George B. Breen, Member of the Firm in the Health Care & Life Sciences and Litigation practices and Chair of the firm’s National Health Care & Life Sciences Practice Steering Committee, in the firm’s Washington, DC, office, was quoted in ED Legal Letter, in “Attorneys Use EMTALA in False Claims Act Lawsuits — So Far, Unsuccessfully.”

Following is an excerpt:

Two recent lawsuits, both filed in Mississippi, tested a novel theory of liability. Attorneys argued that the hospital did not provide stabilizing treatment or transfer as required by the Emergency Medical Treatment and Labor Act (EMTALA), rendering patient bills to the federal government actionable under the False Claims Act (FCA).1,2

The Department of Justice (DOJ) moved to dismiss the cases, both of which alleged FCA violations based on purported EMTALA violations.3,4

In explaining its rationale, the DOJ wrote, “EMTALA violations typically involve turning patients away from a hospital emergency room rather than treating them and, thus, do not lead to the submission of any false claims to the government.”

One case was dismissed in March 2019, and the other is pending. “The False Claims Act was never intended to address every potential regulatory violation,” says George B. Breen, JD, adding that there are existing administrative remedies to address EMTALA violations. “The government apparently recognized this in taking the affirmative step to seek dismissal of these cases after it had declined to intervene in each of them,” says Breen, an attorney at Washington DC-based Epstein Becker & Green.

Previously, the DOJ used its authority sparingly to dismiss FCA actions brought by whistleblowers. Even baseless cases were allowed to proceed. “This caused healthcare providers to spend considerable resources defending against meritless claims,” Breen explains. The DOJ’s forceful rejection of the allegations in the recent cases suggest this is no longer the status quo, making additional similar cases unlikely.

Jump to Page

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.