Wisconsin Court Rules On-call Physician with Privileges is an 'Employee' of the Hospital for Purposes of EMTALA Whistleblower Enforcement
By Robert A. Bitterman, MD, JD, FACEP
Contributing Editor, ED Legal Letter
Two years ago, a Texas court, in the case of Dr. Zawislak v. Memorial Hermann Hospital, determined that emergency physicians were "employees" of the hospital for determining whether they could sue the hospital under the Emergency Medical Treatment and Labor Act's (EMTALA) whistleblower provision for retaliatory termination (see the February 2012 ED Legal Letter).1,2 Now, a federal district court in Wisconsin has expanded on the Zawislak decision to include on-call physicians as "employees" of the hospital, allowing them to sue the hospital for allegedly terminating their privileges for reporting violations of EMTALA.3
The Case of Dr. Muzaffar v. Aurora Health Care Southern Lakes Inc.
The Facts. Dr. Muzaffar was on call for internal medicine at Lakeland Hospital in Aurora, WI, when asked to accept a patient in transfer to Aurora. He refused to accept the transfer, claiming the patient would receive better care at a different hospital. However, the transferring physician did not agree and somehow finagled the patient's transfer to Aurora without Dr. Muzaffar's authorization. Additionally, two other patients were transferred to Aurora the same day onto Dr. Muzaffar's service without his knowledge or consent. Dr. Muzaffar claimed he would have refused to authorize these two transfers because the transferring physician failed to complete legally mandated transfer documentation in compliance with EMTALA. Subsequently, he reported the supposed EMTALA violations to the hospital's Medical Executive Committee.3
Not long afterward, Dr. Muzaffar alleged that Aurora retaliated against him by rescinding his medical staff privileges for reporting that the transfers violated EMTALA. The hospital claimed it released him for reasons related to interpersonal difficulties or disruptive behavior.3
The issue before the court was whether an on-call physician who enjoys privileges at a hospital is an employee of that hospital for purposes of EMTALA's whistleblower provision.3,4
Arguments of the Parties
The physician argued that his relationship with Aurora was governed by the hospital's Medical Staff Bylaws, which required him to perform certain functions, including "providing on-call coverage for emergency care services within his clinical specialty."3 Dr. Muzaffar asserted that his schedule for on-call duties was set by Aurora and it was while he was actually on call at Aurora that he "observed what he believed to be EMTALA violations." Additionally, he told the court that when performing his on-call duties, he "directly and personally provided medical evaluation and treatment to Aurora's emergency room patients" and was "personally responsible for making decisions regarding stabilizing and transferring patients and conforming to EMTALA in handling the patients."3
Furthermore, relying on the Zawislak decision, Dr. Muzaffar basically made a public-policy argument, stating that finding he is not an employee of Aurora for enforcement of EMTALA would contravene the purposes of the statute.3,5
Aurora did not contest Dr. Muzaffar's statements regarding his medical staff on-call responsibilities, arguing instead that his on-call services were a condition of privileging rather than a condition of employment. Aurora stated it did not compensate Dr. Muzaffar in any way; did not provide him with employment benefits; did not pay his malpractice premiums; did not provide him with office space; did not bill his patients; did not pay his income or social security taxes; and did not provide him with paid vacation. In other words, Dr. Muzaffar was not its employee in the traditional sense of an IRS W-2 hospital employee. Moreover, Aurora claimed that any and all physicians it employs are required to enter into a written "Physician Employment Agreement" with the hospital, which Dr. Muzaffar had not done.3
Aurora countered Dr. Muzaffar's public-policy argument by arguing that the court should use Title VII employment discrimination law to determine if an individual is an employee for purposes of EMTALA's whistleblower protection. (Most courts use Title VII analysis to decide retaliation claims under other non-EMTALA federal statutes.) Specifically, Aurora argued that under court precedent, a physician with staff privileges is not an employee but rather an independent contractor for purposes of bringing employment discrimination claims.6 Aurora further argued that Title VII law should apply "because at least one federal district court in the case of Elkharwily v. Mayo Clinic Health System has held that 'courts examine EMTALA-retaliation claims under Title VII jurisprudence.'"7
The Court's Decision
The court noted that the purpose of EMTALA is to prevent "patient dumping," the practice of refusing to provide emergency medical treatment to patients who are unable to pay, or transferring them before their emergency conditions are stabilized.3,8
The law provides a private right of action for individuals who sustain personal harm as result of a hospital's violation of the statute,9 and it also contains a whistleblower provision in order "to ensure that persons are not penalized or retaliated against for reporting violations of EMTALA's terms."10,11 The relevant portion reads:
Whistleblower protections. "A participating hospital may not penalize or take adverse action against a physician because the physician refuses to authorize the transfer of an individual with an emergency medical condition that has not been stabilized or against any hospital employee because the employee reports a violation of a requirement of this section."10
The whistleblower provision, therefore, protects physicians in only two circumstances: (1) if the physician refuses to authorize a transfer of a patient who has not been stabilized;12 and (2) if the physician is a hospital employee who reports violations of EMTALA.
Dr. Muzaffar clearly did not fall within the first category of protected physicians, and EMTALA itself and The Centers for Medicare and Medicaid Services EMTALA regulations do not define the meaning of the term "employee" as used in the statute.13 Thus, the dispute concerned whether Dr. Muzaffar was a hospital employee for purposes of EMTALA's whistleblower provision.
The court noted that the Title VII cases on which Aurora relied were not germane to the EMTALA issue. First, there was no 7th Circuit precedent applying Title VII analysis to the definition of employee under EMTALA's whistleblower protection. Rather, the Title VII analysis was used to determine the type of evidence needed to show retaliation, not whether the physician was an employee of the hospital under the whistleblower provision.3 In fact, in the case specifically cited by Aurora, Elkharwily v. Mayo Clinic, there was no dispute as to the employer-employee relationship — the physician plaintiff was an employed hospitalist under contract with the defendant.14
The Elkharwily case is highly relevant to alleged EMTALA violations arising out of the emergency department in another way. The court expressly ruled that failure of a hospital's on-call physician to come to the ED when requested by the treating physician is a violation of EMTALA; and reporting failure of the on-call physician to respond appropriately by a physician with hospital privileges or any other hospital employee is an act protected by the EMTALA whistleblower provision.14
Second, it makes sense that a physician with staff privileges is not an employee but rather an independent contractor for purposes of bringing an employment discrimination suit under Title VII, because an employer cannot prevent discrimination against an employee or in a workplace it does not control. The court judged that if EMTALA's whistleblower provision's purpose was the protection of employees from workplace discrimination, the Title VII independent contractor analysis would be helpful in defining an employee under the whistleblower provision. However, that is not the case: EMTALA's purpose is to prevent patient dumping, and the whistleblower provision enforces that purpose.3
After considering the arguments of the parties and available court precedent, the court accepted the reasoning behind the Zawislak case in Texas.3 Dr. Zawislak was an emergency physician who alleged that his medical staff privileges were revoked after he reported two EMTALA violations he observed at the hospital where he had privileges.1,2 The Zawislak court found that the purposes of EMTALA would be frustrated if a physician who enjoyed staff privileges was not considered an employee for purposes of whistleblower protection. In the words of the court:
"The court does not agree that, because the act affirmatively prohibits hospitals from taking adverse action against 'any hospital employee,' it impliedly permits hospitals to take adverse action against physicians with hospital privileges who have observed and reported EMTALA violations. Such a result would seem to contradict the very purpose of EMTALA. The legislative purpose of the statute is best served by construing it to prohibit participating hospitals from penalizing physicians with medical privileges ... A physician with medical privileges in a hospital's emergency room is in an advantageous position to observe whether a hospital is encouraging and instructing physicians to dump patients."1
Aurora tried to argue that Zawislak's reasoning should not apply because, unlike Zawislak, Dr. Muzaffar did not observe violations at the hospital where he had privileges; instead, the alleged violations were by a transferring hospital. The court found this to be "a distinction without a difference." "A privileged physician is in an 'advantageous position' to observe potential EMTALA violations committed by both the hospital where he has staff privileges and by hospitals transferring to the hospital where he has staff privileges. Thus, the purpose of EMTALA — to prevent patient dumping — is achieved whether the reporting physician is privileged at the hospital receiving the patient or the hospital transferring the patient."3
Therefore, the court ruled that Dr. Muzaffar was an "employee" for purposes of filing a claim for retaliatory termination under EMTALA's whistleblower provision.3
Comment
In its decision, the court noted that the "federal government cannot be in all emergency hospitals at all times."3 While it may feel as if the government hovers over the ED at all times, there is no question that physicians who actually work in the ED are in the best position to observe and report EMTALA violations. If hospitals were allowed to penalize physicians with impunity for reporting EMTALA transgressions because they were not employed by the hospital in the "traditional" sense, it would have a chilling effect on physician reporting and subvert the purpose of the whistleblower provision of the statute.
The net effect of the court decisions in Muzaffar and Zawislak is to allow physicians to sue hospitals for damages if the hospital takes retaliatory action against the physicians for reporting EMTALA violations that often cause serious harm to the patients involved.15
References
- Zawislak v. Memorial Hermann Hosp. Sys., 2011 WL 5082422 (S.D. Tex. Oct. 26, 2011).
- Bitterman RA. Texas emergency physician sues hospital in EMTALA whistleblower claim. ED Legal Letter 2012;23(2):13-17.
- Muzaffar v. Aurora HC Southern Lakes Inc., No. 13-CV-744 (E.D. Wis. Nov. 27, 2013).
- Muzaffar v. Aurora Health Care Southern Lakes Inc., No. 13-CV-744 (E.D. Wis. Oct. 4, 2013). The court's initial ruling allowing the physician to argue whether he was in fact an "employee" for purposes of EMTALA.
- Dr. Zawislak ultimately lost his case due to failure to file the actual EMTALA claim within the law's 2-year statute of limitations. See Zawislak v. Memorial Hermann Hosp. Sys., No. H-12-2970 (S.D. Tex. April 3, 2013).
- See Alexander v. Rush North Shore Medical Center, 101 F.3d 487 (7th Cir. 1996) (applying the common law agency test to determine whether a physician with staff privileges was an employee or independent contractor for purposes of bringing a Title VII employment discrimination claim and finding he was an independent contractor); and Vakhario v. Swedish Covenant Hosp., 190 F.3d 799 (7th Cir. 1999) (finding that an anesthesiologist was an independent contractor and could not bring a Title VII employment discrimination claim).
- Muzaffar v. Aurora HC Southern Lakes Inc., No. 13-CV-744 (E.D. Wis. Nov. 27, 2013) citing Elkharwily v. Mayo Holding Company, No. 12-3062, 2013 WL 3338731 (D. Minn. Jul. 2, 2013).
- See Beller v. Health and Hosp. Corp. of Marion County, 703 F.3d 388 (7th Cir. 2012).
- 42 U.S.C. 1395dd(d)(2)(A).
- 42 U.S.C. 1395dd(i).
- Quoting O'Connor v. Jordan Hospital, No. 10-11416-MBB, 2013 WL 3105647 (D. Mass. Jun. 17, 2013).
- See for example, Ritten v. Lapeer Regional Medical Center, 611 F.Supp.2d 696 (E.D. Mich. 2009), where a Michigan obstetrician alleged his staff privileges were summarily suspended because he refused to transfer a patient with an emergency condition that had not been stabilized, in violation of EMTALA, which fits nicely into the first category of protected actions in EMTALA's whistleblower clause.
- 42 C.F.R. 489.24 et seq.
- Elkharwily v. Mayo Holding Company, No. 12-3062, 2013 WL 3338731 (D. Minn. Jul. 2, 2013). See also O'Connor v. Jordan Hospital, No. 10-11416-MBB, 2013 WL 3105647 (D. Mass. Jun. 17, 2013): Ms. O'Connor was employed as a nurse at the defendant hospital.
- The damages available under any EMTALA lawsuit are those damages available for personal injury under the law of the state in which the hospital is located, and such equitable relief as is appropriate. 42 U.S.C. 1395dd(d)(2)(A).
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