State limitations on medical malpractice recoveries seem to be under almost daily attack.  The latest serious threat comes from Louisiana, where a federal district court has authorized an interlocutory appeal of his ruling that an Emergency Medical Treatment & Labor Act (EMTALA) claim is subject to the La. med mal cap.

EMTALA is the federal statute that requires Medicare-certified hospitals with ERs to provide access to emergency services regardless of ability to pay.

The Scotts’ daughter reported to the Northern La. Med Center ER in the early hours of August 14 complaining of neurological deficiencies in her lower and upper extremities.  The examining physician ordered an MRI, but it was not performed until after 3 PM.  The test ultimately showed a hematoma on the spinal cord.  The daughter developed permanent paralysis and other severe symptoms.

The parents filed a med mal case in state court.  After the doctor’s deposition testimony, they concluded that the MRI delay was based on a hospital policy of postponing such tests until insurance coverage was verified.  At that point they filed an EMTALA case in federal district court.

The district granted a defense motion (1) to stay the case pending the outcome of the medical review panel in the state court case and (2) dismissing plaintiffs’ claim that their federal action was not subject to the state med mal cap.

When the plaintiffs moved for an interlocutory appeal of the order to the Fifth Circuit and the defense didn’t oppose the motion, the court granted it.  The court concluded that the issue of  applicability of the cap is a controlling question of law with substantial ground for difference of opinion, citing a ruling by another Louisiana federal court that an EMTALA case was not subject to the med mal cap.

The case is Scott v. Ruston La. Hosp., No. 3:16-cv-376 (E.D. La., Apr. 12, 2017).