Fined $100,000for "dumping" patients he couldn't treat
When operating on two accident victims proved impossible,
this surgeon sent them to a trauma center, and was penalized. A court cleared
himeight years later.
By Brad Burg, Senior Editor
At 3:30 am on Sept. 15, 1991, Theodore Cherukuri woke up to a physician's
As the on-call general surgeon for his small-town hospital emergency
room in Williamson, KY, he was needed immediately. There'd been an auto
accident, and some victims were gravely wounded. Driving through the fog,
Cherukuri was on his way to a life crisis of his own, one that would loom
over him personally and professionally for most of a decade. He'd soon face
a four-hour struggle over treatment for those critical patientsa struggle
in which he followed his best medical judgment. But the federal government
later found his judgment wanting, and fined him $100,000 under the so-called
patient dumping law. Not until this spring, when an appeals court finally
backed him up, could he relax.
Other doctors can sleep easier, too, say experts close to Cherukuri's
battle, including a doctor-lawyer who worked on his defense. Paul R. Fowler
of Spartanburg, SC, says, "This case says that doctors who are doing
their best in an emergency situation will not be second-guessed."
Right now, doctors might especially welcome some friendly news in this
area, because in some ways, the courts have toughened the rules on dumping,
and enforcement has been stepped up (see page 111). So let's seebased
on court records and interviews with the principal figureshow this
particular battle was won, and what it means for the practice of medicine.
A small-town ER, overwhelmed by crisis
In the tiny ER at Williamson Appalachian Regional Hospital, Cherukuri
found plenty to deal with on the night of the accident. Two of the five
accident victims were injured only slightly, but three were seriously hurt.
Two of thoseSean Crum and Delmar Millswere in critical condition.
An ER doctor, Pedro Hani, and two nurses were on duty, but Cherukuri would
make the decisions about what to do next.
After examining the patients, he suspected brain injuries. But Williamson
was a regional hospital with about 100 beds, no trauma center, and no neurosurgeon
on staff. Hospital policy was to transport patients with possible brain
injuries to 440-bed St. Mary's, a level II trauma center in nearby Huntington,
However, Cherukuri confronted a problem. After performing peritoneal
lavage, he determined that the two critical patients were bleeding internally.
To stem the bleeding, he wanted to perform exploratory laparotomies, so
a call went out to anesthesiologist John Thambi. But Thambi was hesitant;
he preferred following protocol and transferring the patients. Indeed, he
didn't arrive at the hospital for several hours, and when he did, he still
wasn't persuaded to administer anesthesia. The hospital had no equipment
to measure intracranial pressure, and without checking that, giving anesthetics
to a patient with a possible brain injury could be dangerous. No other anesthesiologist
was available, and hospital administrators were unreachable by phone.
So Cherukuri called St. Mary's. But the surgeon there, Sirous Arya, didn't
favor the transfer, given the patients' condition. Outside, moreover, the
thick fog made helicopter transport impossible, so Crum and Mills would
face an ambulance ride of more than an hour. Cherukuri decided he had to
send the patients, anyway. He explained the situation to their parents,
and by 8 am the young men were on their way to St. Mary's, where they received
treatment. Mills survived, but Crum later died.
Had Cherukuri done anything wrong that night? Some thought so, including
the Department of Health and Human Services. Acting on information received
about the incident, HHS investigated and then charged Cherukuri with violating
the Emergency Medical Treatment and Active Labor Act, on grounds that he'd
improperly transferred the patients. No one claimedat this point or
laterthat the transfer had harmed either patient. Apparently, Crum
would not have survived in any case. Yet the government slapped two $50,000
fines on Cherukuri, one for each patient. It was the highest fine ever imposed
on a physician under EMTALA. The hospital settled a separate EMTALA charge
out of court.
Was there a good case against the doctor?
Although EMTALA is designed to prevent patient dumping for financial
motives, it can involve other issues. The statute is built on if-then logic:
If the patient isn't stabilized, you can transfer him to another hospital
only if you certify that the benefits of the transfer outweigh the risks,
and if the destination hospital accepts the transfer. However, the statute
doesn't apply those conditions when a patient is stabilized.
When Cherukuri got notice of a hearing to decide whether he'd broken
the law, he went to attorney G. Chad Perry of Paintsville, KY, who was outraged
on his behalf. "For heaven's sake, this doctor struggled with a near-impossible
situation for half the night," the lawyer says. "His actions were
During the four-day hearing, some testimonysuch as that of ER nurse
Pat Whiteportrayed the doctor as positively heroic. "Dr. Cherukuri
never stopped" trying to save the patients, she recalled. "It
is not something you will ever forget. . . . I heard Dr. Cherukuri [on the
phone with St. Mary's] explain . . . [that] they needed to go to surgery
and he couldn't do it without anesthesia."
Still, there was much contradiction. For example, Cherukuri said that
at 4 am, he called anesthesiologist Thambi to come in, and nurse White said
she called Thambi three times herself. But Thambi said no one asked him
to appear until 6 am. (He arrived about 6:30.) According to Cherukuri and
White, Thambi refused to administer anesthesia. Thambi denied this and said
he would have given anesthesia if Cherukuri had "insisted." But
the surgeon, he said, seemed "indifferent" to operating.
Stabilization was another disputed area. The statute says "stabilized"
means "no material deterioration" of a patient's condition is
likely to occur during or because of the transfer. Though Cherukuri hadn't
operated to stop the internal bleeding, one nurse present that night said
the patients were stable when they left. Cherukuri's expert witnesses agreed.
The government's experts said the opposite, though. And if they were
right, transfer was improper without express permission from St. Mary's.
Sirous Arya, the surgeon at St. Mary's, testified that he couldn't recall
whether he had agreed to accept the patients. Cherukuri said he had.
The judge finds one person at fault
Despite much contradictory evidence, Administrative Law Judge Mimi Hwang
Leahy decided that Cherukuri was wrong throughout.
For starters, she ruled, he should have forced Thambi to administer anesthesia.
"If a surgeon decides that surgery should be performed, it is the surgeon's
duty to tell the anesthesiologist to administer [anesthesia], and . . .
the surgeon's responsibility to resolve any misunderstandings . . . with
Next, the judge concluded the patients were not stableso Cherukuri
needed acceptance to transfer them to St. Mary's. He didn't have it, she
said. She also found that Cherukuri had deceptively "led [those in
the emergency room] to believe that he had obtained acceptance for the transfers"
during the phone call with Arya.
Judge Leahy also stressed that Cherukuri hadn't complied with the formalities
of transfer. He had instructed nurse White to sign his name. And White later
testified that she did it, because of the emergency situation: "He
was busy at the time [and wearing] sterile gloves . . . and I [prepared
the papers] so there wouldn't be a delay." But the judge evidently
saw Cherukuri's actions as an attempt to avoid responsibility in case the
transport proved disastrous. The judge even determined that the surgeon
hadn't tried to get Thambi to administer anesthesia and hadn't been straight
with the parents when describing the risks of transfer.
Could Cherukuri really have been wrong on every key point? The judge,
who stated that Cherukuri "is not a credible witness," seemed
to think so. She disbelieved many of his recollections or explanations of
the night's events, although that meant she also had to discount much testimony
that supported him, such as nurse White's account.
Testimony the judge seemed to disregard
The judges' ruling notwithstanding, did Cherukuri have any other option
that night? The physicians testifying for the government said he should
have performed exploratory laparotomies on both patients. But they stopped
short of arguing he should have done so without anesthesia, and they couldn't
explain how Cherukuri should have obtained it. General surgeon William I.
Browning, for example, was asked how Cherukuri could have directed Thambi
to cooperate. Browning could only suggest "screaming at him"and
ultimately agreed that Cherukuri had no way to force the issue "short
of physical abuse."
Others concurred. Neurosurgeon Hossein Sakhai of Huntington, WV, makes
the same point now that he made in court as a witness for the doctor: "You
can't force an anesthesiologist to do his work. So Cherukuri did nothing
wrong in transferring." Surgeon Steve Aaron of Louisville, another
witness for Cherukuri, agrees: "As for getting an administrator to
make the doctor performthat's laughable. The anesthesiologist makes
At the trial, perhaps the strongest defense of Cherukuri's actions came
from what might have seemed a compelling source: Sirous Arya, the surgeon
at St. Mary's. Arya had been ambiguous about whether he'd agreed to accept
the patients when Cherukuri called for permission to transfer them. Yet
at the trial, he repeatedly insisted that as soon as he'd learned all the
facts, he felt Cherukuri had had no choice:
Dr. Arya: . . . You have a patient, and you need to operate, but [the
anesthesiologist] doesn't want to put him to sleep, I don't know what choice
you have. . . .
Judge Leahy: But would you just transfer the patient?
Arya: You have to, you have to do something.
Leahy: Wouldn't you get the consent of the surgeon who is supposed to
be receiving, first?
Of course, that surgeon would have been Arya himself. But he said:
Arya: Yeah, but that comes more like paperwork. Bear in mind, you have
to do something with the patient, he is dying. . . . And he made the decision
to send the patient over. . . . I don't know what other choice he had.
Leahy: So you think the consent of the receiving surgeon and the receiving
hospital are merely paperwork?
Arya: No . . . they are very, very important. . . . But I mean, I wouldn't
blame him for sending the patient over, because the patient would have died
there without surgery.
The judge, in fining Cherukuri, did make one concession: She didn't revoke
his Medicare privileges. The government had argued for revocation, on the
grounds that the doctor had committed "repeated" violations. Why?
Because the case involved two patients.
The doctor's expenses use up his assets
A costly appeal followed. "The government probably put $200,000
to $300,000 into its argument," estimates Cherukuri's first attorney,
Chad Perry. Although he minimized his own fees, Perry says, the physician
still went through much of his own savings.
Indeed, Cherukuri was so strapped that his children took time off from
college to help Perry research briefs for their father's case. Perry also
recruited attorney Paul Fowler, who worked for partial fees.
Fowler then brought in a consultant, Elliot B. Oppenheim of Santa Fe,
for his expertise on EMTALA. Oppenheim, who also worked for reduced fees,
led in preparing a 279-page brief, which was filed with the Departmental
Appeals Board of HHS. But it was the board's response that was truly brief.
"In about 15 lines," recalls Oppenheim, "they declined to
review the case. With no reason." The doctor then had little choice
but to appeal to the US Court of Appeals for the 6th Circuit, based in Cincinnati.
Cherukuri had other allies, too: The AMA, the American College of Surgeons,
and the American College of Emergency Physicians filed briefs in support,
written by the Washington, DC, office of Jenner & Block, which would
also handle the oral argument and write later briefs for Cherukuri. Robert
M. Portman of that firm says, "We found the administrative law judge's
opinion startling. First, she seemed out-and-out hostile toward the doctor.
And her conclusions represent a tremendous interference with the practice
of medicinefirst by second-guessing his judgment, and then by suggesting
he could force the anesthesiologist to provide anesthesia."
Vindication from a federal court
The 6th Circuit decision, handed down last May, said the administrative
law judge's decision was wrongand Cherukuri righton every essential
issue. In addition, the decision explicitly extends the freedom of doctors
and hospitals to decide what "stabilization" means.
The 6th Circuit opinion said the law did not require Cherukuri
to "force Dr. Thambi against his will to administer anesthesia."
On the contrary, "nothing in EMTALA demands such a confrontation, and
for good reasons." The decision then quoted a medical text on the danger
of giving anesthesia when head injuries are present. In short, the court
recognized that doctors can have valid disagreements.
As for stabilization, since the ER had normalized the patients' blood
pressure to provide sufficient blood to internal organs, the "on-the-spot
risk analysis by Dr. Cherukuri leading to transfer was appropriate"
under the circumstances. According to the 6th Circuit, the government's
positionthat internal bleeding, by definition, indicates a patient
isn't stablewas too inflexible. "The statutory definition of
'stabilize' requires a flexible standard of reasonableness that depends
on the circumstances . . . and the rigidity of the [government's argument]
on this subject is misplaced."
On the issue of permission for the transfer, the court refused to quibble.
It said, "the record does not quite bear out a conclusion that he acted
in bad faith." The court concluded, "Dr. Cherukuri acted properly
under very trying and difficult circumstances and should be exonerated of
The court quoted at length Arya's interchange with Judge Leahy, in which
Arya defended Cherukuri's decision. The decision notes that the judge did
not mention this testimony "in her long opinion repeatedly condemning
Dr. Cherukuri." The court also lambasted the HHS appeal board for failing
to review this "important case" without explanation.
Is a clear signal being sent?
Today, Cherukuri is relieved but somewhat soured by his long fight. "It's
easy to criticize doctors after a crisis," he says. "But think
of this: The reluctance to provide anesthesiawas that 'internal dumping'?
The reluctance of St. Mary's to accept the transferwas that 'reverse
dumping'? All I can say is, it was a terrible night. Everything went against
meit was late, it was foggy, and key people were impossible to reach."
And for other physicians, what does the case mean?
"It establishes a flexible and reasonable standard for stabilizing,
and hence transferring, patients," notes doctor-lawyer Paul Fowler.
"In explicitly deciding that 'stabilize' can't be narrowly defined,
the court clarified that it depends on a doctor's judgment and on the situation
at hand." Indeed, Fowler adds that "after this case, the government
must show that a doctor was negligent in transferring" before deciding
that a violation has occurred.
That certainly doesn't mean the government won't carefully watch what
you do. Since patient dumping means to turn away patients for discriminatory
reasonsrace, gender, or apparent povertyyou might think that
EMTALA should apply only to such situations. Not so. A few months before
the Cherukuri case was resolved, the US Supreme Court ruled that EMTALA
cases require no such "motive."
Still, the consensus seems to be that because of this case, doctors can
expect a broader understanding of the decisions they make under pressure.
Chad Perry says, "I sure hope so. If I had children, I wouldn't want
to see one spend 12 to 14 years working to become a doctor, to be abused
In clearing surgeon Theodore Cherukuri of a patient-dumping charge this
spring, the 6th Circuit issued a ruling that specifically says doctors have
the flexibility to decide when patients are sufficiently stabilized to be
transferred to another facility. So physicians can be less concerned about
the government's second-guessing them arbitrarily. The court came down hard,
not just on the Health and Human Services judge who fined Cherukuri, but
on that department's internal appeal board: "We respectfully suggest
that the Board should review cases like this one closely and should not
simply pass them on to a federal appellate court."
But HHS officials still believe that the administrative law judge who
fined the surgeon $100,000 made the right decision. D. McCarty Thornton,
chief counsel of the Office of Inspector General in HHS, provided the following
statement to Medical Economics::
First, the Cherukuri case is the first case where the OIG has not been
successful in a patient-dumping penalty case. There have been a total of
189 dumping cases, mostly resolved by settlements.
Second, we do not bring dumping cases that involve medical issues unless
well-qualified physician reviewers advise us to. The physician reviewers
told us the patients in this case did not get appropriate care, and the
trial judge believed our physician witnesses.
Third, while we accept the Appeals Court's ruling, we respectfully disagree.
Normally, the Appeals Court will defer to the factual findings of the trial
judge, who had the benefit of observing the demeanor and evaluating the
credibility of the witnesses in person. The Appeals Court did not do so
in this case.
Finally, the Office of Inspector General remains fully committed to
ensuring that Medicare, Medicaid, and other patients receive the emergency
care to which they are entitled, and we intend to continue to enforce the
patient anti-dumping laws in as fair and unbiased a manner as possible.
Doctors should also be aware that "dumping" may be an issue
even when there's no question of discriminationa point made by a Supreme
Court case earlier this year. In addition, enforcement of the patient-dumping
act has been increasing greatly in recent years, partly because more staff
money is available, says the OIG's Alwyn Cassil. Throughout most of the
late '80s and early '90s, there were generally fewer than 10 settlements
per year, Cassil says. But in the two most recent fiscal years, the numbers
jumped to 53 and 61. "In each of the last two years, only three cases
involved doctors," Cassil says. "So, contrary to some reports,
we are not singling out physicians. But we are increasing enforcement generally."
Could you recover legal fees if the government wrongfully pursues you?
The Department of Health and Human Services has announced that it intends
to hunt more extensively for instances of patient dumping (see The government is still watching closely). On another front,
the Medicare fraud and abuse police are zealously looking for violations.
What if you become an unjustified target of government scrutiny? Theodore
Cherukuri, the surgeon just vindicated in court, spent many thousands on
legal bills. If that were to happen to you, could you get your money back?
It's not easy, as Cherukuri has found. He sued for recovery of those
fees under the Equal Access to Justice Act, explains his Washington attorney,
Robert M. Portman. "That course is open to you if the government goes
after you in any civil action other than courtincluding actions by
regulatory agenciesand its position proves to have been substantially
Portman's firm was involved on a pro bono basis in Cherukuri's successful
appeal of patient-dumping charges. On the same basis, it later sought government
reimbursement for its fees and expenses, and for the doctor's, too. There
seemed good reason to try: In clearing Cherukuri of EMTALA charges, the
6th Circuit had severely criticized the government for pursuing its case
against the doctor.
Yet the same 6th Circuit has now refused to make the government pay the
other side's fees and expenses. Sure, the court says, the government was
wrong: "[We] continue to believe that the decision of the Administrative
Law Judge" against the doctor was "arbitrary and capricious,"
and should have been reversed by an administrative appellate board.
However, the court also believed that the government had good reason
to think its case was valid, until late in the game, when some government
witnesses reversed their opinions. Moreover, the government's "somewhat
inflexible interpretation of EMTALA," while erroneous, wasn't "substantially
unjustified," the court said. Too bad, Doctor.
. Fined $100,000--for "dumping" patients he couldn't treat. Medical Economics 1999;22:106.