Federal Court holds that a physician is considered an “employee” for purposes of the EMTALA whistleblower protection

Recently, a federal court in the Eastern District of Wisconsin held that a physician who has a medical staff appointment and clinical privileges at a hospital is considered a hospital employee for purposes of the Emergency Treatment and Active Labor Act's (EMTALA) whistleblower protection provision.

In Muzzafar v. Aurora Health Care Southern Lakes, Inc., 2013 U.S. Dist. Lexis 168813, the plaintiff, who did not have an employment agreement with the defendant hospital but who provided on-call coverage for emergency services as a condition of his medical staff appointment at the hospital, sued the hospital claiming that the hospital retaliated against him because he reported patient transfers that violated EMTALA. Because EMTALA has a whistleblower provision that protects hospital employees who report EMTALA violations (42 U.S.C. Section 1395dd(i)), the issue presented was whether the plaintiff (physician) was an employee for purposes of the whistleblower provision.

In answering in the affirmative, the court relied on a 2011 federal court decision that held a physician who had medical staff appointment and clinical privileges was considered an employee for purposes of the whistleblower protection (Zawislak v. Memorial Hermann Hospital System, 2011 U.S. Dist. Lexis 123598).

The court concluded that to find that physicians with a medical staff appointment and clinical privileges in a hospital are not employees of that hospital: would: (1) leave physicians, who are in an “advantageous position” to observe and report potential violations for EMTALA, unprotected; and (2) be “demonstrably at odds” with the purpose of EMTALA — to provide protection to those reporting EMTALA violations.