Rescinded 1981

SSR 76-17c: Section 1814(d) (42 U.S.C. 1395f(d))—Hospital Insurance Benefits—Emergency Services

20 CFR 405.152(b), 405.191 and 405.192

SSR 76-17c

Pigford v. Mathews, USDC Southern Dist: Miss., Civil Action No. 1584 (N) (8/14/75)

The claimant was admitted to a nonparticipating hospital for treatment of a fractured knee with surgery being performed 2 days later. No services were performed to prevent death or serious impairment of the health of the claimant upon admission to the hospital and the claimant could have been transferred to a participating hospital a day or two later when a medicare bed became available. In order to determine that emergency services were rendered the Secretary must find (1) that the patient's state of injury or disease is such that a health or life-endangering emergency existed with regard to the claimant's condition and, (2) that diagnosis or treatment was given at the most accessible hospital available and equipped to render such services. Held, reimbursement for the services performed by the non-participating hospital is precluded by section 1814 (d) of the Social Security Act since the services were found not to be covered emergency services as defined in 20 CFR §405.152(b).


This suit is brought pursuant to Section 1869(b) of the Social Security Act, 42 U.S.C. 1395ff(b) by Edith C. Pigford (hereinafter referred to as Claimant) to review a final decision of the Secretary denying her claim for payment for alleged emergency services furnished her by Jeff Anderson Memorial Hospital, Meridian, Mississippi, a nonparticipating hospital under the program of health insurance benefits of Title XVIII of the Act (also known as Medicare) during the period of her confinement from August 7, 1968 through October 4, 1968. This Court has justification under the above section, which provides for a judicial review of a final decision of the Secretary as to the amount of benefits payable under Part A of Title XVIII, with the jurisdictional requirement that the amount in controversy is $1,000.00 or more.

The Claimant entered Jeff Anderson Memorial Hospital in Meridian, Mississippi, a nonparticipating institution in the Medicare program, on August 7, 1968 and remained through October 4, 1968. The total charges incurred for her were $2,765.40. She was admitted for treatment of a broken knee cap. Coverage was denied on the ground that the hospital services furnished to the Claimant were not emergency services as required under Section 1814(d) of the Act, U.S.C. 1395f(d) for a nonparticipating hospital.

Reconsideration was requested and coverage was again denied. The Claimant requesting a hearing before a hearing examiner, which was held on December 4, 1969 and on December 23, 1969 the hearing examiner concluded that the services did not constitute emergency services and affirmed the previous decision of the administration. The Claimant filed a request for a review before the Appeals Council and the Appeals Council declined review of the hearing examiner's decision on September 10, 1970.

The Claimant then sought review before this Court and by an order filed in this cause on June 16, 1971 the case was remanded to the Secretary for further hearing. The supplemental hearing was held on September 28, 1971 and on October 22, 1971 the hearing examiner recommended to the Appeals Council a finding that the services performed on behalf of the Claimant were not emergency services and that the Claimant was not entitled to Medicare payment. The Appeals Council adopted the findings and conclusions in the hearing examiner's decision, with one minor change, not pertinent to this decision, and is now before this Court again for review.

The operative facts are as follows. On August 7, 1968, the Claimant was hospitalized at Jeff Anderson Memorial Hospital with a fractured knee. On the day of the admission, the Claimant, according to the physical examination taken at the time, was well-developed, well-nourished and in no acute pain with normal pulse and respiration and blood pressure of 160/70. Admission to the nonparticipating hospital was made because her physician certified that the Claimant required emergency services to prevent her death or serious impairment of her health and there was no vacancy at the three other Medicare participating hospitals in Meridian, Mississippi. The Claimant was operated on two days after admission to the hospital and after a two month stay was finally released on October 5, 1968.

At the supplemental hearing held on September 28,1971, affidavits were submitted and testimony taken. Dr. Med Scott Brown, the Claimant's physician, certified that she personally contacted the participating hospitals in the area and determined there was no room available; that after making this determination it was her medical opinion that the Claimant was in an emergency situation and it would have been a serious threat to the Claimant's health to require her to be moved from Jeff Anderson Memorial Hospital to a distant hospital, outside the area of Meridian, Mississippi (Emphasis supplied) Dr. William L. Thorton, the operating physician, certified that he performed an operation on the Claimant's right tibia on August 9, 1968 and that, based on his consultation with Dr. Med Scott Brown and his examination of the Claimant, it would have been a serious threat to Claimant's health to have moved her from the nonparticipating hospital to a Medicare participating hospital.

Dr. Wildridge C. Thompson testified at the supplemental hearing as a medical advisor. He stated that on August 7, 1968, the date the Claimant was hospitalized and two days before the surgery was performed, she could have been transferred to a participating hospital within Meridian without hazard. He further testified that, after surgery, there would have been a period of from one to two weeks when a transfer would not have been advisable. Dr. Thompson further testified that her condition was one which had to be attended to in two or three days but not within two or three hours following her admission and it would not have endangered the life of the Claimant or materially have worsened her condition for her to be transferred prior to the operation on her knee.

There were also statements from the three Medicare participating hospitals in Meridian, Mississippi to the effect that a bed was available in each of said institutions on August 7 and August 8, 1968 and a Medicare patient would have been accepted.

The sole issue before this Court is whether the Claimant is entitled to hospital insurance benefits under the Act for emergency services. In order for her to be entitled to reimbursement, a medical emergency must have existed in the instant case, since she was taken to, and treated at, a non-participating hospital [Section 1814(d) of the Act, 42 U.S.C. 1395f(d)]. The term emergency services is defined in Section 405.152(b) of the Regulations of the Social Security Act as "those inpatient hospital services * * * which are necessary to prevent the death or serious impairment of the health of the individual, and which, because of the threat to the life and health of the individual, necessitate the use of the most accessible hospital of the individual, necessitate the use in making a finding of whether the services performed are emergency services. The Regulation notes that time is a crucial factor and the patient must ordinarily receive hospital care as soon as possible. In this case, the Claimant was not operated on until two days after her admission and this Court cannot hold that the services rendered come within the definition of emergency services.

The scope of judicial review of the Secretary's decision is narrowly limited to the issue of whether fact determinations are supported by substantial evidence. 42 U.S.C. 405(g); Hayes v. Celebrezze, 311 F.2d 648 (5 Cir. 1963); Richardson v. Richardson, 437 F.2d 109 (5 Cir. 1970) and Burdett v. Finch, 425 F.2d 687 (1970). Even if this Court, hearing the same evidence de novo, might have held otherwise, the findings of the Secretary are conclusive if supported by substantial evidence. Robinson v. Celebrezze, 326 F.2d 840 (5 Cir.), cert. den. 379 U.S. 851 (1964); Brown v. Celebrezze, 347 F.2d 227 (5 Cir. 1964). Credibility findings as to any conflicts in the evidence are to be made by the Secretary and not by the trial court. Celebrezze v. Zimmerman, 339 F.2d 496 (5 Cir. 1964); Stillwell v. Cohen, 411 F.2d 574 (5 Cir. 1969).

After a careful review of the records, this Court is of the opinion that the findings of the hearing examiner, as recommended to the Appeals Council and adopted by it, are supported by substantial evidence and that the proper legal standards were applied. [*] The decision of the Secretary is therefore affirmed and this motion for summary judgment on behalf of the Secretary of Health, Education and Welfare is granted.

[*] The court implicitly accepted, as supported by substantial evidence, the resolution by the hearing examiner and Appeals Council of conflicting testimony regarding the availability of beds in participating hospitals in favor of the Secretary. (Ed.)