Marshall on Behalf of Marshall v. East Carroll Parish Hosp. Service Dist.

Decision Date09 February 1998
Docket NumberNo. 97-30592,97-30592
PartiesShirley MARSHALL, Individually and on Behalf of Nydia MARSHALL, Plaintiff-Appellant, v. EAST CARROLL PARISH HOSPITAL SERVICE DISTRICT, doing business as East Carroll Parish Hospital, Defendant-Appellee. Summary Calendar.
CourtU.S. Court of Appeals — Fifth Circuit

Charles H. Kammer, III, Shreveport, LA, for Plaintiff-Appellant.

Patrick Scott Jolly, Watson, Blanche, Wilson & Posner, Baton Rouge, LA, for Defendant-Appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before WIENER, BARKSDALE and EMILIO M. GARZA, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Simply put, this appeal concerns the effect to be given an affidavit filed in opposition to a motion for summary judgment. Shirley Marshall, individually and on behalf of her minor daughter, Nydia Marshall, contests the summary judgment granted East Carroll Parish Hospital Service District (the Hospital), dismissing her action, brought under the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd. We AFFIRM.

I.

Fifteen-year-old Nydia Marshall was brought by ambulance to the Hospital's emergency room on 18 October 1994, because she "wouldn't move" while at school after the bell rang. Upon her arrival, Hospital personnel took her history and vital signs. She was unable to verbally communicate while at the emergency room, but cooperated when removing her clothing and watched movement of persons coming in and out of the emergency room. She was examined by Dr. Marc Horowitz, who also had several medical tests performed on her.

Dr. Horowitz diagnosed Nydia Marshall as having a respiratory infection and discharged her. He informed Shirley Marshall that her daughter's failure to communicate was of unknown etiology, and advised her to continue administering the medications which had been prescribed by the family doctor on the previous day and to return to the emergency room if the condition deteriorated. The complaint alleged that, later that same day, Nydia Marshall's symptoms continued to worsen, and she was taken to the emergency room at a different hospital, where she was diagnosed as suffering from a cerebrovascular accident consistent with a left middle cerebral artery infarction.

This action claimed that the Hospital violated EMTALA by failing to provide Nydia Marshall with an appropriate medical screening examination and failing to stabilize her condition prior to discharge. The Hospital moved for summary judgment and submitted supporting affidavits from Dr. Horowitz and a registered nurse who had participated in Nydia Marshall's treatment in the Hospital's emergency room.

The district court allowed Marshall three months in which to conduct discovery necessary to respond to the motion. In opposition to that motion, Marshall submitted a statement of contested facts and the sworn affidavit of Lena Middlebrooks, a licensed practical nurse, who had been on duty at the Hospital emergency room when Nydia Marshall was treated.

The district court granted summary judgment for the Hospital on the ground that no material fact issues were in dispute.

II.

Marshall contends that Middlebrooks' affidavit created a genuine issue of material fact. Of course, we review a grant of summary judgment de novo. E.g., Green v. Touro Infirmary, 992 F.2d 537, 538 (5th Cir.1993).

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); e.g., Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc). Along this line, the evidence, and the inferences to be drawn from it, are viewed in the light most favorable to the non-movant. E.g., LeJeune v. Shell Oil Co., 950 F.2d 267, 268 (5th Cir.1992). And, if the movant meets the initial burden of showing that there is no material fact issue, the burden shifts to the non-movant to produce evidence or set forth specific facts showing the existence of a genuine issue for trial. FED. R. CIV. P. 56(e); e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

The Act provides in relevant part:

In the case of a hospital that has a hospital emergency department, if any individual ... 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 ... exists.

42 U.S.C. § 1395dd(a) (emphasis added). The Act defines an "emergency medical condition", in pertinent part, as

(A) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in--

(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or part....

42 U.S.C. § 1395dd(e)(1). And, if the hospital determines that the individual has an "emergency medical condition", then

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....

42 U.S.C. § 1395dd(b)(1).

Marshall contends that Middlebrooks' affidavit demonstrates that Hospital personnel knew that Nydia Marshall had an emergency medical condition and were very concerned about the cursory examination provided by Dr. Horowitz; that Dr. Horowitz should have performed a fundoscopic examination, cranial nerve testing, motor strength testing, and deep tendon reflex testing; and that Nydia Marshall should have been admitted to the Hospital for observation of her unexplained altered mental status. In essence, Marshall is contending that Dr. Horowitz committed malpractice in failing to accurately diagnose an emergency medical condition.

We agree with the other courts which have interpreted EMTALA that the statute was not intended to be used as a federal malpractice statute, but instead was enacted to prevent "patient dumping", which is the practice of refusing to treat patients who are unable to pay. See Summers v. Baptist Med. Center Arkadelphia, 91 F.3d 1132, 1136-37 (8th Cir.1996) (en banc); Vickers v. Nash General Hosp., Inc., 78 F.3d 139, 142 (4th Cir.1996); Correa v. Hospital San Francisco, 69 F.3d 1184, 1192 (1st Cir.1995), cert. denied, 517 U.S. 1136, 116 S.Ct. 1423, 134 L.Ed.2d 547 (1996); Eberhardt v. City of Los Angeles, 62 F.3d 1253, 1255, 1258 (9th Cir.1995); Urban By and Through Urban v. King, 43 F.3d 523, 525 (10th Cir.1994); Holcomb v. Monahan, 30 F.3d 116, 117 & n. 2 (11th Cir.1994); Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1038-39 (D.C.Cir.1991); Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266, 268, 272 (6th Cir.1990).

Accordingly, an EMTALA "appropriate medical screening examination" is not judged by its proficiency in accurately diagnosing the patient's illness, but rather by whether it was performed equitably in comparison to other patients with similar symptoms. See Summers, 91 F.3d at 1138; Vickers, 78 F.3d at 143; Correa, 69 F.3d at 1192-93; Repp v. Anadarko Mun. Hosp., 43 F.3d 519, 522 (10th Cir.1994); Holcomb, 30 F.3d at 117. If the Hospital provided an appropriate medical screening examination, it is not liable under EMTALA even if the physician who performed the examination made a misdiagnosis that could subject him and his employer to liability in a medical malpractice action brought under state law. See Eberhardt, 62 F.3d at 1258 ("The hospital's failure to detect the decedent's alleged suicidal tendency may be actionable under state medical malpractice law, but not under the EMTALA."); Baber v. Hospital Corp. of America, 977 F.2d 872, 879-80 (4th Cir.1992) ("Questions regarding whether a physician or other hospital personnel failed properly to diagnose or treat a patient's condition are best resolved under existing and developing state negligence and medical malpractice theories of recovery."); Gatewood, 933 F.2d at 1039 ("In the absence of any allegation that the [hospital] departed from its standard emergency room procedures in treating [patient], questions related to [patient's] diagnosis remain the exclusive province of local negligence and malpractice law."). Therefore, a treating physician's failure to appreciate the extent of the patient's injury or illness, as well as a subsequent failure to order an additional diagnostic procedure, may constitute negligence or malpractice, but cannot support an EMTALA claim for inappropriate screening. See Summers, 91 F.3d at 1138-39 (" 'faulty' screening ... does not come within EMTALA"); Vickers, 78 F.3d at 143-44 (citation omitted) (EMTALA "does not impose any duty on a hospital requiring that the screening result in a correct diagnosis").

In order to avoid summary judgment, Marshall was required to present evidence showing a material fact issue as to whether the Hospital provided an EMTALA appropriate medical screening examination. But, an "appropriate medical screening examination" is not defined by EMTALA. Most of the courts that have interpreted the phrase have defined it as a screening examination that the hospital would have offered to any other patient in a similar condition with similar...

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