395.1041 Access to and ensurance of emergency services; transfers; patient rights; diversion programs; reports of controlled substance overdoses.—
(1) LEGISLATIVE INTENT.—The Legislature finds and declares it to be of vital importance that emergency services and care be provided by hospitals and physicians to every person in need of such care. The Legislature finds that persons have been denied emergency services and care by hospitals. It is the intent of the Legislature that the agency vigorously enforce the ability of persons to receive all necessary and appropriate emergency services and care and that the agency act in a thorough and timely manner against hospitals and physicians which deny persons emergency services and care. It is further the intent of the Legislature that hospitals, emergency medical services providers, and other health care providers work together in their local communities to enter into agreements or arrangements to ensure access to emergency services and care. The Legislature further recognizes that appropriate emergency services and care often require followup consultation and treatment in order to effectively care for emergency medical conditions.
(2) INVENTORY OF HOSPITAL EMERGENCY SERVICES.—The agency shall establish and maintain an inventory of hospitals with emergency services. The inventory shall list all services within the service capability of the hospital, and such services shall appear on the face of the hospital license. Each hospital having emergency services shall notify the agency of its service capability in the manner and form prescribed by the agency. The agency shall use the inventory to assist emergency medical services providers and others in locating appropriate emergency medical care. The inventory shall also be made available to the general public. Each hospital shall reaffirm its service capability when its license is renewed and shall notify the agency of the addition of a new service or the termination of a service prior to a change in its service capability.
(3) EMERGENCY SERVICES; DISCRIMINATION; LIABILITY OF FACILITY OR HEALTH CARE PERSONNEL.—
(a) Every general hospital which has an emergency department and every rural emergency hospital as defined in s. 395.607 shall provide emergency services and care for any emergency medical condition when:
1. Any person requests emergency services and care; or
2. Emergency services and care are requested on behalf of a person by:
a. An emergency medical services provider who is rendering care to or transporting the person; or
b. Another hospital, when such hospital is seeking a medically necessary transfer, except as otherwise provided in this section.
(b) Arrangements for transfers must be made between hospital emergency services personnel for each hospital, unless other arrangements between the hospitals exist.
(c) A patient, whether stabilized or not, may be transferred to another hospital which has the requisite service capability or is not at service capacity, if:
1. The patient, or a person who is legally responsible for the patient and acting on the patient’s behalf, after being informed of the hospital’s obligation under this section and of the risk of transfer, requests that the transfer be effected;
2. A physician has signed a certification that, based upon the reasonable risks and benefits to the patient, and based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another hospital outweigh the increased risks to the individual’s medical condition from effecting the transfer; or
3. A physician is not physically present in the emergency services area at the time an individual is transferred and a qualified medical person signs a certification that a physician, in consultation with personnel, has determined that the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual’s medical condition from effecting the transfer. The consulting physician must countersign the certification;
provided that this paragraph shall not be construed to require acceptance of a transfer that is not medically necessary.
(d)1. Every hospital shall ensure the provision of services within the service capability of the hospital, at all times, either directly or indirectly through an arrangement with another hospital, through an arrangement with one or more physicians, or as otherwise made through prior arrangements. A hospital may enter into an agreement with another hospital for purposes of meeting its service capability requirement, and appropriate compensation or other reasonable conditions may be negotiated for these backup services.
2. If any arrangement requires the provision of emergency medical transportation, such arrangement must be made in consultation with the applicable provider and may not require the emergency medical service provider to provide transportation that is outside the routine service area of that provider or in a manner that impairs the ability of the emergency medical service provider to timely respond to prehospital emergency calls.
3. A hospital shall not be required to ensure service capability at all times as required in subparagraph 1. if, prior to the receiving of any patient needing such service capability, such hospital has demonstrated to the agency that it lacks the ability to ensure such capability and it has exhausted all reasonable efforts to ensure such capability through backup arrangements. In reviewing a hospital’s demonstration of lack of ability to ensure service capability, the agency shall consider factors relevant to the particular case, including the following:
a. Number and proximity of hospitals with the same service capability.
b. Number, type, credentials, and privileges of specialists.
c. Frequency of procedures.
d. Size of hospital.
4. The agency shall publish proposed rules implementing a reasonable exemption procedure.
(e) Except as otherwise provided by law, all medically necessary transfers shall be made to the geographically closest hospital with the service capability, unless another prior arrangement is in place or the geographically closest hospital is at service capacity. When the condition of a medically necessary transferred patient improves so that the service capability of the receiving hospital is no longer required, the receiving hospital may transfer the patient back to the transferring hospital and the transferring hospital shall receive the patient within its service capability.
(f) In no event shall the provision of emergency services and care, the acceptance of a medically necessary transfer, or the return of a patient pursuant to paragraph (e) be based upon, or affected by, the person’s race, ethnicity, religion, national origin, citizenship, age, sex, preexisting medical condition, physical or mental handicap, insurance status, economic status, or ability to pay for medical services, except to the extent that a circumstance such as age, sex, preexisting medical condition, or physical or mental handicap is medically significant to the provision of appropriate medical care to the patient.
(g) Neither the hospital nor its employees, nor any physician, dentist, or podiatric physician shall be liable in any action arising out of a refusal to render emergency services or care if the refusal is made after screening, examining, and evaluating the patient, and is based on the determination, exercising reasonable care, that the person is not suffering from an emergency medical condition or a determination, exercising reasonable care, that the hospital does not have the service capability or is at service capacity to render those services.
(h) A hospital may request and collect insurance information and other financial information from a patient, in accordance with federal law, if emergency services and care are not delayed. No hospital to which another hospital is transferring a person in need of emergency services and care may require the transferring hospital or any person or entity to guarantee payment for the person as a condition of receiving the transfer. In addition, a hospital may not require any contractual agreement, any type of preplanned transfer agreement, or any other arrangement to be made prior to or at the time of transfer as a condition of receiving an individual patient being transferred. However, the patient or the patient’s legally responsible relative or guardian shall execute an agreement to pay for emergency services or care or otherwise supply insurance or credit information promptly after the services and care are rendered.
(i) Each hospital offering emergency services shall post, in a conspicuous place in the emergency service area, a sign clearly stating a patient’s right to emergency services and care and the service capability of the hospital.
(j) If a hospital subject to the provisions of this chapter does not maintain an emergency department, its employees shall nevertheless exercise reasonable care to determine whether an emergency medical condition exists and shall direct the persons seeking emergency care to a nearby facility which can render the needed services and shall assist the persons seeking emergency care in obtaining the services, including transportation services, in every way reasonable under the circumstances.
(k)1. Emergency medical services providers may not condition the prehospital transport of any person in need of emergency services and care on the person’s ability to pay. Nor may emergency medical services providers condition a transfer on the person’s ability to pay when the transfer is made necessary because the patient is in immediate need of treatment for an emergency medical condition for which the hospital lacks service capability or when the hospital is at service capacity. However, the patient or the patient’s legally responsible relative or guardian shall execute an agreement to pay for the transport or otherwise supply insurance or credit information promptly after the transport is rendered.
2. A hospital may enter into an agreement with an emergency medical services provider for purposes of meeting its service capability requirements, and appropriate compensation and other reasonable conditions may be negotiated for these services.
(l) Hospital personnel may withhold or withdraw cardiopulmonary resuscitation if presented with an order not to resuscitate executed pursuant to s. 401.45. Facility staff and facilities shall not be subject to criminal prosecution or civil liability, nor be considered to have engaged in negligent or unprofessional conduct, for withholding or withdrawing cardiopulmonary resuscitation pursuant to such an order. The absence of an order not to resuscitate executed pursuant to s. 401.45 does not preclude a physician from withholding or withdrawing cardiopulmonary resuscitation as otherwise permitted by law.
(m)1. A hospital-based off-campus emergency department may not hold itself out to the public as an urgent care center and must clearly identify itself as a hospital emergency department, using, at a minimum, prominent lighted external signage that includes the word “EMERGENCY” or “ER” in conjunction with the name of the hospital. If a hospital-based off-campus emergency department is located on the same premises as an urgent care center, the signage may also identify the urgent care center.
2. A hospital-based off-campus emergency department shall conspicuously post signs at locations that are readily accessible to and visible by patients outside the entrance to the facility and in patient waiting areas which state the following: “THIS IS A HOSPITAL EMERGENCY DEPARTMENT.” Unless the hospital-based off-campus emergency department shares a premises and a public entrance with an urgent care center, the signs must also state the following: “THIS IS NOT AN URGENT CARE CENTER. HOSPITAL EMERGENCY DEPARTMENT RATES ARE BILLED FOR OUR SERVICES.” The signs must also specify the facility’s average facility fee, if any, and notify the public that the facility or a physician providing medical care at the facility may be an out-of-network provider. The signs must be at least 2 square feet in size, and the text must be in at least 36 point type.
3. Except as provided in this subparagraph, any advertisement for a hospital-based off-campus emergency department must include the following statement: “This emergency department is part of (insert hospital name).” Unless the hospital-based off-campus emergency department is located on the same premises as an urgent care center that is advertised in the same advertisement, the advertisement must also include the following statement: “This is not an urgent care center. Its services and care are billed at hospital emergency department rates.” Any billboard advertising a hospital-based off-campus emergency department which measures at least 200 square feet must include the following statement in clearly legible contrasting color text at least 15 inches high: “(INSERT NAME OF HOSPITAL) EMERGENCY DEPARTMENT.” Unless the hospital-based off-campus emergency department is located on the same premises as an urgent care center that is advertised on the same billboard, such billboard must also include the following statement in clearly legible contrasting color text at least 15 inches high: “THIS IS NOT AN URGENT CARE CENTER.”
4. The agency shall post on its website, and annually update, information that describes the differences between a hospital-based off-campus emergency department and an urgent care center. Each hospital shall post a link to such information in a prominent location on its website. Such description must include:
a. At least two examples illustrating the impact on insured and insurer paid amounts of inappropriate utilization of nonemergent services and care in a hospital emergency department setting compared to utilization of nonemergent services and care in an urgent care center;
b. An interactive tool to locate local urgent care centers; and
c. What to do in the event of a true emergency.
(4) RECORDS OF TRANSFERS; REPORT OF VIOLATIONS.—
(a)1. Each hospital shall maintain records of each transfer made or received for a period of 5 years. These records of transfers shall be included in a transfer log, as well as in the permanent medical record of any patient being transferred or received.
2. Each hospital shall maintain records of all patients who request emergency care and services, or persons on whose behalf emergency care and services are requested, for a period of 5 years. These records shall be included in a log, as well as in the permanent medical record of any patient or person for whom emergency services and care is requested.
(b) Any hospital employee, physician, other licensed emergency room health care personnel, or certified prehospital emergency personnel who knows of an apparent violation of this section or the rules adopted under this section shall report the apparent violation to the agency within 30 days following its occurrence.
(c) A hospital, government agency, or person shall not retaliate against, penalize, institute a civil action against, or recover monetary relief from, or otherwise cause any injury to:
1. A physician or other person for reporting in good faith an apparent violation of this section or the rules adopted under this section to the agency, hospital, medical staff, or any other interested party or government agency;
2. A physician who refuses to transfer a patient if the physician determines, within reasonable medical probability, that the transfer or delay caused by the transfer will create a medical hazard to the patient; or
3. A physician who effectuates the transfer of a patient if the physician determines, within a reasonable medical probability, that failing to transfer the patient will create a medical hazard to the patient.
(5) PENALTIES.—
(a) The agency may deny, revoke, or suspend a license or impose an administrative fine, not to exceed $10,000 per violation, for the violation of any provision of this section or rules adopted under this section.
(b) Any person who suffers personal harm as a result of a violation of this section or the rules adopted hereunder may recover, in a civil action against the responsible hospital administrative or medical staff or personnel, damages, reasonable attorney’s fees, and other appropriate relief. However, this paragraph shall not be construed to create a cause of action beyond that recognized by this section and rules adopted under this section as they existed on April 1, 1992.
(c) Any hospital administrative or medical staff or personnel who knowingly or intentionally violates any provision of this section commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(d)1. Any hospital, or any physician licensed under chapter 458 or chapter 459, who suffers a financial loss as a direct result of a violation by a physician or a hospital of a requirement of this section may, in a civil action against the physician or the hospital, obtain damages for financial loss of charges and such equitable relief as is appropriate, including reasonable attorney’s fees and costs.
2. If the defendant prevails in an action brought by the hospital or physician pursuant to this paragraph, the court may award reasonable attorney’s fees and costs to the defendant.
(e) A physician licensed under chapter 458 or chapter 459 who negligently or knowingly violates any requirement of this section relating to the provision of emergency services and care shall be deemed in violation of the provisions of such chapters for any of the following violations:
1. Failure or refusal to respond within a reasonable time after notification when on call.
2. Failure or refusal to sign a certificate of transfer as required by this section.
3. Signing a certificate of transfer stating that the medical benefits to be reasonably expected from a transfer to another facility outweigh the risks associated with the transfer, when the physician knew or should have known that the benefits did not outweigh the risks as required by this section.
4. Misrepresentation of an individual’s condition or other information when requesting a transfer.
Any fine collected for a violation of this section, including any fine collected from a physician licensed under chapter 458 or chapter 459, shall be deposited into the Public Medical Assistance Trust Fund.
(f) In determining whether a licensee is deemed in violation of this section and in assessing any penalties for violation, the agency shall consider, and the licensee may offer as an affirmative defense or in mitigation, whether the licensee has established that the alleged violation arose from the unanticipated changes in service capability or other factors beyond the licensee’s control.
(6) RIGHTS OF PERSONS BEING TREATED.—
(a) A hospital providing emergency services and care to a person who is being involuntarily examined under the provisions of s. 394.463 shall adhere to the rights of patients specified in part I of chapter 394 and the involuntary examination procedures provided in s. 394.463, regardless of whether the hospital, or any part thereof, is designated as a receiving or treatment facility under part I of chapter 394 and regardless of whether the person is admitted to the hospital.
(b) Each hospital with an emergency department shall develop a best practices policy to promote the prevention of unintentional drug overdoses. The policy may include, but is not limited to:
1. A process to obtain the patient’s consent to notify the patient’s next of kin, and each physician or health care practitioner who prescribed a controlled substance to the patient, regarding the patient’s overdose, her or his location, and the nature of the substance or controlled substance involved in the overdose.
2. A process for providing the patient or the patient’s next of kin with information about licensed substance abuse treatment services, voluntary admission procedures under part IV of chapter 397, involuntary admission procedures under part V of chapter 397, and involuntary commitment procedures under chapter 394.
3. Guidelines for emergency department health care practitioners authorized to prescribe controlled substances to reduce the risk of opioid use, misuse, and addiction.
4. The use of licensed or certified behavioral health professionals or peer specialists in the emergency department to encourage the patient to seek substance abuse treatment.
5. The use of Screening, Brief Intervention, and Referral to Treatment protocols in the emergency department.
This paragraph may not be construed as creating a cause of action by any party.
(7) EMERGENCY ROOM DIVERSION PROGRAMS.—Hospitals may develop emergency room diversion programs, including, but not limited to, an “Emergency Hotline” which allows patients to help determine if emergency department services are appropriate or if other health care settings may be more appropriate for care, and a “Fast Track” program allowing nonemergency patients to be treated at an alternative site. Alternative sites may include health care programs funded with local tax revenue and federally funded community health centers, county health departments, or other nonhospital providers of health care services. The program may include provisions for followup care and case management.
(8) REPORTING OF CONTROLLED SUBSTANCE OVERDOSES.—A hospital emergency department or an urgent care center that treats and releases a person in response to a suspected or actual overdose of a controlled substance must report such incident to the department if the patient was not transported by a transport service operating pursuant to part III of chapter 401. Such reports must be made using an appropriate method with secure access, including, but not limited to, the Washington/Baltimore High Intensity Drug Trafficking Overdose Detection Mapping Application Program, the Florida Prehospital EMS Tracking and Reporting System (EMSTARS), or another program identified by department rule. If a hospital emergency department or an urgent care center reports such an incident, it must use its best efforts to make the report to the department within 120 hours after becoming aware of the incident.
...health of another.
Fla. Stat. § 768.13(2)(b)1 (2000). In 2003, the GSA was amended to apply to
“[a]ny health care provider, including a hospital licensed under chapter 395,
providing emergency services pursuant to obligations imposed by 42 U.S.C. §
1395dd, § 395.1041, § 395.401, or § 401.45 ....
...s treatment only to a select group
of persons, not to all persons. On appeal, the Turners argue that neither the 2001
nor the 2003 version of GSA applies to NHJ because NHJ does not comply with
the Florida anti-patient dumping statute, Fla. Stat. § 395.1041, and “does not treat
all patients as required by” Fla....
...of
ability to pay” within NHJ’s beneficiary population. Pls.’ Ex. 19, p. 4. Every
person within NHJ’s beneficiary population is able to receive emergency care at
NHJ. This policy is consistent with the obligations imposed under Fla. Stat. §
395.1041 upon general hospitals that have an emergency department, which
requires such hospitals to provide emergency medical care to patients without
regard to their “race, ethnicity, religion, national origin, citizenship, age, sex, . . .
economic status, or ability to pay . . . .” Fla. Stat. § 395.1041(3)(f) (2006).
Further, we find that NHJ’s emergency department acts consistently with
subsection (2)(b)4 of the GSA, which requires “[e]very emergency care facility
granted immunity under this paragraph [to] accept and treat all em...
Cited 33 times | Published | Court of Appeals for the Eleventh Circuit | 53 Employee Benefits Cas. (BNA) 1649, 108 A.F.T.R.2d (RIA) 5728, 2011 U.S. App. LEXIS 16806, 2011 WL 3519178
...cy. See Thornton v. Sw. Detroit Hosp.,
895 F.2d 1131, 1132 (6th Cir. 1990) (observing in the application of EMTALA that
“American hospitals have a long tradition of giving emergency medical aid to anyone
17
See Fla. Stat. Ann. § 395.1041(1); Idaho Code Ann....
...Plaintiffs' complaint contains seven counts [2] against three defendants Calhoun Hospital, Dr. Rivera and Dr. Sutton. In these counts, Plaintiff asserts claims against Defendants under the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd, and Fla.Stat.Ann. §§ 395.1041 and 401.45....
...Finally, the Court will rule on Plaintiff's motion to amend and Calhoun Hospital's motion to strike certain exhibits. I. Supplemental Jurisdiction over Plaintiffs' State Law Claims. In counts I, IV and VII, Plaintiff asserts claims against each defendant under Fla.Stat.Ann. § 395.1041 and 401.95....
...ute further states: (c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if (1) the claim raises a novel or complex issue of State law, ... Id. at § 1367(c). Research reveals Fla.Stat.Ann. §§ 395.1041 and 401.45 create new statutory causes of action which are yet to be interpreted by a Florida appellate court....
...son arrives at their emergency room. 42 U.S.C.A. § 1395dd(a) (West 1993). The Florida statute on the other hand, mandates hospitals provide "emergency services and care for any emergency medical condition" under similar circumstances. Fla.Stat.Ann. § 395.1041(3)(a) (West 1993)....
...Sutton argues neither of the counts alleged against her counts VII and VIII states a claim for relief. Likewise, Dr. Rivera urges the dismissal Plaintiff's claims against him in counts IV and V. In counts IV and VII, Plaintiff alleges the doctors violated Fla.Stat.Ann. §§ 395.1041 and 401.45....
...§ 1395dd(h).
In keeping with the Florida Legislature’s intent “that emergency services
and care be provided by hospitals and physicians to every person in need of such
7
Case: 13-13917 Date Filed: 08/14/2014 Page: 8 of 15
care,” Fla. Stat. § 395.1041(1), Florida law imposes similar obligations of its own.
One statute, for example, requires every general hospital with an emergency
department to provide emergency care for any emergency condition when “[a]ny
person requests emergency services and care,” regardless of ability to pay. See
Fla. Stat. § 395.1041(3)(a)(1), (f)....
Cited 5 times | Published | Florida 1st District Court of Appeal
...nty ordinance from determining how to subsidize emergency ambulance services. We also find, however, that the portion of the ordinance which makes a receiving hospital primarily responsible for payment for ambulance services expressly conflicts with section 395.1041(3)(k)(1), Florida Statutes....
...See also City of Boca Raton v. State, 595 So.2d 25, 29 (Fla.1992). [4] The statutory sections contained in chapters 395 and 401 related to funding also do not expressly constitute a preemption of the county's authority to subsidize emergency medical services. While section 395.1041(3)(k), Florida Statutes (1993), deals with a mechanism of funding emergency medical services, there is nothing in the statute which would indicate a desire to preempt the county's authority to subsidize this funding through its home rule power....
...We, therefore, find that no preemption of the subject area existed. We next address the final issue: If the county had the power to adopt ordinances to subsidize the emergency medical transportation provider, did the method they chose expressly conflict with state statute. Section 395.1041(3)(k)1, Fla....
Cited 2 times | Published | Florida 2nd District Court of Appeal | 2015 WL 4771934
...provide any level of indigent medical care; hospitals, on the other hand, must do so.
Florida requires all hospitals with emergency departments to provide emergency care
when "[a]ny person requests emergency services and care," regardless of ability to pay.
§ 395.1041(1), (3)(a)(1), (3)(f), Fla....
...Herbert and Molly Cintron, individually and as parents of their daughter, Saleena, appeal a final summary judgment in their action against St. Joseph’s Hospital, Inc. In their complaint, the Cintrons claim that St. Joseph’s Hospital was liable for damages under section 395.1041, Florida Statutes (2004), because the hospital’s medical staff refused to treat their young daughter when she was suffering an acute asthma attack....
...tive. No party ever set this defense for a pretrial hearing. More than three years later, the hospital moved for summary judgment “based on failure to state cause of action” under the statute. In its motion, the hospital accurately observed that section 395.1041(5)(b) states that “[a]ny person who suffers personal harm as a result of a violation of this section or the rules adopted hereunder may recover, in a civil action against the responsible hospital administrative or medical staff or personnel, damages, reasonable attorney’s fees, and other appropriate relief.” It argued that section 395.1041(5)(a) created an administrative sanction against the hospital for an amount not to exceed $10,000 per violation, and that this administrative sanction was the sole liability of the hospital....
Cited 1 times | Published | Florida 3rd District Court of Appeal
...d.
Non-Delegable Duty Based on Statute
In Count V of the second amended complaint, the Estate alleges that the
Hospital had a non-delegable duty to provide non-negligent emergency room care
to Ms. Torres based on sections 395.001 and 395.1041 of the Florida Statutes, and
on several administrative rules promulgated pursuant to section 395.1055(1)(a).
The Estate’s specific reliance is upon section 395.1041, which provides, among
7
other things, certain guidelines for hospital emergency treatment. See §
395.1041(3), Fla....
Cited 1 times | Published | Florida 2nd District Court of Appeal | 2009 WL 32421
...oncerning an order denying St. Joseph's motion to determine reasonable basis for a lawsuit and an order declaring moot St. Joseph's motion to dismiss the lawsuit. We deny the petitions. Herbert and Molly Cintron filed suit against St. Joseph's under section 395.1041, Florida Statutes (2004), which is sometimes referred to as Florida's "patient dumping" or "anti-dumping" statute....
...As a threshold matter, the trial court had to determine whether the claims filed against St. Joseph's by the Cintrons were medical malpractice claims for which the Cintrons were required to follow the presuit provisions of chapter 766 as a condition precedent to filing their claims or were claims under section 395.1041, the "anti-dumping" statute....
...Joseph's filed a petition for writ of certiorari in case number 2D08-2261 in regard to this order. We consolidated the two petitions. In this certiorari proceeding St. Joseph's argues that the Cintrons' complaint alleges a cause of action for medical malpractice rather than a cause of action pursuant to *1194 section 395.1041....
...Ctr., Inc. v. Allen, 944 So.2d 541, 543 (Fla. 2d DCA 2006). Based on our review of the four corners of the complaint and the limited appendices provided, we cannot say that the trial court's ruling, i.e., that the Cintrons alleged a cause of action under section 395.1041 rather than a medical malpractice claim, departed from the essential requirements of law....
...If grounds for TMRMC’s claim are to be found, then it must be found within the provisions of state and federal law governing the administration and operation of nursing home facilities. TMRMC cites § 1395dd of Title 42 of the United States Code and § 395.1041 of the Florida Statutes in support of its position that the transport of a patient from a nursing home to a hospital for the purpose of avoiding the expense associated with the care of a patient is prohibited....
...Most importantly, § 1395dd contains a provision which permits any medical facility which incurs a financial loss as a direct result of a participating hospital’s violation of § 1395dd to recover its damages under state law in which the hospital is located. 42 U.S.C. § 1395dd(d)(2)(B). Florida Statute § 395.1041 addresses the delivery of emergency medical services and transfers relating thereto within the context of hospital licensing and regulation....
...reatment as a condition of admitting the patient. Id. The section also includes a penalty provision which allows a hospital to recover damages incurred as a result of a physician’s or hospital failure to comply with its requirements. Fla.Stat.Ann. § 395.1041(5)(d) (West 1993) (effective July 1, 1993)....
...See, 42 U.S.C. § 1395x. The state statute similarly provides for a definition of “hospital” that fails to include nursing home facilities. See, Fla.Stat.Ann. § 395.002(12) (West 1993). Even if we were to agree with TMRMC’s assertion that § 1395dd and § 395.1041 prohibited the transfer of a patient by a nursing home with the intent to avoid the expense of caring for the patient, we could find no basis for its claim because TMRMC presented no evidence nor did it argue that the nursing home was not being paid for the services it rendered to Ms....
...All individuals who present at a hospital’s emergency room must be screened for emergency medical conditions and either stabilized or transferred to another medical facility in the event the determination is made that an emergency condition exists. 42 U.S.C. § 1395dd(a); § 395.1041, Fla....
...The GSA, as amended in 2003 and in effect at the time of the incident giving rise to this case, 1 provided in pertinent part: 1.Any health care provider, including a hospital licensed under chapter 395, providing emergency services pursuant to obligations imposed by 42 U.S.C. s. 1395dd, s. 395.1041, s....
...ase because AGH was not providing services to Mr. Stone pursuant to one of the statutes listed in the GSA. The record refutes this tipsy-coachman argument and establishes that AGH was providing services to Mr. Stone pursuant to its obligations under section 395.1041, Florida Statutes....
...(amending section 768.13(2)(d), Florida Statutes, only). . Under this statute, general hospitals with emergency departments are required to provide emergency services and care when requested by another hospital seeking a medically necessary transfer of a patient. See § 395.1041(3)(a)2.b., Fla. Stat. (2004). The hospital's obligation to accept medically necessary transfers includes stabilized patients for whom the benefits of the transfer outweigh the increased risks of the transfer. See § 395.1041(3)(c), Fla....
...Ramsay concluded her amended complaint by alleging that had the
defendants “conducted the appropriate screening and stabilized [her] on
March 27, 2016,” she would not have suffered the damages that she did.
Ramsay alleged that the foregoing behaviors of South Lake, Dr. Neall,
and Dr. Saunders violated section 395.1041, Florida Statutes (2015)....
...as legislative intent the vital importance for emergency services and care to
be provided by hospitals and physicians to every person in need of such
services and found that such persons have been denied emergency services
and care by hospitals. § 395.1041(1), Fla....
...Stat. (2015). 1 The statute further
provided that any person who suffers personal harm as a result of a violation
of this statute may recover damages in a civil action against the responsible
hospital administrative or medical staff or personnel. § 395.1041(5)(b), Fla.
Stat....
...the refusal is made after screening, examining, and
evaluating the patient, and is based on the
determination, exercising reasonable care, that the
person is not suffering from an emergency medical
condition . . . .
§ 395.1041(3)(g), Fla. Stat. (2015).
South Lake and Dr. Neall jointly moved to dismiss the amended
complaint. They argued that Ramsay’s cause of action was actually one for
1
Section 395.1041 has been referred to as Florida’s “patient dumping”
or “anti-dumping” statute....
...repose described within this subsection.
Dr. Saunders separately moved to dismiss Ramsay’s amended
complaint. In addition to the above arguments, Dr. Saunders asserted that,
even if Ramsay’s cause of action could be construed as having been brought
under section 395.1041, it was still barred by the separate four-year statute
of limitations for bringing an action founded on a statutory liability....
...5
the emergency room visit; thus, on the face of the amended complaint, the
claim against her was time-barred.
Ramsay responded to each motion. She maintained that her cause of
action was brought under section 395.1041 and was not a claim for medical
negligence; therefore, the four-year statute of limitations was applicable....
...ial court dismissed the
6
amended complaint with prejudice against South Lake and Dr. Neall. The
court concluded that Ramsay’s amended complaint asserted “factual
allegations of medical negligence, not section 395.1041, Florida Statutes,”
and that since the alleged acts of medical negligence occurred on March 27,
2016, the statute of limitations ha[d] expired on [Ramsay’s] claims.”
STANDARD OF REVIEW—
The standard of review of an order granting a motion to dismiss with
prejudice is de novo....
...Bd.,
275 So. 3d 214, 215 (Fla. 1st DCA 2019).
DISMISSAL OF THE AMENDED COMPLAINT AGAINST DR.
SAUNDERS—
Dr. Saunders argued at the motion to dismiss hearing that, assuming
Ramsay’s amended complaint was brought under section 395.1041, her
2
There were no attachments to Ramsay’s complaint or amended
complaint.
7
cause of action accrued on March 27, 2016, and suit was not filed against
Dr....
...The trial court agreed, orally granted the motion, and
thereafter entered the written final order now under review.
We hold that the trial court correctly dismissed Ramsay’s action
against Dr. Saunders. Accepting Ramsay’s premise that her cause of action
was one solely for a violation of section 395.1041, on the face of the
amended complaint, the statute of limitations to bring such an action had
expired....
...NEALL—
As previously indicated, the trial court’s order of dismissal with
prejudice of Ramsay’s amended complaint against South Lake and Dr. Neall
determined that the amended complaint asserted a claim for medical
negligence, not a violation of section 395.1041, Florida Statutes....
...The accrual of the claim on March 30 does not affect
our analysis or the outcome of this appeal.
4
In his motion to dismiss, Dr. Neall had also raised the same argument
as Dr. Saunders that, assuming Ramsay’s claim was brought under section
395.1041, the four-year statute of limitations had expired when he was also
first added as party in December 2021....
Published | Court of Appeals for the Eleventh Circuit
...§ 1395dd(h).
In keeping with the Florida Legislature’s intent “that emergency services
and care be provided by hospitals and physicians to every person in need of such
7
Case: 13-13917 Date Filed: 08/14/2014 Page: 8 of 15
care,” Fla. Stat. § 395.1041(1), Florida law imposes similar obligations of its own.
One statute, for example, requires every general hospital with an emergency
department to provide emergency care for any emergency condition when “[a]ny
person requests emergency services and care,” regardless of ability to pay. See
Fla. Stat. § 395.1041(3)(a)(1), (f)....
Published | Court of Appeals for the Eleventh Circuit
...appeared on the emergency room doorstep”). One expert from the Heritage
Foundation persuasively illustrated this distinction between health care and other
markets when recommending in 1989 that the government impose a mandate “to
17
See Fla. Stat. Ann. § 395.1041(1); Idaho Code Ann....
This Florida statute resource is curated by Graham W. Syfert, Esq., a Jacksonville, Florida personal injury and workers' compensation attorney. Attorney Syfert regularly works with Chapter 395 in the context of hospital liability and represents clients throughout Northeast Florida. For legal consultation, call 904-383-7448.
