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Enforcement

This statute provides for several enforcement mechanisms. The government can fine a hospital or physician up to $50,000 for each violation of the statute. The hospital or physician can be excluded from participation in all health programs that receive state or federal money. The hospital can lose not-for-profit status.[221] Perhaps most important, the statute creates a federal cause of action, essentially a federal malpractice lawsuit, against hospitals that do not comply with the statute.[222] This action is predicated on a failure to comply with the law's requirements for screening and transfer. It does not include malpractice claims based on incorrect diagnosis or treatment.[223] Interestingly, both patients and other health care institutions may sue for injuries. This would allow a receiving hospital to sue a transferring hospital that misrepresented a patient's condition in order to dump the patient for financial reasons.

At least one court[224] has found that the statute does not create a federal cause of action against physicians, in addition to allowing physicians to be sued under state law for malpractice. At least one federal district court has held that such lawsuits are not subject to tort reform caps on damages.[225] As discussed in Chapter 6, this statute sets the standard of care for access to emergency care. A physician who violates the provisions of this statute could be sued for negligence per se.

[221]Pizza NF: Patient transfers--COBRA as amended. The Health Lawyer 1992; 6(2):1-10.

[222]Reid v. Indianapolis Osteopathic Medical Hosp., Inc. 709 F Supp 853 (SD Ind 1989).

[223]Cleland v. Bronson Health Care Group, Inc. 917 F2d 266 (CA6 Mich 1990).

[224]Sorrels v. Babcock. 773 F Supp 1189 (1990).

[225]Reid v. Indianapolis Osteopathic Medical Hosp., Inc. 709 F Supp 853 (SD Ind 1989).


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