Kenneth Martindale v. Indiana University Health Bloo ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-3015
KENNETH MARTINDALE, Individually and as Personal Repre-
sentative of the Estate of JODY MARTINDALE, Deceased,
Plaintiff-Appellant,
v.
INDIANA UNIVERSITY HEALTH BLOOMINGTON, INC., d/b/a IU
HEALTH BLOOMINGTON HOSPITAL,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:19-cv-00513 — Richard L. Young, Judge.
____________________
ARGUED MAY 19, 2022 — DECIDED JULY 6, 2022
____________________
Before FLAUM, EASTERBROOK, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. Early one morning in January
2017, Jody Martindale arrived at the emergency room at Indi-
ana University Health Bloomington Hospital with severe ab-
dominal pain. IUHB doctors promptly determined she
needed emergency surgery to remove a dying portion of her
intestine. But because they believed (incorrectly, it would turn
2 No. 21-3015
out) that the problem stemmed from an earlier gastric bypass
surgery, they transferred her to a different facility to be oper-
ated on by the bariatric surgeon who had performed the by-
pass. Tragically, Jody Martindale died two days later.
Martindale’s husband sued IUHB, alleging that its failure
to operate on Jody violated its obligations under the federal
Emergency Medical Treatment and Labor Act. But that Act
serves a very narrow set of purposes, and IUHB complied
with its requirements. So we are left to affirm the entry of
summary judgment for IUHB.
I
A
Jody Martindale entered IUHB’s emergency room in
Bloomington, Indiana at 7:08 a.m. on January 16, 2017. A few
minutes later, at 7:21 a.m., Dr. Francis Karle examined her
and ordered IV fluids, pain medication, and lab tests to fur-
ther assess Jody’s abdominal condition. Results of those tests
came back abnormal, leading Dr. Karle to order a CT scan at
8:18 a.m.
The CT scan, performed at 9:31 a.m., revealed evidence
that “may indicate active mesenteric ischemia involving the
small intestine in the central abdomen.” In plain English, this
meant that a portion of Jody’s intestine was dying from lack
of blood flow. The CT report Dr. Karle received indicated that
the potential ischemia may have had something to do with a
prior gastric bypass surgery:
There is one segment of the small intestine that
is much more distended … and this is associ-
ated with suture material, possibly indicating
No. 21-3015 3
internal hernia or volvulus of a segment in-
volved in gastric bypass anastomosis. … Patient
has evidence of a small recurrent sliding hiatal
hernia which contains some of the suture mate-
rial closely associated with the stomach, from
the gastric bypass surgery.
The report concluded that a “[g]eneral surgery consulta-
tion is recommended to consider exploratory laparotomy,
given the possibility of mesenteric ischemia.” An exploratory
laparotomy is a procedure involving opening up the patient’s
abdomen to allow doctors to more closely examine the inter-
nal organs and determine next steps.
At 9:47 a.m., after receiving the CT results, Dr. Karle called
IUHB’s on-call general surgeon, Dr. Terrence Greene. The
two discussed the “full details of [Jody’s] case,” including the
fact that she “had undergone a gastric bypass operation
around 10 years prior” and that the ischemia might be related
to that prior procedure. Dr. Greene told Dr. Karle that he
could not perform the laparotomy because he “does not touch
gastric bypass patients.” This was so, Dr. Greene later testi-
fied, because he “had no training in bariatric surgery, [had]
never performed a bariatric procedure, [and had] never even
seen a bariatric surgery.” He therefore did not “feel like [he]
ha[d] the training and the expertise” required to operate
safely on Jody. He recommended instead that Dr. Karle con-
tact the surgeon who performed the original bypass.
Half an hour later, at 10:17 a.m., Dr. Karle spoke over the
phone to that surgeon, Dr. RoseMarie Jones at Community
Health Bariatric Center in Indianapolis. He explained the sit-
uation and asked Dr. Jones whether she was available to op-
erate on Jody. Dr. Jones agreed to accept the transfer,
4 No. 21-3015
recommending that IUHB send Jody via helicopter so that she
could receive treatment as soon as possible. Poor weather
made air transport impossible, however, so Dr. Karle ar-
ranged for transportation in an ambulance with advanced life
support capabilities. Dr. Karle ordered the ambulance for
noon, but it did not depart until 12:28 p.m.
Jody arrived at Community Health at 1:26 p.m., where
Dr. Jones then performed the emergency laparotomy. The
procedure confirmed that parts of Jody’s intestines were in-
deed ischemic, so Dr. Jones “performed a small bowel resec-
tion” to remove the dying portions. During the surgery,
Dr. Jones found “absolutely no sign of any bariatric etiology
for Mrs. Martindale’s ischemia,” revealing that IUHB had
been mistaken in its belief that Jody’s condition stemmed
from prior gastric bypass surgery. Dr. Greene later testified
that, had he known at the time that the ischemia was unre-
lated to the bypass, he “probably” could have operated on
Jody himself at IUHB.
After the surgery, Jody experienced sepsis and multiple
organ failure. Dr. Jones concluded that “[i]t is hard to know
whether quicker treatment would have had a different result,
but the further delay due to transport certainly did not help.”
Jody passed away two days later. She was just 50 years old.
B
Jody’s husband Kenneth Martindale sued IUHB, invoking
the federal Emergency Medical Treatment and Labor Act,
which practitioners often refer to as EMTALA but which we
will call the Treatment Act. As relevant to this appeal, Mar-
tindale asserted that IUHB failed to satisfy its statutory obli-
gation to “stabilize” Jody when it decided to transfer her to
No. 21-3015 5
Dr. Jones in Indianapolis without first performing the lapa-
rotomy and removing the ischemic portions of her intestine.
See 42 U.S.C. § 1395dd(b)(1)(A).
But the district court never answered the question
whether IUHB had successfully stabilized Jody within the
meaning of the Act. It instead entered summary judgment for
IUHB on alternative grounds. Even “assuming she was not
stabilized” at the time of transfer, the district court explained,
no reasonable jury could find that IUHB had not satisfied the
Treatment Act’s provisions expressly permitting it to transfer
her prior to stabilization. See id. § 1395dd(b)(1)(B), (c).
Martindale now appeals.
II
Before turning to the substance of Martindale’s claims,
we begin by setting out the statutory scheme on which they
depend.
Congress passed the Treatment Act in 1986 with a specific
problem in mind. The Act sought to eliminate “patient
‘dumping,’” a practice by which “hospitals would not pro-
vide the same treatment to uninsured patients as to paying
patients, either by refusing care to the uninsured patients or
by transferring them to other facilities.” Beller v. Health &
Hosp. Corp. of Marion County, 703 F.3d 388, 390 (7th Cir. 2012).
To that end, the enactment imposes a set of obligations
with which hospitals accepting federal funds through Medi-
care must comply when faced with patients seeking emer-
gency care.
Hospitals that fail to satisfy their statutory obligations
may owe civil penalties to the government or compensatory
damages to patients. See 42 U.S.C. § 1395dd(d)(1)–(2).
6 No. 21-3015
Crucially, though, federal courts are unanimous that the
Treatment Act “is not a malpractice statute” and so “cannot
be used to challenge the quality of medical care.” Nartey v.
Franciscan Health Hosp., 2 F.4th 1020, 1025 (7th Cir. 2021) (join-
ing seven other circuits in reaching that conclusion). Instead,
patients can collect only those damages that flow directly
from violations of the Act’s requirements. See 42 U.S.C.
§ 1395dd(d)(2)(A).
Foremost among the obligations the Act imposes is its
screening requirement: hospitals must examine each person
who arrives at an emergency room and determine whether
they have an “emergency medical condition.” Id. § 1395dd(a).
An “emergency medical condition” is one characterized by
“acute symptoms of sufficient severity (including severe
pain) such that the absence of immediate medical attention
could reasonably be expected to” jeopardize the individual’s
health or impair her bodily functions or organs. Id.
§ 1395dd(e)(1)(A)(i)–(iii). If the screening turns up no such
condition, the hospital’s obligations under the Treatment Act
come to an end.
Hospitals must go one step further, though, for those pa-
tients they determine do present with an emergency medical
condition. In those circumstances, subsection (b)(1) requires
the hospital to provide either:
(A) within the staff and facilities available at the
hospital, for such further medical examination
and such treatment as may be required to stabi-
lize the medical condition, or
(B) for transfer of the individual to another medical
facility in accordance with subsection (c).
No. 21-3015 7
Id. § 1395dd(b)(1)(A)–(B). Hospitals, in short, must “either
provide further treatment or transfer [the patient] in accord-
ance with certain parameters.” Nartey, 2 F.4th at 1025; see also
Thomas v. Christ Hosp. & Med. Ctr., 328 F.3d 890, 893 (7th
Cir. 2003).
It is those parameters governing transfer, set out in
§ 1395dd(c), that lie at the heart of this case. That provision
begins by setting out the general rule that, if a patient suffers
from “an emergency medical condition which has not been
stabilized, … the hospital may not transfer the individual” to an-
other facility. 42 U.S.C. § 1395dd(c)(1) (emphasis added). And
a condition is considered “stabilized,” the Act goes on to ex-
plain, if “no material deterioration of the condition is likely,
within reasonable medical probability, to result from or occur
during the transfer of the individual.” Id. § 1395dd(e)(3)(B).
But despite its clear preference for stabilization, the Treat-
ment Act expressly authorizes transfer prior to stabilization if
two sets of additional conditions are satisfied. First,
§ 1395dd(c)(1)(A) permits pre-stabilization transfer if either
the patient requests transfer in writing “after being informed
of the hospital’s obligations under [the Act] and of the risk of
transfer,” id. § 1395dd(c)(1)(A)(i), or, alternatively, a physi-
cian (or other qualified person) certifies in writing that,
“based upon the information available at the time of transfer,
the medical benefits reasonably expected from the provision
of appropriate medical treatment at another medical facility
outweigh the increased risks to the individual … from effect-
ing the transfer.” Id. § 1395dd(c)(1)(A)(ii)–(iii).
Second, even if one of those predicate conditions is satis-
fied, the Treatment Act authorizes pre-stabilization transfer
only so long as it is “appropriate,” id. § 1395dd(c)(1)(B), a term
8 No. 21-3015
the statute attaches to transfers satisfying, yes, four further
conditions. See id. § 1395dd(c)(2)(A)–(D). Three of these final
conditions are easy enough to understand: the transferring
hospital must locate a transferee with “available space and
qualified personnel” that “has agreed to accept transfer” and
then treat the patient; must provide the transferee with “all
medical records” that are “related to the emergency condi-
tion”; and must effectuate the transfer through “qualified per-
sonnel and transportation equipment.” Id. § 1395dd(c)(2)(B)–
(D). The final prerequisite of “appropriate” pre-stabilization
transfer, though—and the one most relevant to this case—is
less self-explanatory: the transferring hospital must “pro-
vide[ ] the medical treatment within its capacity which mini-
mizes the risks to the individual’s health.” Id.
§ 1395dd(c)(2)(A). Neither the Treatment Act itself nor its im-
plementing regulations, see 42 C.F.R. § 489.24, provide fur-
ther direction on the meaning of this final requirement.
III
We begin with the common points of agreement between
the parties. All agree that IUHB satisfied the Treatment Act’s
screening requirement when Dr. Karle examined Jody Mar-
tindale shortly after she arrived at the emergency room. See
42 U.S.C. § 1395dd(a). Nor is there any doubt that the is-
chemic bowel the CT scan revealed was an “emergency med-
ical condition” triggering IUHB’s additional obligation to
“provide further treatment or transfer [Jody] in accordance
with certain parameters.” Nartey, 2 F.4th at 1025 (citing 42
U.S.C. § 1395dd(b)(1)). Finally, it is clear that IUHB in fact
chose to transfer Jody rather than provide further treatment.
The narrow disagreement, then, is whether that transfer
complied with the Treatment Act. On appeal, Martindale
No. 21-3015 9
renews his contention that IUHB violated § 1395dd(c) by fail-
ing to stabilize Jody prior to transferring her. In his view, the
only thing that could have stabilized Jody was Dr. Greene (or
another IUHB surgeon) performing surgery in Bloomington
to remove the ischemic portions of her intestine. And so, be-
cause IUHB instead left it to Dr. Jones at Community Health
in Indianapolis to perform that stabilizing surgery, Martin-
dale believes a reasonable jury could find a violation of the
Treatment Act.
Martindale’s focus on the Treatment Act’s stabilization re-
quirement does not join issue with the basis for the district
court’s decision—that the Treatment Act permitted IUHB to
transfer Jody without first stabilizing her, and that IUHB com-
plied with the requirements for doing so. But we are reluctant
to decide the case based on waiver, especially since, as will
become clear, Martindale’s brief can be read to make a more
structural argument about the meaning of the Treatment
Act—that a hospital may never transfer a patient prior to sta-
bilization on facts like the ones in this case.
That position is untenable. The Treatment Act expressly
authorizes pre-stabilization transfer where one of two trigger-
ing conditions is satisfied and the transfer is “appropriate.”
See 42 U.S.C. § 1395dd(c)(1)(A)–(B). No reasonable jury could
conclude that IUHB did not satisfy both requirements here.
Like the district court, then, we do not reach the question
whether IUHB stabilized Jody within the meaning of the
Treatment Act, because the Act expressly permitted her trans-
fer even absent stabilization.
10 No. 21-3015
A
For starters, Martindale has never argued that IUHB failed
to satisfy one of the two predicates for pre-stabilization trans-
fer—a written request by the patient or a certification signed
by a doctor. See id. § 1395dd(c)(1)(A)(i)–(iii).
Here, IUHB took the latter path: at 10:45 a.m. on the morn-
ing of January 16, following his phone conversation with
Dr. Jones at Community Health, Dr. Karle completed and
signed a form titled “Transfer Certification to Another Facil-
ity.” In that form Dr. Karle certified—in language exactly mir-
roring the statutory text of § 1395dd(c)(1)(A)(ii)—that,
[b]ased upon the information available to [him]
at the time of transfer, … the medical benefits
reasonably expected from the provision of ap-
propriate medical treatment at another facility
outweigh the increased risks to [Jody] … from
undertaking the transfer.
The information available to Dr. Karle at the time—the re-
sults of the CT scan—seemed to indicate that Jody’s ischemia
was related to her history of gastric bypass surgery. On that
understanding, the on-call surgeon Dr. Greene believed he
could not safely operate on Jody. And for that reason,
Dr. Karle’s certification indicated that he saw the benefits of
“[e]xploratory laparotomy by [Jody’s bariatric] surgeon,”
Dr. Jones, as outweighing the risks of transfer to Dr. Jones’s
facility, of which the form listed none beyond ordinary
“[t]ransportation [r]isk.”
Martindale does not suggest that Dr. Karle completed this
certification in bad faith. See 42 U.S.C. § 1395dd(d)(1)(B)(i)
(providing for civil penalties of up to $50,000 for a physician
No. 21-3015 11
who “signs a certification under subsection (c)(1)(A) … if the
physician knew or should have known that the benefits did
not outweigh the risks”). And absent some evidence corrobo-
rating such an allegation, the Treatment Act does not permit
us to second guess Dr. Karle’s decision. A certifying physician
“need not be correct in making a certification decision; the
statute only requires a signed statement attesting to an actual
assessment and weighing of the medical risks and benefits of
transfer.” Burditt v. United States Dep’t of Health & Human
Servs., 934 F.2d 1362, 1371 (5th Cir. 1991). There is no jury
question on this point.
B
From there the question becomes whether Jody’s transfer
to Community Health was “appropriate” within the meaning
of § 1395dd(c)(2).
There is no dispute about three of the four requirements
of appropriate transfer. Martindale does not argue on appeal
that Community Health lacked the resources to treat Jody or
had not accepted the transfer, see 42 U.S.C. § 1395dd(c)(2)(B);
that IUHB failed to provide Community Health with the re-
quired paperwork, see id. § 1395dd(c)(2)(C); or that the trans-
fer was not “effected through qualified personnel and trans-
portation equipment,” id. § 1395dd(c)(2)(D).
That leaves the parties to disagree about just one statutory
requirement: whether IUHB provided Jody with “the medical
treatment within its capacity which minimizes the risks to
[her] health.” Id. § 1395dd(c)(2)(A). Martindale urges a broad
reading of this language. In his view, evidence presented at
summary judgment shows that it was “within [IUHB’s] ca-
pacity” to perform the laparotomy and resection required to
12 No. 21-3015
remove the dying portion of Jody’s intestine, and that only
this surgery could “minimize[ ] the risks to [Jody’s] health.”
Id. Accordingly, he argues, because IUHB transferred Jody to
Community Health without performing these procedures in
Bloomington, the transfer was not “appropriate” within the
meaning of the Treatment Act.
Recognize, though, what adopting Martindale’s reasoning
would mean. The laparotomy and resection procedures Mar-
tindale now argues were required to “minimize the risks” un-
der § 1395dd(c)(2)(A) are the very same surgeries he says
were needed to “stabilize” Jody under § 1395dd(c)(1) and
(e)(3)(B). On Martindale’s reading, then, a hospital may not
make use of subsection (c)’s pre-stabilization transfer proce-
dures when the necessary stabilization treatment is within the
hospital’s capacity. Or put another way, when the evidence
shows the hospital could have stabilized the patient, pre-sta-
bilization transfer could never be deemed “appropriate.” Id.
§ 1395dd(c)(1)(B).
That cannot be. By the express terms of the Treatment Act,
we only reach the question whether transfer is appropriate
once the patient has requested transfer or the treating physi-
cian has certified that the benefits of transfer prior to stabiliza-
tion “outweigh the increased risks to the individual … from
effecting the transfer.” Id. § 1395dd(c)(1)(A)(ii). In that con-
text, it is clear that subsection (c)(2)(A) requires the hospital
to minimize only the risks of transfer—the same risks the Act
asks the treating physician to balance when deciding whether
to sign the transfer certification.
We can put the same observation another way. Dr. Karle
signed the certification accompanying the transfer decision on
the view that no available surgeon at IUHB could safely
No. 21-3015 13
operate on Jody. Martindale points to Dr. Jones’s testimony to
argue that this opinion was ultimately mistaken—that IUHB
in fact could have stabilized Jody. By Martindale’s telling,
therefore, the Treatment Act’s minimize-the-risks language in
§ 1395dd(c)(2)(A) required IUHB to perform the very surgery
that Dr. Karle had just certified the hospital could not safely
perform. That reading, which depends entirely on the hind-
sight offered by Dr. Jones’s assessment, cannot be squared
with the text of the statute, which requires not that the trans-
fer turn out to be the best medical choice, but only that a phy-
sician believe the decision warranted “based upon the infor-
mation available at the time.” Id. § 1395dd(c)(1)(A)(ii) (empha-
sis added); see Ramos-Cruz v. Centro Medico del Turabo, 642
F.3d 17, 19 (1st Cir. 2011) (rejecting as “untenable” the argu-
ment that § 1395dd(c)(2)(A) requires a hospital to “deliver the
feasible specific treatment that is best, whatever it may be”).
That reading is likewise incompatible with the Treatment
Act’s narrow purpose as an anti-dumping law rather than a
federal cause of action for medical malpractice. See Beller, 703
F.3d at 390; Nartey, 2 F.4th at 1025. Cases in which a physi-
cian—like Dr. Karle here—has, in good faith, signed a certifi-
cation under subsection (c)(1)(A), are not cases in which the
hospital is engaged in patient dumping. They are instead sit-
uations in which the treating physician has undertaken “an
actual assessment and weighing of the medical risks and ben-
efits of transfer” and determined that transfer is in the pa-
tient’s best interest. Burditt, 934 F.2d at 1371. To the extent
Dr. Karle’s views about IUHB’s ability to safely operate on
Jody were unreasonable or fell below the relevant standard of
care—and Martindale has submitted the testimony of a pur-
ported expert, Dr. Martin Schreiber, to support this
14 No. 21-3015
proposition—that claim sounds only in medical malpractice.
See Ramos-Cruz, 642 F.3d at 19.
So, too, is a state-law malpractice claim the proper vehicle
for addressing a separate contention made by Martindale in
passing: that Dr. Greene independently violated the Treat-
ment Act by failing to appear in person to examine Jody. To
be sure, an on-call physician who “fails or refuses to appear
within a reasonable period of time” to operate on a patient
may open himself up to Treatment Act liability. 42 U.S.C.
§ 1395dd(d)(1)(C). But the record here is clear that Dr. Greene
promptly answered Dr. Karle’s phone call, discussed Jody’s
case with him, reviewed the CT scan results, and determined
he was unable to stabilize Jody’s condition. If Dr. Karle saw
this conduct as constituting a failure or refusal to appear, the
Treatment Act would have required him to notify Commu-
nity Health of that fact. See id. § 1395dd(c)(2)(C). But Dr. Karle
left blank that portion of the transfer certification form, indi-
cating he did not believe Dr. Greene to be shirking his statu-
tory duties. And there is no evidence permitting a jury to con-
clude otherwise. Instead, here again, the reasonableness of
Dr. Greene’s conduct is a question for state malpractice
law only.
Back in the realm of federal law, there remain difficult
questions about what precisely it means for a hospital to
“minimize[ ] the risks” of pre-stabilization transfer within the
meaning of § 1395dd(c)(2)(A). Recall that neither the Treat-
ment Act nor the applicable regulations provide an express
definition of the phrase. Other circuits have read the provi-
sion to impose only a de minimis requirement that the hospi-
tal comply with its own standard operating procedures re-
garding transfer. See Ramos-Cruz, 642 F.3d at 19; Ingram v.
No. 21-3015 15
Muskogee Reg’l Med. Ctr., 235 F.3d 550, 552 (10th Cir. 2000). But
it is not self-evident—at least without briefing and argument
on the question—that any and all standard operating proce-
dures would fit the bill. In other contexts, for example, mini-
mize really means minimize: “to reduce to the smallest
amount, extent, or degree reasonably possible.” 40 C.F.R.
§ 125.83 (defining “minimize” for purposes of § 316(b) of the
Clean Water Act, 33 U.S.C. § 1326(b)).
We can leave for another day, however, the task of dis-
cerning the precise contours of the Treatment Act’s minimize-
the-risks requirement. We have already rejected Martindale’s
sole argument about the phrase’s meaning: that
§ 1395dd(c)(2)(A) requires stabilization if the facts show it is
possible, regardless of a physician’s certification to the con-
trary. Beyond that, Martindale makes no claim—and there is
no indication in the summary judgment record—that IUHB
carried out the transfer itself in an unsafe manner. Accord-
ingly, he has not presented evidence permitting a reasonable
jury to conclude that IUHB failed to provide medical care
within its capacity to minimize the risks of Jody’s transfer to
Community Health. The transfer was thus “appropriate,” 42
U.S.C. § 1395dd(c)(1)(B), and summary judgment for the hos-
pital was proper.
* * *
The facts of this case are tragic. But we are left to apply the
Treatment Act as Congress enacted it. If Martindale has a
claim against IUHB, it is one under state rather than federal
law. We express no views on the merits of such a claim.
For these reasons, the judgment is AFFIRMED.