42 F.3d 851 (4th Cir. 1994), 92-2195, Power v. Arlington Hosp. Ass'n

Docket Nº:92-2195.
Citation:42 F.3d 851
Party Name:Susan M. POWER, Plaintiff-Appellee, v. ARLINGTON HOSPITAL ASSOCIATION, Defendant-Appellant, and Alexandria Physicians Group, Limited; Benedict J. Semmes, M.D.; Robert M. White; General Internal Medicine Group, PC; Arthur A. Rubin; Mary J. Major, Defendants. Virginia Hospital Association; American Hospital Association, Amici Curiae.
Case Date:December 12, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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42 F.3d 851 (4th Cir. 1994)

Susan M. POWER, Plaintiff-Appellee,




Alexandria Physicians Group, Limited; Benedict J. Semmes,

M.D.; Robert M. White; General Internal Medicine

Group, PC; Arthur A. Rubin; Mary J.

Major, Defendants.

Virginia Hospital Association; American Hospital

Association, Amici Curiae.

No. 92-2195.

United States Court of Appeals, Fourth Circuit

December 12, 1994

Argued Feb. 7, 1994.

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[Copyrighted Material Omitted]

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ARGUED: William Daniel Cremins, Walsh & Cremins, P.C., Fairfax, VA, for appellant. Scott Alton Mills, Jackson & Campbell, P.C., Washington, DC, for appellee. ON BRIEF: Lewis T. Booker, Hunton & Williams, Richmond, VA, for appellant. William F. Causey, Jackson & Campbell, P.C., Washington, DC; James H. Falk, Sr., James H. Falk, Jr., John M. Falk, Falk Law Firm, Washington, DC, for appellee. Judith B. Henry, Crews & Hancock, Richmond, VA, for amicus curiae Virginia Hosp. Ass'n. Gregory M. Luce, James E. Anklam, Jones, Day, Reavis & Pogue, Washington, DC; Frederic J. Entin, James A. Henderson, Maureen D. Mudron, American Hosp. Ass'n, Chicago, IL, for amicus curiae American Hosp. Ass'n.

Before ERVIN, Chief Judge, and WIDENER and WILLIAMS, Circuit Judges.

Affirmed in part; reversed in part; and remanded by published opinion. Judge WILLIAMS wrote the opinion, in which Judge WIDENER joined. Chief Judge ERVIN wrote a concurring and dissenting opinion.


WILLIAMS, Circuit Judge:

Susan Power came to the Arlington Hospital emergency room complaining of pain in her left hip, her lower left abdomen, and in her back running down her leg, and reporting that she was unable to walk, was shaking, and had severe chills. After two nurses and two physicians saw Power, the second physician gave her a prescription for pain medication and the name of an orthopedist, told her to return to the hospital if the pain got worse, and discharged her. Power returned to the Arlington Hospital emergency room the next day in an unstable condition with virtually no blood pressure. She was diagnosed as suffering from septic shock and was immediately admitted to the intensive care unit of the Hospital. Power remained in intensive care for over four months during which time she was on life support equipment, had both legs amputated below the knee, lost sight in one eye, and experienced severe and permanent lung damage. In July 1990, Power was eventually transferred from Arlington Hospital to a hospital in her hometown in England.

Power brought this suit against Arlington Hospital alleging in Count I that it violated the Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA), 42 U.S.C.A. Sec. 1395dd (West 1992), by failing to provide her an "appropriate medical screening"

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when she initially presented to the emergency room, 42 U.S.C.A. Sec. 1395dd(a) (West 1992). In Count III, Power alleged that Arlington Hospital violated EMTALA by transferring her to the hospital in England while she was still in an unstable condition, 42 U.S.C.A. Sec. 1395dd(c). 1 The district court ruled on a motion in limine that the Virginia cap on medical malpractice damages, Va.Code Ann. Sec. 8.01-581.15 (Michie 1992), and the Virginia liability limits for tax-exempt hospitals, Va.Code Ann. Sec. 8.01-38 (Michie 1992), did not apply to Power's EMTALA causes of action. Power v. Arlington Hosp., 800 F.Supp. 1384, 1392 (E.D. Va.1992). The district court also denied Arlington Hospital's motion for summary judgment on Power's EMTALA claims on the ground that there were genuine issues of material fact.

The case proceeded to trial and the jury returned a verdict in favor of Susan Power on Count I, the appropriate medical screening claim, and awarded actual damages of $5 million. The jury found in favor of Arlington Hospital on Count III, the transfer claim. The district court denied Arlington Hospital's post-trial motions for a new trial and to set aside the verdict.

In this appeal, Arlington Hospital raises questions regarding the appropriate legal standard for recovery in an EMTALA claim, EMTALA's interrelationship with the two Virginia statutes (one which caps damages for medical malpractice suits and the other which limits liability for tax-exempt hospitals), as well as the applicability of Virginia's administrative procedures for malpractice cases to EMTALA claims. The Hospital also challenges the district court's admission of two physicians' testimony and its denial of the Hospital's motion for a new trial. We conclude that Virginia's medical malpractice cap and limitation on liability for tax-exempt hospitals do apply to Power's EMTALA claims. Therefore, we vacate the jury's award of damages and remand for the district court to conform these verdicts to the applicable caps. In all other respects, we affirm the district court.


We begin with a more detailed recitation of the factual background of this case. Susan Power, a citizen of Great Britain, was brought by her fiance to the emergency room at Arlington Hospital on February 24, 1990, at approximately 5:45 a.m. At the time, she was 33 years old, unemployed, and had no health insurance. Power complained of pain in her left hip, lower left abdomen, pain in her back running down her leg, and that she was unable to walk. She was shaking and had severe chills. Power also had a sizeable boil visible on her cheek, though the emergency room nurses and physicians testified they did not see the boil and there is no mention of it in the medical records for that day.

Power was initially taken to a treatment room and seen by a nurse, Barbara Goldy, R.N., who took a brief medical history from her, did a nursing assessment, and performed a "dip stick" urinalysis. The medical information which was recorded on Power's chart indicated that she was unemployed and uninsured. Power was next seen by an emergency room physician, Dr. Heiman, who spoke with her, examined her hip, did a motor examination and leg extension test, all of which were within normal limits, and ordered x-rays. Another nurse, Christine Stadher, R.N., completed the patient information data and took Power's vital signs, including her blood pressure, all of which were normal.

Shifts changed at 7:00 a.m., and Dr. Semmes, another emergency room physician, examined Power. Dr. Semmes testified that he did not look at the patient intake information and did not record the results of the x-ray on Power's chart. He did record on Power's chart acute left hip pain of unknown etiology.

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Dr. Semmes performed a neurological examination and his preliminary assessment was that "she did not look ill in terms of toxic, but she was uncomfortable." (J.A. at 354.) The only diagnostic procedure Dr. Semmes ordered was a urinalysis test; he did not order any other diagnostic procedures, including a blood test. Based on his examination, Dr. Semmes believed that Power's pain was localized and musculoskeletal in nature, and that she did not have an infection and was not ill. The hip x-ray was negative in all respects. Before the results of the urinalysis came back from the lab, Dr. Semmes discharged Power. He gave her a prescription for anti-inflammatory and pain medications and instructed her to avoid bearing weight on her left leg. Dr. Semmes also told Power that if her pain persisted or became worse, she should return to the emergency room or call the orthopedic surgeon whose name, address, and phone number he had given to her. 2

When her pain worsened, Power returned to the Arlington Hospital emergency room at approximately 10:15 p.m. on the following day, February 25, 1990. She presented with the same symptoms as the day before except that by this time she was in an unstable condition with virtually no blood pressure. Her vital signs signified that she was in severe shock, which the doctors believed was probably septic in nature, and she was admitted to the intensive care unit at Arlington Hospital at approximately 1:00 a.m. An orthopedic surgeon concluded that the hip pain was not the source of Power's problems, and an internist, in consultation with an infectious disease specialist, decided to treat her with antibiotics pending the results of her blood work. The ultimate etiology of Power's illness was that she had "seeded" an infection in her blood approximately 10 days earlier when she had attempted to lance the boil on her face.

Power was in critical condition for the first several months of her hospitalization. Because of her level of shock, the medications required to control her infection and maintain her blood pressure, and the circulatory problems caused by these medications, Power had to have both legs amputated below the knee. She also lost sight in one eye and developed severe and permanent lung damage. By mid-April, Power's status was no longer critical. On July 1, 1990, Power was transferred on a gurney by commercial airliner to Central Middlesex Hospital in London, England.

Dr. Heiman and Dr. Semmes testified that Arlington Hospital had no written protocols or procedures describing how doctors should conduct an appropriate medical screening for patients presenting to the emergency room. Dr. Semmes did describe the typical procedure as the following: "take a history, perform a physical exam, have a differential diagnosis in your mind, order appropriate diagnostic tests, develop a treatment plan, determine a need whether to admit or discharge the patient, and implement the treatment plan." (J.A. at 350.) Dr. Semmes testified unequivocally that he would not have treated any other patient with the same complaints and vital signs any differently than he treated Power. There was also testimony, however, that Dr. Semmes did...

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