Bernie Harry v. Wayne Marchant

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
__________________________ ELEVENTH CIRCUIT
JAN 10 2001
THOMAS K. KAHN
No. 99-13205
CLERK
__________________________
D.C. Docket No. 99-00786-CV-KMM
BERNIE HARRY, as Personal Representative of
the Estate of Lisa Normil, deceased,
Plaintiff-Appellant,
versus
WAYNE MARCHANT, M.D.,
ALI BAZZI, M.D., et al,
Defendants-Appellees.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
__________________________
(January 10, 2001)
Before BARKETT and WILSON, Circuit Judges, and GEORGE*, District Judge.
BARKETT, Circuit Judge:
*
Honorable Lloyd D. George, U.S. District Judge for the District of Nevada, sitting by
designation.
Bernie Harry, as Personal Representative of the Estate of Lisa Normil, appeals
the dismissal of his amended complaint against Wayne Marchant M.D., Ali Bazzi
M.D., Christopher Hanner M.D., Kevin Coy M.D., Polly Linker R.N., and Miami
Beach Healthcare Group, Ltd., d/b/a Aventura Hospital and Medical Center
(“Aventura”), alleging violations of 42 U.S.C. § 1395dd (Emergency Medical
Treatment and Active Labor Act or “EMTALA”) and 42 U.S.C. § 1981 that
contributed to and/or caused the death of Lisa Normil.
BACKGROUND
The complaint in this case alleges the following facts. Lisa Normil was brought
to the Aventura Hospital emergency room on November 26, 1997, at approximately
1:17 a.m., by Miami-Dade Fire Rescue and medical treatment was requested on her
behalf. She was seen in the emergency room by Dr. Marchant, who diagnosed Normil
as suffering from pneumonia and possible sepsis or pulmonary embolism. Marchant
contacted Dr. Coy, the on-call attending physician, to report Normil’s diagnosis and
to request permission to admit her to the intensive care unit (“ICU”). Coy did not
immediately authorize Normil’s admission, but instead directed Marchant to obtain
a ventilation perfusion scan (“VQ scan”). The VQ scan was not performed, allegedly
because Aventura had run out of the isotopes necessary to perform the scan. Despite
Aventura’s inability to perform the VQ scan, Marchant did not arrange to have Normil
2
transferred to another facility. Marchant also contacted Dr. Bazzi, Normil’s primary
care physician, but Bazzi did not see Normil until approximately five hours later, still
in the emergency room. Subsequently, Normil was admitted to the ICU. By that time,
Normil had been in the emergency department for more than seven hours.
Although antibiotics had been prescribed, Normil did not receive any while in
the ICU. Sometime after her admission to the ICU, Normil lapsed into respiratory and
cardiac failure. Dr. Hanner, another emergency department physician, allegedly
responded to the “Code Blue” announcement in an untimely manner and failed to
properly manage the resuscitation efforts. The attempted resuscitation was
unsuccessful, and Normil died in the ICU on November 27, 1997.
Harry filed suit against the defendants, alleging that they had caused and/or
contributed to Normil’s death. Harry alleged that Aventura had violated EMTALA,
by failing to provide Normil with an appropriate screening to determine whether she
suffered from an emergency medical condition and by failing to stabilize and treat her
condition. He further alleged, pursuant to 42 U.S.C. § 1981, that Aventura, Linker,
and Bazzi violated Normil’s civil rights by infringing on her right to contract for
medical services.1 The defendants moved to dismiss, and the district court dismissed
1
The remainder of the complaint consisted of state law claims for wrongful death against all
of the defendants, a claim for negligence per se against Aventura, and a claim for vicarious
liability against Aventura. Drs. Marchant and Coy were sued under state law only.
3
with prejudice the claims brought under EMTALA and § 1981.2 This appeal
followed.
DISCUSSION
On appeal, Harry asserts that the district court erroneously ruled that his
amended complaint failed to state a cause of action for violation of EMTALA, 42
U.S.C. § 1395dd(a) and (b) and 42 U.S.C. § 1981. We review the dismissal of a
complaint for failure to state a claim de novo, accepting all allegations in the
complaint as true and construing facts in a light most favorable to the plaintiff. Brown
v. Budget Rent-A-Car Systems, Inc., 119 F.3d 922 (11th Cir. 1997). In doing so, we
are mindful of the Supreme Court’s directive that a complaint should not be dismissed
unless “it appears beyond doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46
(1957).
1. Failure to state a cause of action for violation of EMTALA
Congress enacted EMTALA to prevent hospitals from failing to examine and
stabilize patients who seek treatment in their emergency departments. Hardy v. New
York City Health & Hosp. Corp.,164 F.3d 789, 795 (2d Cir.1999); see Bryan v.
Rectors and Visitors of the Univ. of Virginia, 95 F.3d 349, 351 (4th Cir.1996).
2
The district court declined to assume jurisdiction over the remaining state law claims.
4
Although EMTALA was not intended to be a federal malpractice statute, it was
intended to protect patients by prohibiting hospitals from engaging in “patient
dumping,” the practice of refusing to examine or to treat patients who came to the
emergency room of the hospital but might be unable to pay. See Holcomb v.
Monahan, 30 F.3d 116, 117 n.2 (11th Cir. 1994); Summers v. Baptist Medical Ctr.
Arkadelphia, 91 F.3d 1132, 1136 (8th Cir. 1996)(en banc). EMTALA provides in
relevant part:
(a) Medical screening requirement
In the case of a hospital that has a hospital emergency department, if any
individual (whether or not eligible for benefits under this subchapter)
comes to the emergency department and a request is made on the
individual’s behalf for examination or treatment for a medical condition,
the hospital must provide for an appropriate medical screening
examination within the capability of the hospital’s emergency
department, including ancillary services routinely available to the
emergency department, to determine whether or not an emergency
medical condition (within the meaning of subsection (e)(1) of this
section) exists.
(b) Necessary stabilizing treatment for emergency medical conditions
and labor
(1) In general – If any individual (whether or not eligible for benefits
under this subchapter) comes to a hospital and the hospital determines
that the individual has an emergency medical condition, the hospital
must 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 stabilize the medical condition, or
(B) for transfer of the individual to another medical facility in
5
accordance with subsection (c) of this section.
(c) Restricting transfers until individual stabilized
(1) Rule
If an individual at a hospital has an emergency medical condition which
has not been stabilized (within the meaning of subsection (e)(3)(B) of
this section), the hospital may not transfer the individual unless–
(A)(i) the individual (or a legally responsible person acting on the
individual’s behalf) after being informed of the hospital's
obligations under this section and of the risk of transfer, in writing
requests transfer to another medical facility,
(ii) a physician (within the meaning of section 1395x(r)(1) of this
title) has signed a certification 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 and, in the case of labor, to the unborn child from
effecting the transfer, or
(iii) if a physician is not physically present in the emergency
department at the time an individual is transferred, a qualified
medical person (as defined by the Secretary in regulations) has
signed a certification described in clause (ii) after a physician (as
defined in section 1395x(r)(1) of this title), in consultation with
the person, has made the determination described in such clause,
and subsequently countersigns the certification; and
(B) the transfer is an appropriate transfer (within the meaning of
paragraph (2)) to that facility.
A certification described in clause (ii) or (iii) of subparagraph (A) shall
include a summary of the risks and benefits upon which the certification
is based.
(2) Appropriate transfer
An appropriate transfer to a medical facility is a transfer–
(A) in which the transferring hospital provides the medical
treatment within its capacity which minimizes the risks to the
individual's health and, in the case of a woman in labor, the health
6
of the unborn child;
(B) in which the receiving facility– (i) has available space and
qualified personnel for the treatment of the individual, and (ii) has
agreed to accept transfer of the individual and to provide
appropriate medical treatment;
(C) in which the transferring hospital sends to the receiving
facility all medical records (or copies thereof), related to the
emergency condition for which the individual has presented,
available at the time of the transfer, including records related to
the individual’s emergency medical condition, observations of
signs or symptoms, preliminary diagnosis, treatment provided,
results of any tests and the informed written consent or
certification (or copy thereof) provided under paragraph (1)(A),
and the name and address of any on-call physician (described in
subsection (d)(1)(C) of this section) who has refused or failed to
appear within a reasonable time to provide necessary stabilizing
treatment;
(D) in which the transfer is effected through qualified personnel
and transportation equipment, as required including the use of
necessary and medically appropriate life support measures during
the transfer; and
(E) which meets such other requirements as the Secretary may
find necessary in the interest of the health and safety of
individuals transferred.
42 U.S.C. § 1395dd. Harry alleges causes of action under both § 1395 dd(a), the
medical screening provision, and § 1395 dd(b), the stabilization provision of
EMTALA.
A. “Appropriate medical screening” under EMTALA
In the amended complaint, Harry asserts that Aventura should have performed
a VQ scan on Normil to confirm or rule out a diagnosis of pulmonary embolism, as
7
a VQ scan was “the standard medical screening procedure for patients with similarly
perceived medical condition[s].” While EMTALA does not define “appropriate
medical screening,” Harry is correct that under EMTALA a patient is entitled to
receive a medical screening calculated to identify critical medical conditions. That
screening must be similar to that which would be provided for any other patient with
similar complaints. Holcomb, 30 F.3d at 117 (“the congressional purpose behind the
enactment of EMTALA supports the conclusion that this language only requires a
hospital to provide indigent patients with a medical screening similar to one which
they would provide any other patient”); see Marshall v. East Carroll Parish Hosp.
Serv. Dist., 134 F.3d 319, 322 (5th Cir. 1998) (“appropriate medical screening
examination” is judged by “whether it was performed equitably in comparison to other
patients with similar symptoms”); Correa v. Hosp. San Francisco, 69 F.3d 1184, 1192
(1st Cir. 1995) (“The essence of this requirement is that there be some screening, and
that it be administered evenhandedly.”).
However, there are limitations on EMTALA’s requirement of a medical
screening examination. As noted earlier, EMTALA was not intended to substitute for
a state malpractice claim. Its purpose is to protect patients by eliminating the practice
of hospitals simply discharging or transferring patients with a medical emergency
without first providing a proper screening examination and stabilizing their condition.
8
The requirement of Section 1395dd(a) of “an appropriate medical screening
examination” is linked to its purpose, that is, to determine whether a medical
emergency exists. 42 U.S.C. § 1395dd(a) (“[T]he hospital must provide for an
appropriate medical screening examination . . . to determine whether or not an
emergency medical condition . . . exists.”). It is not intended to ensure each
emergency room patient a correct diagnosis. Power v. Arlington Hosp. Assoc., 42
F.3d 851, 856 (4th Cir. 1994). As the Tenth Circuit noted in Collins v. DePaul Hosp.,
963 F.2d 303 (10th Cir. 1992), “[t]he stated reason in 42 U.S.C. § 1395dd(a) for
requiring a participating hospital to provide an ‘appropriate medical screening
examination’ of one suffering from injuries who presents himself at a hospital is to
determine whether an ‘emergency medical condition exists.’ Nothing more, nothing
less.” Id. at 306-07 (holding that the fact that hospital determined plaintiff had an
emergency medical condition and placed him in ICU defeats a claim based on 42
U.S.C. § 1395dd(a)). See Vickers v. Nash General Hosp., Inc., 78 F.3d 139 (4th Cir.
1996) (holding that EMTALA’s screening provision requires a medical examination
“to determine whether or not an emergency condition exists” and is not concerned
with treatment that follows from the screening).
In this case, the amended complaint asserts that Normil was diagnosed with
pneumonia and possible sepsis or pulmonary embolism. The facts alleged concede
9
that Aventura conducted an initial screening examination and determined that Normil
had an emergency condition, notwithstanding the lack of a VQ scan. Indeed, the
hospital ultimately admitted Normil to the ICU. While Normil may have a valid
malpractice claim with respect to the diagnosis, the allegations do not support a claim
that the hospital did not conduct an initial screening examination to determine whether
an emergency medical condition existed pursuant to 42 U.S.C. § 1395dd(a). We do
not find error in the district court’s dismissal of this claim.
B. Necessary stabilizing treatment under EMTALA
Harry also asserts that notwithstanding the knowledge of Normil’s emergency
condition, the various Appellees violated EMTALA by failing to stabilize her
condition. Section 1395dd(b) requires that once a hospital determines that a patient
has an emergency medical condition, the hospital must provide (a) further
examination and treatment to stabilize the medical condition or (b) transfer the patient
in accordance with the requirements of the statute to a hospital facility that can
provide necessary treatment. See Cooper v. Gulf Breeze Hosp., Inc., 839 F.Supp.
1538, 1544 (N.D.Fla. 1993) (holding that plaintiff’s assertion that defendant violated
the EMTALA by “failing to stabilize plaintiff’s medical condition” before releasing
him sufficient to state a claim under this statute); see also Brooks v. Maryland General
Hosp., Inc., 966 F.2d 708, 710 (4th Cir. 1993) (holding that EMTALA requires an
10
emergency room “to stabilize the [emergency medical] condition or, if medically
warranted, to transfer the person to another facility if the benefits of transfer outweigh
its risks.”).
Appellees assert that Harry cannot prevail in this claim because actions under
§ 1395dd(b) for failure to stabilize a patient are limited to only those situations in
which the hospital releases or transfers the patient without first stabilizing their
condition. Because Normil was eventually admitted as a patient and not transferred,
Appellees argue that this provision of EMTALA is not applicable. In their brief, they
cite to Correa v. Hospital San Francisco, 69 F.3d at 1190, and Cooper v. Gulf Breeze
Hospital, Inc., 839 F. Supp. at 1541, for this proposition. However, Appellees’
reliance on these two cases is misguided. In fact, in Correa, the First Circuit addressed
the appropriate screening provision of EMTALA, not the stabilization provision. Id.
at 1192-93. Moreover, the First Circuit found that § 1395dd(b) “requires that, if an
emergency medical condition exists, the participating hospital must render the services
that are necessary to stabilize the patient’s condition, . . . unless transferring the
patient to another facility is medically indicated and can be accomplished with relative
safety.” Id. at 1190. Cooper is similarly inapposite, as it held that certain Florida
procedural requirements for medical malpractice cases were not applicable in the
context of EMTALA, and that the failure to allege that a hospital discharged a patient
11
for economic reasons did not bar an EMTALA claim. Id. at 1540. It did not address
the stabilization provision, except to say that “a hospital must treat, within its capacity,
any individual so as to ‘stabilize’ their condition or arrange for a transfer of the
individual to another medical facility. . . . Except under certain circumstances, a
hospital may not transfer an individual unless their condition has stabilized.” Id. at
1541 (citation omitted) (emphasis added). At oral argument, Appellees additionally
suggested that, notwithstanding the lack of any limiting language in § 1395dd(b),
another part of the statute, § 1395dd(e)(3)(A), supports their argument. Section
1395dd(e)(3)(A) defines the term “to stabilize,” and provides in relevant part:
The term “to stabilize” means, with respect to an emergency medical
condition described in paragraph (1)(A), to provide such medical
treatment of the condition as may be necessary to assure, within
reasonable medical probability, that no material deterioration of the
condition is likely to result from or occur during the transfer of the
individual from a facility. . . .
Id.
We are persuaded that both the language of EMTALA and Congress’ intent and
purpose in adopting the statute defeat Appellees’ argument as it relates to the period
of time prior to Normil’s admission as a patient. Although the scope of EMTALA is
narrow, nothing in the language of Section 1395dd(b) dictates limiting this subsection
in the manner the Appellees suggest. On the contrary, when a hospital determines that
a medical emergency exists EMTALA specifically dictates that the hospital must
12
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 stabilize the medical condition, or
(B) for transfer of the individual to another medical facility in
accordance with subsection (c) of this section.
42 U.S.C. § 1395dd(b)(1)(A). The language of the statute does not condition the
stabilizing treatment requirement upon transfer. See Battle ex rel. Battle v. Memorial
Hosp. at Gulfport, 228 F.3d 544, 558 (5th Cir. 2000) (“EMTALA requires
stabilization of a known emergency medical condition.”); Vickers, 78 F.3d at 145(“EMTALA requires that when a hospital ‘determines that [an] individual has an
emergency medical condition,’ the hospital must provide for such further examination
and treatment ‘as may be required to stabilize the condition’”) (quoting 42 U.S.C. §
1395dd(b)(1)).
Nor do we find the provision in § 1395dd(e)(3)(A), which relates to how a
patient should be stabilized prior to transfer, contradicts or supercedes the plain
directive in § 1395dd(b). Indeed, such a reading would be inconsistent with the
language of 42 U.S.C. § 1395dd(b), which does not suggest in any way that the
decision to transfer is a prerequisite to the stabilization requirement.3 Moreover, the
3
We note the distinction drawn by the court in Brodersen v. Sioux Valley Memorial Hosp.,
902 F. Supp. 931, 938 n. 6 (N.D. Iowa 1995), which explained that “EMTALA contains parallel,
13
Appellees’ reading would yield results that would contravene both common sense and
the congressional purpose behind the passage of EMTALA. Under Appellees’
construction of EMTALA, treatment to stabilize an emergency condition need not be
rendered until a decision to transfer or release the patient has been made. But that
decision may not be made immediately, or indeed for many hours. Under Appellees’
reading of the statute in these circumstances, it would be permissible for a hospital to
allow a patient’s condition to steadily deteriorate, even to the point of death, until the
decision to transfer were made, when any stabilizing treatment could come too late.
Moreover, such a reading would permit hospitals to entirely defeat this provision by
simply admitting a patient whom it has failed to stabilize. This scenario clearly
conflicts with a common sense reading of EMTALA as well as the congressional
intent to protect patients in this very circumstance.4 See Hardy v. New York City
Health & Hosp. Corp.,164 F.3d 789, 795 (2d Cir.1999) (“The core purpose of
EMTALA . . . is to prevent hospitals from failing to examine and stabilize uninsured
but separate, definitions of the terms ‘to stabilize’ and ‘stabilized.’ The term ‘to stabilize’
indicates what the hospital must do to a patient in an emergency condition who is not transferred
in accordance with subsection (c) [the statute’s transfer provision]. ‘Stabilized’ refers to the
condition the patient must be in to transfer him other than in accordance with the restrictions of
subsection (c).” In other words, if a decision has not been made to transfer a patient in
accordance with the requirements set out in § 1395dd(c), then the hospital must provide the
necessary treatment to stabilize the patient.
4
Likewise it would be illogical to assume that a patient with an emergency medical condition
would not be protected under EMTALA if the hospital intended to transfer the individual but had
not yet done so.
14
patients who seek emergency treatment.”); Bryan v. Rectors and Visitors of the Univ.
of Virginia, 95 F.3d 349, 351 (4th Cir.1996) (“[EMTALA’s] core purpose is to get
patients into the system who might otherwise go untreated and be left without a
remedy.”). See also Hussain v. Kaiser Foundation Health Plan of the Mid-Atlantic
States, Inc., 914 F.Supp. 1331, 1334 (E.D.Va. 1996) (standing for the proposition that
EMTALA’s stabilization requirement applies until a patient is admitted for in-patient
treatment).
Under any reasonable reading of EMTALA, a hospital’s duty to stabilize a
patient “arises once the hospital determines that an emergency condition exists.” Scott
v. Hutchinson, 959 F.Supp. 1351, 1357-58 (D.Kan. 1997); see Summers, 91 F.3d at
1140 (8th Circuit); Vickers, 78 F.3d at 145 (4th Circuit); Urban v. King, 43 F.3d 523,
526 (10th Cir. 1994). In other words, the obligation to provide “within the staff and
facilities available at the hospital, for such further medical examination and such
treatment as may be required to stabilize” the patient’s condition under Section
1395dd(b) is imposed upon a hospital the moment the hospital determines that an
emergency medical condition exists and continues until the patient is stabilized for
transfer, release, or admission.
Given that EMTALA requires a hospital to provide such further medical
examination and treatment as may be required to stabilize a patient once it has
15
determined an emergency medical condition exists, and mindful that in reviewing the
dismissal of Harry’s claim we must accept the allegations of a complaint as true, we
conclude that the district court erred in dismissing Harry’s claim under 42 U.S.C. §
1395dd(b) as it relates to the failure to stabilize Normil’s condition prior to admission
as an in-patient in the hospital.
2. Failure to state a cause of action for a violation of 42 U.S.C. § 1981Harry next asserts that the district court erroneously ruled that the Amended
Complaint failed to state a cause of action for violation of § 1981. The Supreme Court
has stated that “the Federal Rules of Civil Procedure do not require a claimant to set
out in detail the facts upon which he bases his claim. To the contrary, all the Rules
require is ‘a short and plain statement of the claim’ that will give the defendant fair
notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley,
355 U.S. at 47 (footnote omitted). This Court also noted that “[w]e have repeatedly
emphasized the liberality of the principles of notice pleading that govern federal
procedure.” Brown v. Nichols, 8 F.3d 770, 773 (11th Cir. 1993). To establish a claim
under § 1981, a plaintiff must allege facts in support of the following elements: (1) the
plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of
race by the defendant; and (3) the discrimination concerns one or more of the
activities enumerated in the statute. See Green v. State Bar of Texas, 27 F.3d 1083,
16
1086 (5th Cir. 1994).
Appellees argue that even under the liberal notice pleading standard, a
complaint must still state a cause of action sufficient to show that the plaintiff is
entitled to relief. Fullman v. Graddick, 739 F.2d 553 (11th Cir. 1984) (§ 1983 claim).
While this is true, we find that the plaintiff’s amended complaint meets the minimal
requirements to survive a motion to dismiss under Rule 12(b)(6). Indeed, the
amended complaint alleges that (1) Normil was a member of a racial minority, (2)
Appellees intended to discriminate based on Normil’s race, and (3) the discrimination
concerned an alleged contractual obligation. Therefore, we reverse the district court’s
ruling dismissing this claim.
For all of the foregoing reasons, we AFFIRM the district court’s ruling with
respect to Harry’s claim under 42 U.S.C. § 1395dd(a), but REVERSE the district
court’s ruling with respect to Harry’s claims under 42 U.S.C. § 1395dd(b) and 42
U.S.C. § 1981, and REMAND for further proceedings consistent with this opinion.
AFFIRMED IN PART AND REVERSED IN PART.
17