 16, at 496. The Schiff Study also posits that private hospitals are shifting the non-reimbursable costs which inappropriate transfers generate to “financially strapped public hospital(s).” Schiff Study, supra note 16, at 556.

20 In suggesting that these studies do not conclusively show a direct correlation between increased numbers of patient transfers and current economic trends, it is not intended to detract from the value and suggestiveness of this work. Given the complicated and fluctuating nature of current health care financing, we question whether such a conclusive study could actually be done.

21 Roemer & Mera, supra note 16, at 30.

22 Id.

23 Although the study was limited to the provision of outpatient services, the definition of these services included visits to the emergency room. Id. at 33.

24 To determine the dimensions of patient dumping with respect to ambulatory care, the authors derived and analyzed hospital outpatient data for 1969 from 33 counties nationwide which contained large urban public hospitals for the poor (UPHP). “The UPHPs included all state and local (but not federal) government short-term general hospitals; long-term general special (mental or tuberculosis) public hospitals were excluded. The voluntary general hospitals included those specialized in children, cancer or the like (but not mental or tuberculosis). Proprietary hospitals, which seldom offer outpatient services, were excluded in order to show the non-governmental sector in its best light.” Id. The study also showed that the lowest ratio among the 33 counties in the public hospital series (7.83 per admission) was higher than the highest ratio (6.30 visits per admission) in the voluntary hospital series. Id. at 35.

25 RESTATEMENT (SECOND) OF TORTS, § 314 (1965).

26 229 Ala. 398, 157 So. 224 (1934).

27 Id. at 400, 157 So. at 226.

28 The demise of the doctrine of charitable immunity as applied to hospitals was one factor which made such suits possible.

29 54 Del. 15, 174 A.2d 135 (1961).

30 The hospital received Hill-Burton funds from the federal program. The Hill-Burton, which is codified at 42 U.S.C.A. § 291 (West 1983), allows states to obtain federal financial assistance to construct and modernize “public or other non-profit community hospitals and other medical facilities as may be necessary ….” Id.

31 Manlove, 54 Del. at 25, 174 A.2d at 140 (this quote only appears in its entirety in the unofficial reporter).

32 RESTATEMENT OF TORTS § 323 (1934).

33 Manlove, 54 Del. at 20, 174 A.2d at 140 (this quote only appears in its entirety in the unofficial reporter).

34 RESTATEMENT (SECOND) OF TORTS, §§ 323(b) & 325 (1965).

35 Manlove, 54 Del. at 23, 174 A.2d at 139.

36 See RESTATEMENT (SECOND) OF TORTS, § 325, comment b, illus. 2 (1965).

37 Although dated, the general fact patterns developed in Powers, , Hospital Emergency Service and the Open Door, 66 MICH. L. REV. 1455, 1464 (1968)CrossRefGoogle Scholar, will be used because these patterns still provide a useful and comprehensive study of this area of the law.

38 11 A.D.2d 132, 202 N.Y.S.2d 436 (1960).

39 447 S.W.2d 558 (Mo. 1969).

40 112 Ariz. 104, 537 P.2d 1329 (1975).

41 O'Neill, 11 A.D.2d at 132, 202 N.Y.S.2d at 436.

42 Id. at 133, 202 N.Y.S.2d at 438.

43 Id. at 134, 202 N.Y.S.2d at 438.

44 Id. at 132, 202 N.Y.S.2d at 436.

45 Id. at 136, 202 N.Y.S.2d at 440.

46 Id. at 135, 202 N.Y.S.2d at 440.

47 Wilmington Gen. Hosp. v. Manlove, 54 Del. 15, 24, 174 A.2d 135, 140 (1961)(citing O'Neill, 11 A.D.2d 132, 202 N.Y.S.2d 436 (1960)).

48 Stanturf, 447 S.W.2d 558, 559 (Mo. 1969).

49 Sipes, the named defendant, was the administrator of the hospital at the time the action took place. Id.

50 Id.

51 Id. at 560.

52 Id. at 558.

53 Id. at 562 (citations ommitted).

54 The facts do not reveal whether Stanturf physically presented himself at the door of the emergency room but this seems of small consequence given the measures which were exerted on his behalf. The hospital was aware that he was seeking treatment for his frozen feet. The facts also do not reveal whether Wright Memorial Hospital operated an emergency room for the public. If it did not, and efforts instead were being made to get Stanturf admitted directly into a service, this may have been one reason why the court would not adopt Manlove.

55 Manlove, 54 Del. at 25, 174 A.2d at 140.

56 Stanturf, 447 S.W.2d at 560.

57 Creation of this duty would assume that the facts of the case were within the rule announced by the court in Manlove. The court, however, declined to make this finding in its holding. Manlove, 54 Del. at 23, 174 A.2d at 139.

58 It was this theory under which the lower court in Manlove allowed the plaintiff to recover. But the state Supreme Court, while upholding the judgment of the lower court, disavowed the public funds theory in favor of broader tort based concepts of duty. See Manlove, 54 Del. at 18-19, 174 A.2d. at 137.

59 112 Ariz. 104, 537 P.2d 1329 (1975).

60 Id. at 105, 537 P.2d at 1330.

61 Guerrero v. Copper Queen Hospital, 22 Ariz. App. 611, 613, 529 P.2d 1205, 1206 (1974), vacated, 22 Ariz. 104, 537 P.2d 1329 (1975).

62 Id. at 612, 537 P.2d at 1206 (citing Manlove, 54 Del. at 25, 174 A.2d at 140).

63 Id. at 106, 537 P.2d at 1331 (emphasis added).

64 141 Ariz. 597, 688 P.2d 605 (1984)(en banc).

65 This hospital was operated by the defendant-corporation.

66 Thompson, 141 Ariz, at 599-600, 688 P.2d at 607-08.

67 Id. at 602-03, 688 P.2d at 610-11.

68 Id. at 604, 688 P.2d at 612. This court distinguished Harper v. Baptist Medical Center Princeton, 341 So. 2d 133 (Ala. 1976), on the grounds that under Birmingham Baptist Hospital v. Crews, 229 Ala. 398, 157 So. 224 (1934), a private hospital has no duty to provide care to a person with an emergency medical condition. Thompson, 141 Ariz, at 602, 603 n.3, 688 P.2d at 610, 611 n.3.

69 171 So. 2d 202 (Fla. 1965).

70 341 So. 2d 133 (Ala. 1976).

71 Le Jeune, 171 So. 2d at 203.

72 Id. On appeal, the award of punitive damages to the mother was overturned, there having been no finding of compensatory damages in her favor. Id. at 204.

73 229 Ala. 398, 157 So. 224 (1934).

74 Le Jeune, 171 So. 2d at 203.

75 Id.

76 Id. at 204 (citing UNIV. PITTSBURGH HEALTH LAW CENTER, HOSPITAL LAW MANUAL § 3-2 (1960), Meiselman v. Crown Heights Hosp., 285 N.Y. 389, 34 N.E.2d 367 (1941)). Use of the term “forseeable” suggests that the court may have been considering some kind of contractual agreement between the patient and the hospital, although subsequent footnotes analyze the issue in the context of a tort. The theory that patients and providers could contract for liability is relatively new and confined at this point to academic discussions. See generally Medical Malpractice: Can the Private Sector Find Relief?, 49 LAW & CONTEMP. PROBS. (Spring 1986)Google Scholar.

77 Le Jeune, 171 So. 2d at 203 n.6.

78 While arguably any person who needs emergency medical treatment could be called helpless, this liability theory is not useful in establishing a general affirmative duty on the part of the hospital because it applies only to those actors who have rendered services in the absence of any duty to do so. RESTATEMENT OF TORTS § 324 (1934).

79 Le Jeune, 171 So. 2d at 203 n. 5.

80 341 So. 2d 133 (Ala. 1976).

81 Id. at 134.

82 Id. at 134 (citing Crews, 229 Ala. 398, 157 So. 224 (1961)).

83 Id.

84 See RESTATEMENT (SECOND) OF TORTS, § 323 (1965).

85 Harper, 341 So. 2d at 135.

86 Another category suggested by Powers, supra note 36, at 1468, is that of the hospital which exercises some control and gives some aid to the applicant, then gives him reason to believe the emergency has passed when in fact his condition is the same or worse because of the treatment. This principle is not discussed because when these facts exist, recovery from the hospital for injuries resulting from discharge can be based on traditional tort doctrine; liability will attach when the intervenor puts the potential beneficiary in worse condition than the potential beneficiary was in before the intervention. RESTATEMENT (SECOND) TORTS § 323(a); see, e.g., Burgeois v. Dade County, 99 So. 2d 575 (Fla. 1957).

87 245 Miss. 185, 146 So. 2d 882 (1962).

88 Id.. at 193-95, 146 So. 2d at 885-86.

89 Id. at 198, 146 So. 2d at 888.

90 Id. at 198, 146 So. 2d at 887 (citing Wilmington Gen. Hosp. v. Manlove, 54 Del. 15, 23, 174 A.2d 135, 139 (1961); O'Neil v. Montefiore Hosp., 11 A.D.2d 132, 135, 202 N.Y.S.2d 436, 449 (1960)).

91 141 Ariz. 597, 688 P.2d 605 (1984)(en banc).

92 Id. at 603, 688 P.2d at 611.

93 See infra text accompanying notes 101-02.

94 171 So. 2d 202 (Fla. 1965).

95 341 So. 2d 133 (Ala. 1976).

96 It should be noted that the common law does not address the more subtle forms of dumping. See supra note 3.

97 42 U.S.C.A. § 1395dd (West Supp. 1988).

98 Pub. L. No. 99-272, § 9121, 1986 U.S. CODE CONG. & ADMIN. NEWS (100 Stat.) 82, 164-67 (codified as amended at 42 U.S.C.A. § 1395dd [hereinafter COBRA].

99 The legislation proposed by Representative Pete Stark was in response to the Himmelstein Study done at Highland General Hospital in Alameda County, California, supra note 15, and to a series of articles on patient dumping written by Peter Aleshire for the Oakland Tribune. See, e.g., Aleshire, Hospitals’ Dumping ofPatients Increases, Oakland Tribune, Nov. 10, 1985, at A-1; Telephone interview with Gwen Gampal, staffmember to Congressman Stark (Nov. 17, 1986). In the House of Representatives, the legislation went through the Ways and Means Health Subcommittee of the Finance Committee. See H.R. No. 241, 99th Cong., 2d Sess. 1, 27, reprinted in 1986 U.S. CODE & ADMIN. NEWS 579, 605. In the Senate, the provisions went through the Labor and Human Resources Minority Committee, chaired by Senator Edward Kennedy. See S.R. No. 209, 99th Cong., 2d Sess. 445, reprinted in 1986 U.S. CODE & ADMIN. NEWS 404. No hearings were held on the anti-dumping provisions and there was little opposition to the legislation. What opposition there was centered mainly on the proposed criminal penalties for violation of the statute, which were eventually dropped. Telephone interview with Gwen Gampal, supra. For a general discussion of the legislation's weaknesses, see Note, Preventing Patient Dumping: Sharpening the Cobra's Fangs, 61 N.Y.U. L. REV. 1186 (1986)Google Scholar.

100 Movement of patients who have been declared dead, or patients who leave the facility without permission, are not considered transfers. See 42 U.S.C.A. § 1395dd(e)(5). Participating hospitals are those which have Medicare provider agreements with the federal government under § 1867 of the Social Security Act. See 42 U.S.C.A., at §§ 1395dd(a)(e)(5).

101 42 U.S.C.A. § 1395dd(a).

102 Id., 42 U.S.C.A. § 1395dd(e)(1).

103 42 U.S.C.A. § 1395dd(e)(2).

104 The difference between the House and the Senate versions is illustrated in the following example. It is not unusual for a woman to have some vaginal bleeding during her third trimester of pregnancy. Although delivery may not be imminent and there may be adequate time to effect a transfer, the life of both the mother and the child are jeopardized if the cause of the bleeding is not immediately determined. If the bleeding is the result of placenta previa or abruption of the placenta, a potentially viable infant may suddenly lose its placental nourishment and die. Only constant observation of mother and child, with the availability of immediate caesarean section, could prevent such serious and life threatening complications (only the House version required observations of this type).

105 The one exception to the hospital's duty to stabilize is if the hospital lacks the resources to stabilize the patient. In that case, transfer can be effected only if there has been a determination that the risk of harm in transfer is less than that of staying at the hospital. 42 U.S.C.A. § 1395dd (c)(1)(A)(ii).

106 42 U.S.C.A. § 1395dd(e)(4)(A).

107 42 U.S.C.A. § 1395dd(b)(2).

108 S. 1730, 99th Cong., 2d Sess. (1986). As an example of the different outcome that might have arisen under the Senate version of this provision, consider the case of an individual who suffers a ruptured spleen as the result of an automobile accident. When the patient arrives at Hospital A, the patient has normal vital signs and the blood loss from the ruptured spleen has not yet caused signs of shock. Hospital A can easily anticipate that the patient's condition will deteriorate materially as more blood continues to hemorrhage from the spleen. Given the threat of such deterioration, Hospital A could not transfer the patient to Hospital B under this section of the anti-dumping legislation. Under the Senate version, however, Hospital A could have argued that it had anticipated only a short transfer time and prompt repair of the patient's spleen. Thus, Hospital A could have avoided violating the statute, as it did not forsee “death or serious impairment as a direct result of the transfer.” Id.

109 Am. College Emerg. Phys., Guidelines for Transfer of Patients, 14 ANNALS EMERC. MED. 1221 (1985)CrossRefGoogle Scholar.

110 COBRA, supra note 98, at § 9121 (b)(c)(A)(ii).

111 An argument could be made that § 9121 (b)(c)(2), which describes the requirements for appropriate transfers, applies to the transfer of stable, as well as unstable, patients. COBRA, supra note 85, at § 9121 (b)(c)(2). While this is a desirable reading of the statute, the section on “Appropriate Transfer” is a subheading of “Restricting Transfers Until Patient Stabilized.” The subordination of “Appropriate Transfer” to “Restricting Transfers Until Patient Stabilized” and the legislative history suggest that the “Appropriate Transfer” requirements only apply to the transfer of unstable patients. Knowledgeable individuals question whether a distinction between stable and unstable emergency patients can be made at all. For example, Arthur Relman, editor of the New England Journal of Medicine, has written, “ ‘[s]tabilization, of emergency cases is a notion used by hospital managers to justify transfers for economic reasons, but it is an elusive and dangerous concept.” Relman, , Economic Considerations in Emergency Care, 312 NEW ENG. J. MED. 372, 373 (1985)CrossRefGoogle Scholar.

112 ACEP suggests that only a physician or “other responsible persons” at the receiving hospital be entrusted with the authority to accept transfer of unstable patients. ACEP defines “other responsible persons” as “those designated by the hospital and given authority to accept the transfer of the patient.” See Am. College Emerg. Phys., supra note 109, at 1222.

113 Unless otherwise noted, further references to the Secretary will be to the Secretary of the Health and Human Services Department.

114 Since the patient is being transferred in an unstable condition, the statute clearly does not mean that the hospital has actually stabilized the patient. The only logical reading is that if an unstable patient has been transferred pursuant to this section, no claim that the transfer was improper can later be brought against the transferring hospital under the statute.

115 H.R. REP. NO. 241, 99th Cong., 2d Sess. 3, reprinted in 1986 U.S. CODE CONG. & ADMIN. NEWS 732, 733.

116 Id. at 735.

117 The statute of limitations is two years from the date the violation occurred. COBRA, supra note 98, at § 9121 (d)(3)(c).

118 See 1986 U.S. CODE CONG. & ADMIN. NEWS at 735.

119 Criminal provisions for such inappropriate transfers actually were enacted by the Texas state legislature in 1983. TEX. REV. CIV. STAT. ANN. art. 4438a (Vernon Supp. 1986).

120 This penalty is applicable to violations occurring on or after December 22, 1987. For violations occurring between August 1, 1986 (the effective date of the original legislation) and December 21, 1987, the maximum civil monetary penalty for each violation is $25,000. 42 U.S.C.A. § 1395dd (West Supp. 1988). A responsible physician is defined, for the purposes of the statute, as one who “(A) is employed by, or under contract with, the participating hospital and (B) acting as such an employee or under such a contract, has professional responsibility for the provision of examinations or treatments for the individual, or transfers of the individual with respect to which the violation occurred.” See COBRA, supra note 85, at § 9121 (b)(d)(2).

121 COBRA, supra note 98, at § 9121.

122 Informed consent to patient transfers is the most obvious response to this problem. See Kellermann, & Ackerman, , Interhospital Patient Transfer: The Case for Informed Consent, 319 NEW ENG. J. MED. 643 (1988)CrossRefGoogle Scholar.

123 The cost of medical care at the public hospital rarely is free. Free care is provided only to those individuals who qualify for state and local charity programs. At Parkland General Hospital in Dallas, Texas, for example, “[o]ver 60 percent of the patients transferred … from suburban community hospitals were uninsured, yet ineligible for charity care.” Parkland study, supra note 15, at 1431.

124 Although damages may be limited to those under state law, the legislation creates a federal cause of action. Bryant v. Riddle Memorial Hospital, No. 88-1164 (E.D. Penn. July 1, 1988), 1988 U.S. Dist. Lexis 6467.

125 42 U.S.C.A. § 1320a-7a (West Supp. 1988).

126 See COBRA, supra note 98, at § 9121(b)(d)(2).

127 Id. at § 9122(b)(d)(1)(a); 42 U.S.C.A. § 1395 cc(b) (West Supp. 1988).

128 42 U.S.C.A. § 1395dd (West Supp. 1988).

129 Since civil monetary penalties only can be levied against hospitals and physicians who knowingly violate the anti-dumping legislation, familiarity with an adherence to the provisions of the legislation will prevent the imposition of such severe sanctions. This suggests that responsible physicians and hospital administrators should work together to make sure that the federal law is followed. Should physicians nonetheless find themselves in conflict with hospital administrators regarding the appropriateness of a patient transfer, the physician would be well-advised to document his or her dilemma. Later, such documentation might be evidence that the individual physician was not a willing participant in an illegal transfer.

130 S. 12, 99th Cong., 1st Sess. (1986).

131 See 53 Fed. Reg. 22,513 (1988); Equal Access to Health Care: Patient Dumping, H.R. REP. No. 531, 100th Cong., 2d Sess. (1988)[hereinafter Equal Access].

132 The HCFA is the arm of the Health and Human Services Department which has the primary responsibility for enforcing the anti-dumping legislation.

133 Equal Access, supra note 131, at 11.

134 Id. at 20.

135 53 Fed. Reg. 22,513 (1988).

136 Id.

137 Equal Access, supra note 121, at 21.

138 Id.

139 For example, Parkland Memorial in Dallas, Texas developed its own transfer policy which includes tape-recorded and computer records of all transfers. These records are reviewed monthly. See Parkland study, supra note 15, at 1430.

140 See text accompanying note 111.

141 The New York Times reported that Brookside Hospital in San Pablo, California had been notified by the federal government that it would no longer be receiving Medicare and Medicaid reimbursement because it had violated federal anti-dumping legislation. Federal officials had previously moved to end payments to Brookside under laws governing Medicare and Medicaid providers which existed well prior to the passage of the anti-dumping legislation. N.Y. Times, Apr. 1, 1987, at A17, Col. 1. Shortly after this article appeared, the Health Care Financing Administration decided not to terminate the hospital's Medicare contract. News Digest, MOD. HEALTHCARE, Apr. 24, 1987, at 24.

142 This is not to suggest that the only duty imposed on a hospital with respect to emergency care would result exclusively from the common law or federal statutes. State legislatures can and have passed laws regarding such a duty. For example, Texas passed legislation in 1983 (well prior to the passage of the federal legislation) to prevent discriminatory practices in emergency care based on an individual's ability to pay. See TEX. REV. CIV. STAT. ANN. art. 4438a (Vernon Supp. 1986).

143 Even ACEP, the professional organization for emergency physicans, gives conflicting messages on the provision of emergency health care to the medically indigent.

Though ACEP implies that emergency physicans will continue to provide medical care to all patients regardless of their ability to pay, the transfer guidelines acknowledge that economic factors are legitimate considerations in the treatment of emergencies. In its discussion of transfers, ACEP notes that an important consideration which may justify transfer in individual cases is “[t]he availability of free medical care at a public or government financed facility [which] may obviate or reduce the economic burdens that the patient might otherwise incur.” See 1986 U.S. CODE CONG. & ADMIN. NEWS at 742. ACEP attempts to come across as doing the patient a favor by considering the cost of treatment. However, the medically indigent, by definition, are unable to fully pay for their care, and the only economic burden which actually is obviated is that which is on the hospital which dodges indigent care. ACEP does state that patients should be evaluated and stabilized before transfer, but the logic behind the transfer of patients for economic reasons is not so limited.

This is not to suggest that ACEP does not recognize the current crisis in indigent health care; recently, ACEP called on emergency physicians to become involved in finding solutions to the problem of providing emergency care for the medically indigent. See Am. College Emerg. Phys., Access to Emergency Medical Care: Emergency Physicians and Uncompensated Care, 16 ANNALS EMERG. MED. 1302 (1987)CrossRefGoogle Scholar. It should be noted, however, that ACEP's perspective on the issue of indigent care is fashioned primarily from the economic loss sustained by its member physicians and not from the harm to victims of patient dumping. Id. at 1303.

144 Thurow, , Medicine versus Economics, 313 NEW ENG. J. MED. 611 (1985)CrossRefGoogle Scholar.

145 Several states have enacted health care statutes in an effort to deal with the indigent health care problem. See Dovvell, , Indigent Access to Hospital Emergency Room Services, 18 CLEARINGHOUSE REV. 483, 494 (1984)Google Scholar. A review of state statutes is beyond the scope of this paper. Few state statutes have had any significant effect on the patient dumping problem. A notable exception to this is the statute passed by Texas prior to the passage of the federal anti-dumping legislation. See TEX. REV. CIV. STAT. ANN. art. 4438d (Vernon Supp. 1986). In Texas, emergency services that are available at a general hospital cannot be denied to a person diagnosed by a physician as needing those services because of arbitrary, capricious or unreasonable discrimination based on economic status. TEX. REV. CIV. STAT. ANN. art. 4438 a(6) (Vernon Supp. 1986). The striking difference between the Texas legislation and the federal legislation is that in Texas, violation of the statute can result in criminal penalties against the transgressing hospital. In addition, the Texas Department of Health, unlike HHS, has promulgated detailed enforcement regulations and made appropriate patient transfers a prerequisite to hospital licensure. See TEX. ADMIN. CODE, tit. 25 (1986); see also TEXAS DEP't HEALTH, REGULATIONS OF THE TEXAS DEPARTMENT OF HEALTH ch. 11 (1986).

146 W. PROSSER, D. DOBBS, R. KEETON & D. OWEN, PROSSER & KEETON ON THE LAW OF TORTS (5th ed. 1984). It is interesting to note that in the case of medical malpractice, the standard of care is set not by the community at large but by the medical community. If the medical community were to set the standard of care for patient dumping in the current health care climate, it is conceivable that the traditional common law “no duty” rule would again shield hospitals from liability for patient dumping. Humana, a high profile, for-profit medical enterprise, has acknowledged that it transfers uninsured emergency patients to public hospitals. While Humana is not alone in viewing indigent health care as the responsibility of public hospitals, its response to the human cost of dumping is chilling. Paul Starr, in his noted sociological study of American medicine, relates that one Humana official's response to a patient who died after being transferred within one day of suffering a heart attack was “[t]hese freebies cost $2,000 or $3,000 a day. Who's going to pay for them?” P. STARR, THE SOCIAL TRANSFORMATION OF AMERICAN MEDICINE 436 (1982).

It is beyond the scope of this paper to discuss the varied and sophisticated analyses of tort law through the decades. In the last decade alone, analyses range from those that argue tort law provides a response to the individual's dilemma to institutionalized society, Sulnick, , Political Perspective of Tort Law, 7 LOY. L. REV. 410 (1974)Google Scholar, to those who see the function of tort doctrine to be the identification and placement of the costs of injuries on those who can most cheaply avoid costs by modifying their behavior. See, e.g., G. WHITE, TORT LAW IN AMERICA — AN INTELLECTUAL HISTORY 218-23 (1980).

147 Thurow, supra note 144, at 613. The author observes that if the public's political willingness to cut back on government food programs for the poor is any indication, then the public may be willing to tolerate a level of health care for the poor which is lower than some might have thought politically possible.

148 California Bill SB-12, S.B. No. 12, 1987 Reg. Sess., 1987 Cal. Stat., ch. 1240. Signed into law by Governor Deukmejian on September 26, 1987, it is noteworthy that the California legislation does compensate hospitals which have incurred losses from the provision of uncompensated care. Compensation is limited to physicians. Id. (emphasis added.

149 1987 Cal. Stat., ch. 1240 (Legislative Counsel's Digest).

150 Id.

151 Supra note 126, at ch. 2.5, § 1797.98c(a).

152 Like ACEP's approach to the problem of indigent care, the California Legislature's approach to the problem of patient dumping is predicated on the economic loss to providers of emergency care to the medically indigent, not on the harm to individuals who are the victims of patient dumping. The legislation specifically recognized “the breadth of the uncompensated and undercompensated care problems facing California providers which serve large numbers of unsponsored persons.” See supra note 148, at § 1(c)(emphasis added).

153 One economist predicts that the most likely outcome of our market approach to health care will be a segregated, three tier delivery system. The first, tier would be composed of a set of governmental health care providers who would provide a minimal level of care for the poor and the elderly. The second tier would be comprised of the health care provided by corporations and other employers to their employees. The quality of health care in this tier would depend upon the care the employers were willing to provide for their employees. The third tier would be a free market, individual system in which the only limit on treatment would be the amount an individual could pay. See Thurow, supra note 144, at 613. If a provider's main motivation was maximization of profits, it follows that most health care providers would prefer to compete in the third tier. Id.