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Wisconsin District Court Extends EMTALA Whistleblower Protections to Non-Employee Physicians – Muzaffar v. Aurora Health Care Southern Lakes, Inc.

Wisconsin District Court Extends EMTALA Whistleblower Protections to Non-Employee Physicians - Muzaffar v. Aurora Health Care Southern Lakes, Inc.1 - On November 27, 2013, the United States District Court for the Eastern District of Wisconsin held that a non-employee physician who has been extended privileges at a hospital is an employee of that hospital for purposes of the Emergency Medical Treatment and Active Labor Act's (EMTALA) whistleblower provision.2 The decision, which prevents hospitals from retaliating against privileged physicians who report alleged EMTALA violations, changes the landscape of incentives with respect to illegal patient dump ing under the law.EMTALA requires hospitals that participate in Medicare and offer emergency services to provide stabilizing treatment for patients with emergency medical conditions.3 The law was intended to prevent hospitals from refusing to provide emergency medical care to patients who are unable to pay, or transferring them before their emergency conditions are stabilized -often referred to as "patient dumping."4 EMTALA contains both a private right of action for individuals harmed by violations of the statute5 and a whistleblower provision6 designed "to ensure that such persons are not penalized or retaliated against for reporting violations of EMTALA's terms." 7The plaintiff in this case, Dr. Kamal Muzaffar (Dr. Muzaffar), brought a lawsuit against Aurora Health Care Southern Lakes (Aurora), claiming that Aurora retaliated against him because he reported patient transfers that he believed violated EMTALA.8 Dr. Muzaffar was a member of the medical staff and had admitting privileges at Aurora Lakeland, a subsidiary hospital of Aurora.9 At the time he observed the alleged violations, he was providing on -call coverage for emergency services at Aurora.10 A physician from another hospital requested that a patient be transferred to Aurora.11 Despite Dr. Muzaffar 's refusal to authorize the transfer, the requesting physician proceeded to send the patient to Aurora.12 Two additional transfers occurred on the same day, which Dr. Muzaffar did not learn about until later.13 After these incidents occurred, Dr. Muzaffar re ported to Aurora's medical executive committee (MEC) that he believed the three transfers violated EMTALA.14Dr. Muzaffar's complaint, filed in District Court for the Eastern District of Wisconsin, stated that Aurora retaliated against him for reporting the alleged violations.15 Aurora filed a motion to dismiss for lack of subject matter jurisdiction, arguing that Dr. Muzaffar raised no federal question under the EMTALA whistleblower provision.16 The provision states that "[a] participating hospital may not penalize or take adverse action against . . . any hospital employee because the employee reports a violation . . . ." 17 Aurora argued that Dr. Muzaffar was not its employee, but was merely an independent physician with admitting privileges. 18To this end, Aurora argued that courts should treat employment determinations under EMTALA similarly to determinations under Title VII of the Civil Rights Act ("Title VII").19 Seventh Circuit Title VII precedent applies a common law agency test to determine whether a staff physician is a hospital employee.20 Aurora argued that Dr. Muzaffar was not its employee under the agency test because Aurora did not compensate Dr. Muzaffar, pay his medical malpractice insurance premiums, provide him with office space, bill his patients, pay his income or social security taxes, or provide him with paid vacation.21 Moreover, Dr. Muzaffar's application for privileges lists his primary office, mailing address, and billing address as the Elkhorn Family Clinic, S.C.22 Finally, Dr. Muzaffar was not required to admit his patients to Aurora and was free to associate himself with another hospital. 23 Opposing the motion, Dr. Muzaffar argued that he was an employee of Aurora with respect to EMTALA's whistleblower provision because an alternate finding w ould contravene the purposes of the statute. …