HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Wednesday, October 3, 2007

EMTALA and Torture

Interesting tidbit from Professor Jack Goldsmith's testimony yesterday about the"torture memos"-Turns out that the definition used torture came from EMTALA!  Who knew . . .   TPMmuckraker reports:

Much of Goldsmith's difficulties, of course, centered around his efforts to revise earlier Department memos defining torture, such as the infamous 2002 "Bybee memo" (named after Goldsmith's predecessor Jay Bybee) that defined torture as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Goldsmith called that reasoning "severely flawed."

During today's hearing, Sen. Sheldon Whitehouse (D-RI) asked Goldsmith where that definition had come from. "It came from a health care statute designed to define the circumstances under which there was an emergency situation warranting health care benefits," he answered. He explained that "severe pain" is hard to define, and so the lawyers likely cast around for a way to define it -- but that the health care code probably wasn't the best place to look.

Here is the EMTALA statutory language:

"A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in --

placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,

  serious impairment to bodily functions, or

  serious dysfunction of any bodily organ or part, or

  "With respect to a pregnant woman who is having contractions --that there is inadequate time to effect a safe transfer to another hospital before delivery, or that the transfer may pose a threat to the health or safety of the woman or her unborn   child."

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