Donna Root v. Tempe St. Luke's Hospital ( 2010 )

FILED
MAR 03 2010
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONNA J. ROOT; et al., No. 08-17644
Plaintiffs - Appellants, D.C. No. 2:05-cv-02834-SRB
v.
TEMPE ST. LUKE’S HOSPITAL; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Donna J. Root appeals pro se from the district court’s summary judgment for
defendants in her action under the Emergency Medical Treatment and Active Labor
Act (“EMTALA”) and Arizona’s wrongful death statute. We have jurisdiction under
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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28 U.S.C. § 1291. We review summary judgment de novo, Toguchi v. Chung, 391
F.3d 1051, 1056 (9th Cir. 2004), and review for an abuse of discretion challenges to
evidentiary decisions, ACLU of Nev. v. City of Las Vegas, 333 F.3d 1092, 1097 (9th
Cir. 2003). We may affirm on any grounds supported by the record. ACLU of Nev.,
333 F.3d at 1097. We affirm.
Summary judgment for defendants on Root’s EMTALA claim was proper
because Root presented no evidence raising a triable issue as to whether the
assessment that Root’s son received in the emergency room before he voluntarily left
the hospital against medical advice differed from that received by other patients
presenting similar symptoms or as to whether the assessment was designed to detect
acute and severe symptoms. See Jackson v. East Bay Hosp., 246 F.3d 1248, 1255-56
(9th Cir. 2001) (recognizing EMTALA imposes no standard of care for screening
patients; “the touchstone is whether . . . the procedure is designed to identify an
emergency medical condition . . . manifested by acute and severe symptoms[,]” which
is determined by whether it is comparable to that “offered to other patients presenting
similar symptoms[.]”) (citations and internal quotation marks omitted).
Summary judgment for defendants on Root’s wrongful death claim was also
proper. The district court properly (1) required expert testimony as to causation, see
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Seisinger v. Siebel, 203 P.3d 483, 493 (Ariz. 2009) (“We . . . conclude that the
requirement of expert testimony in a medical malpractice action is a substantive
component of the common law governing this tort action.”), and (2) rejected as lacking
foundation the testimony of Root’s proffered causation expert, see Domingo ex rel.
Domingo v. T.K., 289 F.3d 600, 607 (9th Cir. 2002) (affirming rejection of proffered
medical expert as insufficient on causation). Because Root bore, and failed to carry, the
burden of establishing a genuine issue of material fact as to whether or not defendants
caused her son’s death, summary judgment for defendants on her wrongful death claim
was proper. See Lake Nacimiento Ranch Co. v. San Luis Obipso County, 841 F.2d 872,
876 (9th Cir. 1987) (“Under Celotex the . . . nonmoving party, may avoid summary
judgment against it only by” showing a genuine issue of material fact as to an element
essential to its case and on which it will bear the burden of proof at trial; the moving
party “was not required to support its motion with affidavits or other similar materials
negating the opponent’s claim.”) (emphasis in original) (citations and internal quotation
marks omitted).
Root forfeited her remaining contentions, which were raised for the first time on
appeal. See Man-Seok Choe v. Torres, 525 F.3d 733, 740 n.9 (9th Cir. 2008).
AFFIRMED.
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