Overlawyered: New Orleans Letter and EMTALA

From Overlawyered:

Longtime reader C.G. Moore, a 3L at Tulane Law who lives in St. Tammany
Parish outside New Orleans, writes in to say:

My wife, 4 mo. old son, and I survived [Hurricane Katrina] (we live
in St. Tammany parish, about 10 miles from lake Pontchartrain). I noticed you
had a link to WWL
television’s plea for medical personnel
to assist the victims. I was in a
unique position during the storm and afterward: my wife is an ER doctor, and we
sheltered at the hospital where she works.

The doctors and nurses were
incredible. They worked non-stop, under incredibly stressful conditions. Many
didn’t know where their loved ones were, or whether they had survived, and there
was no way to contact the outside world. Many lost everything to the flood
waters, tornadoes, and fallen trees. And still, they worked 12-hour shifts
(sometimes longer).

But one of the first hurdles they had to contend
with was the effects of EMTALA in a disaster situation. [EMTALA is a federal law under
which hospitals can be sued if they turn away patients needing emergency medical
— ed.] Under EMTALA, ER physicians are cautious to the point of
absurdity. But as the hospital quickly filled to capacity with seriously ill and
injured patients, the ER was able to attend to life-or-death situations only.
Strict triage procedures were needed to separate the "worried well" from the
dying. Medical care really was a limited commodity. Although the magnitude of
the catastrophe was clear to all, some patients and their families couldn’t
understand that minor boo-boos didn’t merit immediate care (much less admission
to the hospital, where it was air-conditioned and they could get a hot meal).

So, my concern is this: once the rubble is cleared and the power
restored, the plaintiffs’ lawyers will ooze back into the scene — that this was
a disaster situation won’t matter one iota — and they’ll use EMTALA to file
lawsuit after lawsuit.

I really hope I’m wrong. But only time will tell.

I wouldn’t bet against it.


  1. EMTALA requires only a medical screening exam for every patient that presents. There is no hard and fast rule for what constitutes a medical screening exam. Determining that someone has a “boo-boo” would count as a screening exam in a disaster scenario.

  2. Daniel Newby says:

    I doubt this will be a problem. Sympathetic juries will be mighty thin on the ground.

  3. You’re assuming which side a jury would be sympathetic to.

  4. Is the presence of a major disaster going to be admissible in court as a reason for not administering health care? IE if any of the dialysis patients die because they are unable to be dialyzed, will they be able to sue? Apparently an internal disaster (ie flood in the hospital, power outage, massive influx of patients) is not admissible as a defense when a patient has a bad outcome. Will there be a massive class-action against the city of New Orleans for all the M & M that has occurred in the past week?

  5. “Will there be a massive class-action against the city of New Orleans for all the M & M that has occurred in the past week?” I think as of 13 September 2005 the city has lost nearly all its residents and is now bankrupt. Deep pockets will have to be located elsewhere. The hospital architects who put emergency generators below sea level are one likely target, as are hospital administrators and staff who did not have evacuation plans in place prior to 28 August 2005. The recovery of the Katrina disaster zone and the ensuing lawsuits promise to be the biggest boondoggle in US history.

  6. Most patients, and all plaintiff attorneys, consider medmal insurance companies to be nice, deep pockets.