Fined $100,000--for "dumping" patients he couldn't treat

November 22, 1999

When operating on two accident victims proved impossible, this surgeon sent them to a trauma center, and was penalized. A court cleared him--eight years later.

Fined $100,000—for "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 clearedhim—eight years later.

By Brad Burg, Senior Editor

At 3:30 am on Sept. 15, 1991, Theodore Cherukuri woke up to a physician'snightmare.

As the on-call general surgeon for his small-town hospital emergencyroom in Williamson, KY, he was needed immediately. There'd been an autoaccident, 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 loomover him personally and professionally for most of a decade. He'd soon facea four-hour struggle over treatment for those critical patients—a strugglein which he followed his best medical judgment. But the federal governmentlater found his judgment wanting, and fined him $100,000 under the so-calledpatient dumping law. Not until this spring, when an appeals court finallybacked him up, could he relax.

Other doctors can sleep easier, too, say experts close to Cherukuri'sbattle, including a doctor-lawyer who worked on his defense. Paul R. Fowlerof Spartanburg, SC, says, "This case says that doctors who are doingtheir best in an emergency situation will not be second-guessed."

Right now, doctors might especially welcome some friendly news in thisarea, because in some ways, the courts have toughened the rules on dumping,and enforcement has been stepped up (see page 111). So let's see—basedon court records and interviews with the principal figures—how thisparticular 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, Cherukurifound plenty to deal with on the night of the accident. Two of the fiveaccident victims were injured only slightly, but three were seriously hurt.Two of those—Sean Crum and Delmar Mills—were in critical condition.An ER doctor, Pedro Hani, and two nurses were on duty, but Cherukuri wouldmake the decisions about what to do next.

After examining the patients, he suspected brain injuries. But Williamsonwas a regional hospital with about 100 beds, no trauma center, and no neurosurgeonon staff. Hospital policy was to transport patients with possible braininjuries to 440-bed St. Mary's, a level II trauma center in nearby Huntington,WV.

However, Cherukuri confronted a problem. After performing peritoneallavage, he determined that the two critical patients were bleeding internally.To stem the bleeding, he wanted to perform exploratory laparotomies, soa call went out to anesthesiologist John Thambi. But Thambi was hesitant;he preferred following protocol and transferring the patients. Indeed, hedidn't arrive at the hospital for several hours, and when he did, he stillwasn't persuaded to administer anesthesia. The hospital had no equipmentto measure intracranial pressure, and without checking that, giving anestheticsto a patient with a possible brain injury could be dangerous. No other anesthesiologistwas available, and hospital administrators were unreachable by phone.

So Cherukuri called St. Mary's. But the surgeon there, Sirous Arya, didn'tfavor the transfer, given the patients' condition. Outside, moreover, thethick fog made helicopter transport impossible, so Crum and Mills wouldface an ambulance ride of more than an hour. Cherukuri decided he had tosend 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 receivedtreatment. Mills survived, but Crum later died.

Had Cherukuri done anything wrong that night? Some thought so, includingthe Department of Health and Human Services. Acting on information receivedabout the incident, HHS investigated and then charged Cherukuri with violatingthe Emergency Medical Treatment and Active Labor Act, on grounds that he'dimproperly transferred the patients. No one claimed—at this point orlater—that the transfer had harmed either patient. Apparently, Crumwould not have survived in any case. Yet the government slapped two $50,000fines on Cherukuri, one for each patient. It was the highest fine ever imposedon a physician under EMTALA. The hospital settled a separate EMTALA chargeout of court.

Was there a good case against the doctor?

Although EMTALA is designed to prevent patient dumping for financialmotives, 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 hospitalonly if you certify that the benefits of the transfer outweigh the risks,and if the destination hospital accepts the transfer. However, the statutedoesn't apply those conditions when a patient is stabilized.

When Cherukuri got notice of a hearing to decide whether he'd brokenthe law, he went to attorney G. Chad Perry of Paintsville, KY, who was outragedon his behalf. "For heaven's sake, this doctor struggled with a near-impossiblesituation for half the night," the lawyer says. "His actions werecompletely reasonable."

During the four-day hearing, some testimony—such as that of ER nursePat White—portrayed the doctor as positively heroic. "Dr. Cherukurinever stopped" trying to save the patients, she recalled. "Itis not something you will ever forget. . . . I heard Dr. Cherukuri [on thephone with St. Mary's] explain . . . [that] they needed to go to surgeryand he couldn't do it without anesthesia."

Still, there was much contradiction. For example, Cherukuri said thatat 4 am, he called anesthesiologist Thambi to come in, and nurse White saidshe called Thambi three times herself. But Thambi said no one asked himto appear until 6 am. (He arrived about 6:30.) According to Cherukuri andWhite, Thambi refused to administer anesthesia. Thambi denied this and saidhe would have given anesthesia if Cherukuri had "insisted." Butthe 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 islikely to occur during or because of the transfer. Though Cherukuri hadn'toperated to stop the internal bleeding, one nurse present that night saidthe patients were stable when they left. Cherukuri's expert witnesses agreed.

The government's experts said the opposite, though. And if they wereright, transfer was improper without express permission from St. Mary's.Sirous Arya, the surgeon at St. Mary's, testified that he couldn't recallwhether 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 HwangLeahy 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'sduty to tell the anesthesiologist to administer [anesthesia], and . . .the surgeon's responsibility to resolve any misunderstandings . . . withthe anesthesiologist."

Next, the judge concluded the patients were not stable—so Cherukurineeded acceptance to transfer them to St. Mary's. He didn't have it, shesaid. She also found that Cherukuri had deceptively "led [those inthe 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 formalitiesof transfer. He had instructed nurse White to sign his name. And White latertestified that she did it, because of the emergency situation: "Hewas busy at the time [and wearing] sterile gloves . . . and I [preparedthe papers] so there wouldn't be a delay." But the judge evidentlysaw Cherukuri's actions as an attempt to avoid responsibility in case thetransport proved disastrous. The judge even determined that the surgeonhadn't tried to get Thambi to administer anesthesia and hadn't been straightwith 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," seemedto think so. She disbelieved many of his recollections or explanations ofthe night's events, although that meant she also had to discount much testimonythat supported him, such as nurse White's account.

Testimony the judge seemed to disregard

The judges' ruling notwithstanding, did Cherukuri have any other optionthat night? The physicians testifying for the government said he shouldhave performed exploratory laparotomies on both patients. But they stoppedshort of arguing he should have done so without anesthesia, and they couldn'texplain how Cherukuri should have obtained it. General surgeon William I.Browning, for example, was asked how Cherukuri could have directed Thambito cooperate. Browning could only suggest "screaming at him"—andultimately agreed that Cherukuri had no way to force the issue "shortof physical abuse."

Others concurred. Neurosurgeon Hossein Sakhai of Huntington, WV, makesthe same point now that he made in court as a witness for the doctor: "Youcan't force an anesthesiologist to do his work. So Cherukuri did nothingwrong in transferring." Surgeon Steve Aaron of Louisville, anotherwitness for Cherukuri, agrees: "As for getting an administrator tomake the doctor perform—that's laughable. The anesthesiologist makesthat decision."

At the trial, perhaps the strongest defense of Cherukuri's actions camefrom what might have seemed a compelling source: Sirous Arya, the surgeonat St. Mary's. Arya had been ambiguous about whether he'd agreed to acceptthe patients when Cherukuri called for permission to transfer them. Yetat the trial, he repeatedly insisted that as soon as he'd learned all thefacts, he felt Cherukuri had had no choice:

Dr. Arya: . . . You have a patient, and you need to operate, but [theanesthesiologist] doesn't want to put him to sleep, I don't know what choiceyou 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 tobe 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 haveto do something with the patient, he is dying. . . . And he made the decisionto 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 receivinghospital are merely paperwork?

Arya: No . . . they are very, very important. . . . But I mean, I wouldn'tblame him for sending the patient over, because the patient would have diedthere without surgery.

The judge, in fining Cherukuri, did make one concession: She didn't revokehis Medicare privileges. The government had argued for revocation, on thegrounds 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 $200,000to $300,000 into its argument," estimates Cherukuri's first attorney,Chad Perry. Although he minimized his own fees, Perry says, the physicianstill went through much of his own savings.

Indeed, Cherukuri was so strapped that his children took time off fromcollege to help Perry research briefs for their father's case. Perry alsorecruited 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 DepartmentalAppeals Board of HHS. But it was the board's response that was truly brief."In about 15 lines," recalls Oppenheim, "they declined toreview the case. With no reason." The doctor then had little choicebut 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 wouldalso handle the oral argument and write later briefs for Cherukuri. RobertM. Portman of that firm says, "We found the administrative law judge'sopinion startling. First, she seemed out-and-out hostile toward the doctor.And her conclusions represent a tremendous interference with the practiceof medicine—first by second-guessing his judgment, and then by suggestinghe could force the anesthesiologist to provide anesthesia."

Vindication from a federal court

The 6th Circuit decision, handed down last May, said the administrativelaw judge's decision was wrong—and Cherukuri right—on every essentialissue. In addition, the decision explicitly extends the freedom of doctorsand hospitals to decide what "stabilization" means.

The 6th Circuit opinion said the law did not require Cherukurito "force Dr. Thambi against his will to administer anesthesia."On the contrary, "nothing in EMTALA demands such a confrontation, andfor good reasons." The decision then quoted a medical text on the dangerof giving anesthesia when head injuries are present. In short, the courtrecognized that doctors can have valid disagreements.

As for stabilization, since the ER had normalized the patients' bloodpressure to provide sufficient blood to internal organs, the "on-the-spotrisk analysis by Dr. Cherukuri leading to transfer was appropriate"under the circumstances. According to the 6th Circuit, the government'sposition—that internal bleeding, by definition, indicates a patientisn't stable—was too inflexible. "The statutory definition of'stabilize' requires a flexible standard of reasonableness that dependson 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 actedin bad faith." The court concluded, "Dr. Cherukuri acted properlyunder very trying and difficult circumstances and should be exonerated ofany wrongdoing."

The court quoted at length Arya's interchange with Judge Leahy, in whichArya defended Cherukuri's decision. The decision notes that the judge didnot mention this testimony "in her long opinion repeatedly condemningDr. Cherukuri." The court also lambasted the HHS appeal board for failingto review this "important case" without explanation.

Is a clear signal being sent?

Today, Cherukuri is relieved but somewhat soured by his long fight. "It'seasy to criticize doctors after a crisis," he says. "But thinkof this: The reluctance to provide anesthesia—was that 'internal dumping'?The reluctance of St. Mary's to accept the transfer—was that 'reversedumping'? All I can say is, it was a terrible night. Everything went againstme—it 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 situationat hand." Indeed, Fowler adds that "after this case, the governmentmust show that a doctor was negligent in transferring" before decidingthat a violation has occurred.

That certainly doesn't mean the government won't carefully watch whatyou do. Since patient dumping means to turn away patients for discriminatoryreasons—race, gender, or apparent poverty—you might think thatEMTALA should apply only to such situations. Not so. A few months beforethe Cherukuri case was resolved, the US Supreme Court ruled that EMTALAcases require no such "motive."

Still, the consensus seems to be that because of this case, doctors canexpect a broader understanding of the decisions they make under pressure.Chad Perry says, "I sure hope so. If I had children, I wouldn't wantto see one spend 12 to 14 years working to become a doctor, to be abusedlike this."

The government is still watching closely

In clearing surgeon Theodore Cherukuri of a patient-dumping charge thisspring, the 6th Circuit issued a ruling that specifically says doctors havethe flexibility to decide when patients are sufficiently stabilized to betransferred to another facility. So physicians can be less concerned aboutthe government's second-guessing them arbitrarily. The court came down hard,not just on the Health and Human Services judge who fined Cherukuri, buton that department's internal appeal board: "We respectfully suggestthat the Board should review cases like this one closely and should notsimply pass them on to a federal appellate court."

But HHS officials still believe that the administrative law judge whofined the surgeon $100,000 made the right decision. D. McCarty Thornton,chief counsel of the Office of Inspector General in HHS, provided the followingstatement 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 issueeven when there's no question of discrimination—a point made by a SupremeCourt case earlier this year. In addition, enforcement of the patient-dumpingact has been increasing greatly in recent years, partly because more staffmoney is available, says the OIG's Alwyn Cassil. Throughout most of thelate '80s and early '90s, there were generally fewer than 10 settlementsper year, Cassil says. But in the two most recent fiscal years, the numbersjumped to 53 and 61. "In each of the last two years, only three casesinvolved 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 intendsto 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? TheodoreCherukuri, the surgeon just vindicated in court, spent many thousands onlegal 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 thosefees under the Equal Access to Justice Act, explains his Washington attorney,Robert M. Portman. "That course is open to you if the government goesafter you in any civil action other than court—including actions byregulatory agencies—and its position proves to have been substantiallyunjustified."

Portman's firm was involved on a pro bono basis in Cherukuri's successfulappeal of patient-dumping charges. On the same basis, it later sought governmentreimbursement for its fees and expenses, and for the doctor's, too. Thereseemed good reason to try: In clearing Cherukuri of EMTALA charges, the6th Circuit had severely criticized the government for pursuing its caseagainst the doctor.

Yet the same 6th Circuit has now refused to make the government pay theother side's fees and expenses. Sure, the court says, the government waswrong: "[We] continue to believe that the decision of the AdministrativeLaw 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 reasonto think its case was valid, until late in the game, when some governmentwitnesses reversed their opinions. Moreover, the government's "somewhatinflexible interpretation of EMTALA," while erroneous, wasn't "substantiallyunjustified," the court said. Too bad, Doctor.

. Fined $100,000--for "dumping" patients he couldn't treat. Medical Economics 1999;22:106.