Cruz-Vázquez v. Mennonite General Hospital, Inc. ( 2013 )

United States Court of Appeals
For the First Circuit
No. 11-2297
HAZEL I. CRUZ-VÁZQUEZ; RAÚL A. CRUZ-RIVERA; LUCY I.
VÁZQUEZ-RIVERA; CONJUGAL PARTNERSHIP CRUZ-VÁZQUEZ;
BENJAMÍN MARTÍNEZ-REYES; BENJAMÍN MARTÍNEZ-MORALES;
NITZA I. REYES; CONJUGAL PARTNERSHIP MARTÍNEZ-REYES,
Plaintiffs, Appellants,
v.
MENNONITE GENERAL HOSPITAL, INC.; DR. BRENDA M. TORRES-PÉREZ;
JOHN DOE; CONJUGAL PARTNERSHIP DOE-TORRES; DR. EDUARDO GÓMEZ-
TORRES; JANE DOE; CONJUGAL PARTNERSHIP DOE-GÓMEZ; ADVANCED
OB-GYN, PCS; SIMED; COMPANIES A-Z; PETER POE; MARY MOE,
Defendants, Appellees,
MINERVA DÍAZ-ARISTUD; CONJUGAL PARTNERSHIP GÓMEZ-DÍAZ,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Lipez and Howard,
Circuit Judges.
Pedro F. Soler-Muñiz for appellants.
Anselmo Irizarry-Irizarry, with whom Matta & Matta, PSC, was
on brief for appellees.
May 29, 2013
TORRUELLA, Circuit Judge. This appeal concerns whether
the district court erred in dismissing a disparate screening claim
under the Emergency Medical Treatment and Active Labor Act
("EMTALA"), 42 U.S.C. § 1395dd. After carefully reviewing the
record, we vacate the district court's dismissal and remand for
further proceedings.
I. Background
A. Factual Background
1. Cruz-Vázquez's Medical Treatment
At around 10:15 p.m. on January 4, 2007, Plaintiff-
Appellant Hazel Cruz-Vázquez ("Cruz-Vázquez"), then in her third
trimester of her first pregnancy, arrived at the emergency room of
Defendant-Appellee Mennonite General Hospital ("Mennonite")
requesting medical services. She complained of vaginal discharge
and blood spotting but denied experiencing pelvic pain, dysuria or
feverishness. Cruz-Vázquez also felt fetal movement upon her
arrival to the emergency room. She was evaluated by the on-duty
emergency physician, Dr. Brenda M. Torres-Pérez ("Dr. Torres"), who
performed a pelvic exam and found that Cruz-Vázquez's cervix was
not dilated. No other exams were performed.
At around 10:55 p.m., Dr. Torres called Cruz-Vázquez's
obstetrician, Dr. Eduardo Gómez-Torres ("Dr. Gómez"), who advised
Dr. Torres to administer 0.25mg of Bretine and 50mg of Visatryl, to
discharge Cruz-Vázquez in stable condition, and to instruct her to
-2-
follow up at his private office the following morning at 8:00 a.m.
Dr. Torres followed those instructions. Cruz-Vázquez was
discharged and sent home on January 5, 2007, at 12:15 a.m., less
than two hours after her arrival. Cruz-Vázquez's condition was
recorded in the medical record as "discharge condition stable."
Cruz-Vázquez was seen the following morning at 8:14 a.m.
by Dr. Gómez in his private office. She complained of continued
blood spotting but no pelvic pain. Dr. Gómez performed a pelvic
exam which revealed a blood collection pool in her vagina and
cervix dilation of seven centimeters. Cruz-Vázquez's fetus was
floating in breech position. Dr. Gómez diagnosed Cruz-Vázquez as
suffering from an incompetent cervix, and he recommended that she
be transferred to another hospital.1 Cruz-Vázquez agreed, and she
was transferred in stable condition.
Following admission to the San Juan City Hospital that
morning, Cruz-Vázquez underwent a cesarean section. Her baby was
born a living baby girl at 12:12 p.m. The baby died on January 7,
2007, at 7:57 a.m., due to unspecified reasons.
2. Mennonite's Hospital Protocol
At the time of these facts, Mennonite had in place, and
in full force and effect in all of its facilities, a "Gravid with
1
It is uncontested that incompetent cervix is a diagnosis given
to patients who have had two or more pregnancy losses in the second
trimester of pregnancy. When a patient suffers from an incompetent
cervix, her cervix is unable to retain a pregnancy in the absence
of contractions or labor.
-3-
3rd Trimester Bleeding" protocol (the "Protocol") which required
that a number of tests and examinations be performed on a patient
presenting bleeding in her third trimester of pregnancy. The
Protocol indicated, for example, that a speculum exam and
examination for a rupture of membranes be performed, and that a
number of laboratory tests be conducted.2
Mennonite has stipulated that the Protocol was in place
when Cruz-Vázquez was examined on January 4, 2007, and that it
failed to activate or follow that Protocol in her case, including
its requirement that certain tests and laboratory studies be
2
Mennonite's Protocol listed the following screening procedures
for patients presenting vaginal bleeding in their third trimester:
1. 3rd trimester bleeding must be differentiated from
bloody show by speculum exam;
2. The most likely diagnosis of 3rd trimester bleeding is
placenta previa or abruption;
3. The gestational age must be determined;
4. Look for rupture of membranes;
5. Fetal movements;
6. Fetal heart rate tomes by Doppler must be measured;
7. Vital signs as blood pressure, pulse and temperature
must be acquired;
8. The following laboratories must be practiced:
a. CBC
b. Urinalisys
c. Serology
d. PT, PTT
e. Platelet count
f. T & Screen or cross match
g. Serum fibrinogen, fibrin split product of
hemorrhage only if > B/P (preeclampsia, eclampsia).
9. Open a vein with a catheter;
10. Start ringer Lactate at 125 cc/hr;
11. Send patient to LR in stretcher.
-4-
performed on patients presenting vaginal bleeding in their third
trimester.
B. Procedural History
Cruz-Vázquez3 filed a complaint in the United States
District Court for the District of Puerto Rico alleging that she
arrived at the emergency department of Mennonite on January 4,
2007, with an emergency medical condition as defined by EMTALA, 42
U.S.C. § 1395dd(e)(1); that Mennonite failed to screen her
appropriately, as required under 42 U.S.C. § 1395dd(a); and that
Mennonite failed to stabilize or properly transfer her before
release on January 5, 2007, thus violating the requirements of 42
U.S.C. § 1395dd(b).
This case has followed a tortured history subsequent to
that filing. In March 2009, over a year after the original
complaint was filed, Cruz-Vázquez's case proceeded to trial. The
trial was truncated by the dismissal of Cruz-Vázquez's expert, Dr.
Carlos Ramírez, on the trial's fourth day, following Mennonite's
oral Daubert challenge and an evidentiary hearing. See Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993). After
granting Mennonite's motion to exclude Dr. Ramírez's expert
testimony, the district court went on to grant Mennonite's Rule 50
3
Cruz-Vázquez brings this case on behalf of herself, her husband,
her parents, her deceased child, and in representation of the
conjugal partnership formed between herself and her husband. For
simplicity, we address all plaintiffs collectively as "Cruz-
Vázquez."
-5-
motion for judgment as a matter of law; the court held that
plaintiffs failed to offer proof of crucial elements of their case.
See Cruz-Vázquez v. Mennonite Gen. Hosp., Inc., 613 F. Supp. 2d 202
(D.P.R. 2009).
Cruz-Vázquez appealed to this court, and at oral
argument, the issue of subject matter jurisdiction was raised.
Specifically, the undersigned inquired whether, under the facts as
stated in the amended complaint, the district court could properly
exercise federal jurisdiction under EMTALA. Following our request
for supplemental briefing on jurisdiction, we issued an opinion
vacating the district court's judgment and remanding for further
proceedings. Specifically, we found that the district court had
abused its discretion when it excluded the expert testimony because
its "reasoning had nothing to do with the scientific validity of
the opinion that Dr. Ramírez proposed to offer or the principles
that underlie it." Cruz-Vázquez v. Mennonite Gen. Hosp., 613 F.3d
54, 59 (1st Cir. 2010). Rather, we found, the district court
assessed the expert's potential bias, "a task that is 'properly
left to the jury.'" Id. (quoting United States v. Carbone, 798
F.2d 21, 25 (1st Cir. 1986)). Our opinion did not address the
jurisdictional issue.
In light of the advanced stage of the proceedings below,
the natural progression on remand should have been for the case to
proceed to a new trial. However, shortly after the case was
-6-
remanded, Mennonite filed a motion for summary judgment "for lack
of federal jurisdiction under EMTALA." The district court denied
Mennonite's motion, finding that "Mennonite had a standard
screening procedure, its 'Gravid with 3rd Trimester Bleeding'
protocol, which required certain tests to be performed and which
Mennonite denied to Cruz." Cruz-Vázquez v. Mennonite Gen. Hosp.,
Inc., No. 08-1236 (JP), 2011 WL 3607669, at *7 (D.P.R. Aug. 15,
2011). The court concluded that Plaintiffs "have presented
sufficient evidence for a reasonable jury to conclude that
Defendants' conduct in failing to apply its 'Gravid with 3rd
Trimester Bleeding' protocol to Cruz violated EMTALA." Id.
On the same day summary judgment was denied, Cruz-Vázquez
filed a motion to appoint a new expert, Dr. Frederick González. On
the following day, the district court granted that motion, ordering
that the expert be available to the parties within ten days. The
district court also set a date for the jury trial. However,
despite the fact that the district court in a prior motion had
already considered and rejected the jurisdiction challenge, and
that our opinion had been silent as to the issue, which could only
be reasonably interpreted to mean that we found no jurisdiction
flaw, the district court requested additional briefing "on the
issue of jurisdiction within 10 days." Mennonite took advantage of
the newly afforded chance to raise the jurisdictional issue and
filed a motion to dismiss "for lack of federal jurisdiction under
-7-
EMTALA." Mennonite's briefing, while framed in name as a motion to
dismiss on jurisdictional grounds, attacked the merits of Cruz-
Vázquez's EMTALA claim, arguing that she had failed to allege
sufficient facts to state an EMTALA claim.
The district court granted Mennonite's motion and vacated
its prior order denying summary judgment. In its opinion, the
court labeled Mennonite's motion as a "motion to dismiss for lack
of jurisdiction," but proceeded to address Cruz-Vázquez's EMTALA
claim on its merits. It found that Dr. Torres' "decision not to
perform additional tests [on Cruz-Vázquez was] not the same as the
denial of screening or egregious delay in screening identified by
the First Circuit in Correa [v. Hosp. San Francisco, 69 F.3d 1184,
1189 (1st Cir. 1995)]," relying on a Fourth Circuit case to hold
that plaintiffs' claims were as to a "faulty" screening rather than
a "disparate" screening. Cruz-Vázquez v. Mennonite Gen. Hosp.,
Inc., No. 08-1236 (JAF/JP), 2011 WL 4381888, at *3 (D.P.R.
Sept. 20, 2011) (citing Vickers v. Nash Gen. Hosp., 78 F.3d 139,
144 (4th Cir. 1996)). It proceeded to dismiss Cruz-Vázquez's
complaint as stating facts limited to a medical malpractice claim,
and holding that "EMTALA does not create a federal cause of action
for medical malpractice." Id.
-8-
II. Discussion
A. Cruz-Vázquez's EMTALA Claim
We first address the procedural and briefing
peculiarities we have inherited on appeal. The district court
requested that the parties brief "the issue of EMTALA jurisdiction"
well after a four-day trial on the merits, a first appeal vacating
the granting of Mennonite's Rule 50 motion, and all deadlines for
filing dispositive motions. Cruz-Vázquez v. Mennonite Gen. Hosp.,
No. 08-1236 (JP) (D.P.R. July 9, 2008) (setting deadline for
dispositive motions for January 12, 2009). However, while we do
not consider whether Mennonite's motion to dismiss was timely
filed, the motion nevertheless constitutes an almost unprecedented
attempt to revisit pleading issues at the latest possible stage.
Further, the proceedings below appear to confound
jurisdictional with merits-based issues. While the district court
requested briefing on jurisdictional issues and framed its
dismissal on those grounds, the legal assessment of Cruz-Vázquez's
EMTALA claim by both the parties and the court focused on whether
her complaint, along with facts stipulated outside the pleadings,
were sufficient to establish a claim. Specifically, the parties
and the district court assessed whether the screening performed on
Cruz-Vázquez when she presented at Mennonite's emergency room --
and the medical judgment rendered pursuant thereto -- were adequate
to the requirements of EMTALA, rendering her allegations pertaining
-9-
to that screening insufficient on the merits. Thus, the district
court's opinion and order were erroneous in using a jurisdictional
framework to assess the merits of Cruz-Vázquez's EMTALA claim.
We do not continue that path. We review Mennonite's
motion to dismiss as substantively raising challenges to the
complaint's sufficiency pursuant to Fed. R. Civ. P. 12(b)(6),
rather than challenging the district court's federal jurisdiction
pursuant to Fed. R. Civ. P. 12(b)(1).4 However, in light of the
district court's review of materials outside the pleadings,5 we
understand Mennonite's motion to dismiss as having been converted
to a motion for summary judgment pursuant to Fed. R. Civ. P. 12(d).
Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993); see Fed. R. Civ.
P. 12(d). We accordingly review de novo the district court's
ruling by analyzing the full record below and in the light most
hospitable to the non-moving party. Euromodas, Inc. v. Zanella,
Ltd., 368 F.3d 11, 16-17 (1st Cir. 2004). To prevent summary
4
Both parties in fact frame Cruz-Vázquez's challenge on appeal as
one from "the erroneous granting . . . of a summary judgment motion
for lack of federal jurisdiction." This further supports our
treatment of the appeal as one from summary judgment.
5
Specifically, the district court referred in its opinion to
Stipulations of Fact agreed upon by the parties in their Initial
Scheduling Conference Order and to the Statement of Uncontested
Material Facts, which relates relevant information from Cruz-
Vázquez's medical record at Mennonite's emergency room on January 4
and 5, 2007. The district court also referred to the transcript of
defendants' deposition of Cruz-Vázquez's expert, Dr. Carlos
Ramírez, in which he discussed relevant facts as to Cruz-Vázquez's
condition as well as the treatment by Drs. Torres and Gómez.
-10-
judgment, "the evidence upon which the nonmovant relies to create
a genuine issue of material fact must be 'significantly probative,'
not merely colorable." Id. at 17 (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986)). After such conversion,
"the party to whom the motion is directed can shut down the
machinery only by showing that a trialworthy issue exists."
Collier v. City of Chicopee, 158 F.3d 601, 604 (1st Cir. 1998)
(quoting McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315
(1st Cir. 1995)).6 In this case, the authentic dispute presented
is whether Cruz-Vázquez was adequately screened under EMTALA's
requirements.
To establish an EMTALA violation, a plaintiff must show
(1) the hospital is a participating hospital, covered by EMTALA,
that operates an emergency department; (2) the plaintiff arrived at
the facility seeking treatment; and (3) the hospital either (a) did
not afford the patient an appropriate screening in order to
determine if she had an emergency medical condition, or (b)
released the patient without first stabilizing the emergency
6
Both parties had ample notice of any conversion as they had just
prepared and submitted summary judgment materials for the district
court's review and cited to information drawn from those materials
in their motion to dismiss briefing. See Collier v. City of
Chicopee, 158 F.3d 601, 603 (1st Cir. 1998) ("A party is 'fairly
appraised' that the court will in fact be [applying the summary
judgment standard] if that party submits matters outside the
pleadings to the judge and invites consideration of them.")
(quoting Cunningham v. Rothery, 143 F.3d 546, 549 (9th Cir. 1998)).
-11-
medical condition.7 Correa, 69 F.3d at 1190 (citations omitted).
For an EMTALA screening violation, a plaintiff "need not prove that
she actually suffered from an emergency medical condition when she
first came through the portals of the defendant's facility; the
failure appropriately to screen, by itself, is sufficient to ground
liability as long as the other elements of the cause of action are
met." Id.
EMTALA does not define what an appropriate medical
screening consists of, but we have defined a participating
hospital's duty as providing an examination "reasonably calculated
to identify critical medical conditions that may be afflicting
symptomatic patients and provides that level of screening uniformly
to all those who present substantially similar complaints. The
essence of this requirement is that there be some screening
procedure, and that it be administered even-handedly." Id. at 1192
(internal citations omitted). In clarifying the screening
requirement, we have said that "a refusal to follow regular
screening procedures in a particular instance contravenes the
statute, but faulty screening, in a particular case, as opposed to
disparate screening or refusing to screen at all, does not
contravene the statute." Id. at 1192-93 (internal citation
7
Mennonite has stipulated to the first two elements of Cruz-
Vázquez's EMTALA claim: that it is a participating hospital covered
by EMTALA and that Cruz-Vázquez arrived at their facility seeking
treatment.
-12-
omitted). As a general matter, "[w]hen a hospital prescribes
internal procedures for a screening examination, those internal
procedures 'set the parameters for an appropriate screening.'"
Cruz-Queipo v. Hosp. Español Auxilio Mutuo de P.R., 417 F.3d 67, 70
(1st Cir. 2005) (quoting Correa, 69 F.3d at 1192).
Whether a hospital's existing screening protocol was
followed in a circumstance where triggering symptoms were
identified by hospital emergency room staff is thus a touchstone in
gauging uniform treatment. Id. at 71; Battle v. Memorial Hosp.,
228 F.3d 544, 558 (5th Cir. 2000) ("Evidence that a hospital did
not follow its own screening procedures can support a finding of
EMTALA liability for disparate treatment."); Summers v. Baptist
Medical Ctr. Arkadelphia, 91 F.3d 1132, 1138 (8th Cir. 1996)
("Patients are entitled under EMTALA . . . to be treated as other
similarly situated patients are treated, within the hospital's
capabilities. It is up to the hospital itself to determine what
its screening procedures will be. Having done so, it must apply
them alike to all patients.").
Circumstances where a screening protocol was not followed
when triggering symptoms were identified have been distinguished,
for the purposes of EMTALA coverage, from situations where: (1) no
screening protocol existed, see, e.g., Power v. Arlington Hosp.
Ass'n, 42 F.3d 851, 858-59 (4th Cir. 1994); (2) standard screening
procedures existed but were not followed because no identifiable
-13-
triggering symptoms were presented, see, e.g., Vickers, 78 F.3d at
144; and (3) standard screening procedures were in fact followed
when identifiable triggering symptoms were presented but an
improper diagnosis resulted, see, e.g., Reynolds v. MaineGeneral
Health, 218 F.3d 78 (1st Cir. 2000). Both parties stipulate that
a relevant screening protocol existed for female patients
presenting vaginal bleeding in their third trimester, and that
Mennonite "failed to activate [its] 'Gravid with 3rd Trimester
Bleeding' Protocol in this case." We thus focus on the district
court's failure to see how our case law has distinguished
allegations regarding a hospital's refusal to follow a regular
screening protocol -- as it undisputedly did in this case -- from
the second and third set of allegations, namely, that a screening
protocol was not followed because no identified symptoms triggered
it or that a screening protocol was followed but resulted in an
improper diagnosis.
In ordering the dismissal of Cruz-Vázquez's complaint,
the district court held that the alleged facts did not support the
federal claim for failure to screen under EMTALA. Specifically, it
found that
Dr. Torres made a medical judgment not to
perform additional tests after performing a
pelvic examination on Cruz, establishing that
she was not experiencing any pain, and
consulting Cruz's private physician. Dr.
Torres' decision not to perform additional
tests is not the same as the denial of
-14-
screening or egregious delay in screening
identified by the First Circuit in Correa.
The district court cited to our decision in Reynolds, 218 F.3d at
83-84, and the Fourth Circuit Vickers decision, 78 F.3d at 144, to
support its conclusion that a physician's medical judgment may
properly substitute for the implementation of the hospital's
internal protocols for the purposes of meeting the appropriate
medical screening requirements of EMTALA.
In Reynolds, plaintiff's husband was an emergency room
patient who was screened and examined for leg and foot fractures
following a car accident and was released after two surgeries. 218
F.3d at 79-81. Subsequent to his release, Reynolds died from
pulmonary embolism caused by deep veinous thrombosis ("DVT"), a
form of blood clotting or hypercoagulation. Id. at 80. The
district court granted the defendant hospital's motion for summary
judgment, concluding that the facts did not support a federal claim
for failure to screen under EMTALA. Id. We affirmed on two
grounds. Id. at 81-82. First, we found that the patient was not
experiencing, nor did he complain of, any physiological symptoms
that would trigger standard procedures specific to DVT. Id. at 82.
Second, the only standard screening policy cited by plaintiff was
a general written policy requiring the taking of all presenting
patients' "complete histories." Id. at 83-84. Plaintiff
supplemented the evidence of the general written policy with expert
testimony supporting the proposition that a "complete history"
-15-
necessarily included asking questions about any family history of
hypercoagulability in Reynolds' case. Id. at 84. However, upon
arrival at the defendant hospital, Reynolds received extensive
screening and treatment for all identified injuries: he was treated
by a triage nurse, was examined by an emergency room physician who
took an oral medical history and ordered a series of laboratory
tests, x-rays, and an abdominal CT scan. Id. at 79-82. He was
further evaluated by two consulting doctors (a general surgeon and
an orthopedic surgeon), had two surgeries, was constantly monitored
during his stay and received physical therapy. Id.
This case is distinguishable from Reynolds. The court in
Reynolds found that the expert testimony presented regarding
emergency staff inquiries into family history, in conjunction with
the absence of any more detailed hospital policies, was not
sufficient "to support a finding that Mr. Reynolds received
materially different screening than did other patients in his
condition," and, further, that it was insufficient to support a
finding that "Mr. Reynolds was 'symptomatic' for" DVT so as to
warrant a screening for that condition. Id. at 84. In this case,
however, the hospital's policy was not vague and did not require
expert determinations as to its scope as an abstract matter.
Rather, it very straightforwardly set forth a series of testing
requirements in its "Gravid with 3rd Trimester Bleeding" protocol
for all patients presenting a specific set of symptoms. Further,
-16-
Cruz-Vázquez presented and Mennonite conceded that, unlike
Reynolds, she was identified by emergency physicians to have the
requisite symptoms to trigger the Protocol: vaginal bleeding in her
third trimester. Her evidence includes the fact that her examining
physician, Dr. Torres, noted her vaginal bleeding on her medical
record. Mennonite has further stipulated to the fact that it did
not implement its uniform protocol to Cruz-Vázquez. This is
sufficient to meet Cruz-Vázquez's factual burden to survive summary
judgment on her disparate screening claim.
This case is also distinguishable from Vickers. In
Vickers, the Fourth Circuit affirmed a district court's dismissal
of a disparate screening claim brought by the executor of a
deceased former patient. 78 F.3d at 141. Vickers arrived at the
defendant hospital's emergency room after being involved in an
altercation in which he fell and landed on his head. Id. Upon
arrival, he was extensively examined and diagnosed as suffering
from a "laceration and contusions and multiple substance abuse."
Id. (quotation marks omitted). After hospital staff repaired
Vicker's lacerations with staple sutures, ordered X-rays of his
cervical spine, and determined that there was no spinal damage,
Vickers was discharged. Id. Four days later, Vickers was found
dead, and an autopsy identified the cause of death as "cerebral
herniation and epidural hematoma produced by a fracture of the left
parietal area of Vickers' skull." Id.
-17-
Plaintiff argued that Vickers had "received less
screening, both in quantity and quality, than required under the
Act, and less than those other patients presenting in this same
medical condition received." Id. at 143. However, upon examining
the allegations, the Fourth Circuit found them to "ultimately
present conventional charges of misdiagnosis," id., stating that
"EMTALA is implicated only when individuals who are perceived to
have the same medical condition receive disparate treatment; it is
not implicated whenever individuals who turn out in fact to have
had the same condition receive disparate treatment," id. at 144.
Therefore, the court ruled, "when an exercise in medical judgment
produces a given diagnosis, the decision to prescribe a treatment
responding to the diagnosis cannot form the basis of an EMTALA
claim of inappropriate screening." Id. Treatment decisions, it
found, were fundamentally distinguishable from "disparate treatment
of individuals perceived to have the same condition." Id. That
kind of treatment remained "the cornerstone of an EMTALA claim,"
according to the court. Id.
Here, the parties do not contest that Cruz-Vázquez did in
fact present symptoms that were perceived by hospital staff as
symptoms that would ordinarily trigger the established Protocol.
Unlike in Vickers, the hospital staff in this case were not blind
to a hidden condition in the emergency patient. Therefore, the
evidence she proffers does not go to the failure to properly
-18-
diagnose based on a faulty screening, but rather to a failure to
treat her equally to individuals perceived to have her same
condition -- vaginal bleeding in their third trimester. She thus
presents the "cornerstone" of an EMTALA screening claim.
The fact that Cruz-Vázquez was eventually discharged from
Mennonite's emergency room based on the recommendation of her own
treating obstetrician does not change the analysis. While we
cannot grant summary judgment to Cruz-Vázquez at this stage, she
has presented evidence that both of her treating physicians were
aware of and had identified her symptoms of vaginal bleeding and
nevertheless failed to perform the requisite tests which "set the
parameters for an appropriate screening" of patients presenting
those symptoms -- the "Gravid with 3rd Trimester Bleeding"
protocol. This is insufficient to grant summary judgment outright
to Cruz-Vázquez, however, because the evidence in the record is
unclear as to whether the physicians may have justifiably treated
her differently from other patients presenting like symptoms as a
result of additional information they may have had about the
patient or her particular condition.8 We do nevertheless feel
obliged to sound a cautionary note. While a treating
8
The record below is also devoid of critical expert testimony and
any challenges to said testimony. This is because the district
court issued its judgment after it granted Cruz-Vázquez's motion to
appoint an expert witness and Cruz-Vázquez produced his expert
report to the defendants but before defendants had the opportunity
to depose the expert or submit evidence into the record to
challenge the expert witness's report.
-19-
obstetrician's medical judgment may inform whether or not a patient
was sufficiently "like" other patients that come under a given
hospital protocol, it should not be improperly relied on to
entirely bypass the hospital's obligation to equally screen under
the statute. See Correa, 69 F.3d at 1192 ("[A] refusal to follow
regular screening procedures in a particular instance contravenes
the statute").
III. Conclusion
Cruz-Vázquez thus presented sufficient evidence to show
that a trialworthy issue exists as to her disparate screening
claim. We accordingly vacate the district court's judgment and
remand the case for trial on her EMTALA claim as well as her Puerto
Rico law claims. The parties are to bear their own costs in this
appeal.
Vacated and Remanded.
-20-