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Akron Univ. School of Law

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Sunday, July 17, 2005

Newborn EMATLA Screening Case from Wisconsin Supreme Court

On July 13, the Supreme Court of Wisconsin issued its opinion in Preston v. Meriter Hosp., Inc., No. 2003AP1376.  Here is the court's recitation of the facts:

[Shannon] Preston arrived at Meriter Hospital in Madison on November 9, 1999, at 5:33 p.m.  She was 23-and-2/7ths weeks pregnant and had leaked amniotic fluid for a number of days.  At the time of her hospitalization, Preston was unemployed and on Medical Assistance.

Preston was admitted to the hospital and taken to the birthing center.  There, physicians performed an ultrasound to evaluate the unborn child's condition.  At 3:55 a.m. the following morning, Preston gave birth to a son whom she named Bridon Michael Johnson.  The child weighed 700 grams.  The hospital staff made no attempt to prolong the baby's life, and Bridon died two-and-a-half hours later.

Among other things, the trial court heard "that Meriter physicians had determined, based on the prebirth ultrasound, that Bridon's lungs were so underdeveloped that he would likely die shortly after being born.  The court was told health care personnel made observations of Bridon shortly after his birth and assigned Bridon an Apgar score of one."

The EMTALA issue addressed by the court is whether Shannon and Bridon had "come[] to the emergency department" within the meaning of that phrase in EMTALA.  The court said yes:

[W]e conclude that the proper interpretation of "comes to the emergency department" in this case imposes a duty upon a hospital to provide a medical screening examination to a newborn who (1) presents to the emergency room of the hospital or (2) is born in the birthing center of the hospital and otherwise meets the conditions set forth in 42 C.F.R. § 489.24(b) (1999). . . .  The duty to provide a medical screening examination should not depend upon the hospital room——be it the emergency room, the birthing center, or an operating room——into which a baby is born.

Because plaintiffs' EMTALA "duty to screen" claim had been dismissed (after she had told the trial court that hers was a "duty to stabilize" claim only), the court remanded for further proceedings.It will be interesting to see whether the Wisconsin courts decided, á la In re Baby K (WestLaw; requires subscription), that there's no futility exception to EMTALA and that neonatalogists must screen and stabilize a premature newborn with an Apgar score of 1. [tm]

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