Abercrombie v. Osteopathic Hosp. Founders Ass'n

• Decision Date: 05 December 1991
• Docket Number: No. 90-5184,90-5184
• Parties: Medicare & Medicaid Guide P 39,746 Doris ABERCROMBIE, Theresa Bookout, Ed Pruitt, Eddie Pruitt, Jerry Pruitt, Lewis Pruitt, Ricky Pruitt, Ronnie Pruitt, Terry Pruitt, and Wanda Robay, individually, and as surviving children and next of kin of Eileen W. Pruitt, deceased, Plaintiffs-Appellants, v. OSTEOPATHIC HOSPITAL FOUNDERS ASSOCIATION, an Oklahoma corporation, d/b/a Oklahoma Osteopathic Hospital, Roy Guthrie, D.O., and Thomas Schooley, D.O., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 676

950 F.2d 676

Medicare & Medicaid Guide P 39,746

Doris ABERCROMBIE, Theresa Bookout, Ed Pruitt, Eddie Pruitt,

Jerry Pruitt, Lewis Pruitt, Ricky Pruitt, Ronnie Pruitt, Terry Pruitt, and Wanda Robay, individually, and as surviving children and next of kin of Eileen W. Pruitt, deceased, Plaintiffs-Appellants, v. OSTEOPATHIC HOSPITAL FOUNDERS ASSOCIATION, an Oklahoma

corporation, d/b/a Oklahoma Osteopathic Hospital,

Roy Guthrie, D.O., and Thomas Schooley,

D.O., Defendants-Appellees.

No. 90-5184.

United States Court of Appeals, Tenth Circuit.

Dec. 5, 1991.

Matt A. Melone (Jerry M. Melone of Melone-Shepherd-Schroeder-Allred-Thiessen-Melone, with him on the brief), Tulsa, Okl., for plaintiffs-appellants.

Douglas W. Golden OBA # 3433 (Dan A. Rogers OBA # 7717 of Rogers, Honn & Associates, with him on the brief), Tulsa, Okl., for defendant-appellee Roy D. Guthrie, D.O.

Stephen J. Rodolf OBA # 7702 (John D. Clayman OBA # 11790 of Barkley, Rodolf, McCarthy & Rodolf, with him on the brief), Tulsa, Okl., for Thomas Schooley, D.O. and Oklahoma Osteopathic Hosp.

Before EBEL and McWILLIAMS, Circuit Judges, and JENKINS, District Judge. ^*

McWILLIAMS, Circuit Judge.

This case concerns the Emergency Medical Treatment and Active Labor Act, sometimes referred to as COBRA. 42 U.S.C. § 1395dd, et seq. ¹

Eileen W. Pruitt, age 68, began to experience chest pain in the early morning hours of February 16, 1988, and was taken to the Osteopathic Hospital Founders Association Mrs. Pruitt was examined by her family physician, Dr. Carson Todd, D.O., at seven-thirty a.m. on February 16, 1988. After administering an EKG, Dr. Todd's diagnosis of Mrs. Pruitt was that she was experiencing an acute, extensive and well-developed transmural inferior myocardial infarction. Mrs. Pruitt was again taken to Osteopathic Hospital on February 16, 1988. On February 17, 1988, Mrs. Pruitt suffered a massive coronary, and she died in the Hospital on March 11, 1988, the cause of death being listed as myocardial infarction.

                in Tulsa, Oklahoma at three o'clock a.m. on February 16, 1988.   She was examined by Dr. Thomas Schooley, D.O. and Dr. Roy Guthrie, D.O.   An EKG was given.   A diagnosis of anterior chest wall syndrome was made, and at about five o'clock a.m. on February 16, 1988, Mrs. Pruitt was sent home with directions to contact her family physician if the pain persisted
                

On May 9, 1989, Mrs. Pruitt's ten surviving children brought the present action in the United States District Court for the Northern District of Oklahoma, naming as defendants the Hospital and Drs. Schooley and Guthrie and alleging that Drs. Schooley and Guthrie were acting as agents, servants and employees of the Hospital. In their complaint the plaintiffs alleged that on February 16, 1988, their mother presented herself at the Hospital's emergency department complaining of acute symptoms of chest, neck and shoulder pain, and that in connection therewith the defendants "failed to appropriately screen, stabilize and diagnose" her condition and caused her to be transferred home when her condition was not "stabilized." The foregoing claim was based on the provisions of COBRA, which the plaintiffs alleged imposed "strict liability" on the defendants based on violations of federal standards concerning emergency hospital treatment as set forth in 42 U.S.C. § 1395dd.

Plaintiffs also asserted a pendent wrongful death claim, and, as a basis therefor, alleged that the defendants were careless and negligent in their care and treatment of Mrs. Pruitt. The plaintiffs sought damages in the amount of $2,000,000 and punitive damages in the amount of $1,000,000. By separate answers, the three defendants, inter alia, denied liability.

A pretrial conference order contained the following:

Federal jurisdiction is invoked upon the ground: The defendants have and are under and subject to "strict liability" for their violation of federal law pursuant to 42 U.S.C. § 1395dd, et seq., which is known as the Cobra Statute.

A jury trial resulted in verdicts in favor of all defendants, and judgments in favor of the defendants were duly entered.

Plaintiffs filed a timely motion for a new trial in which they alleged that the district court erred in giving Instruction No. 21 and in connection therewith also erred in refusing to give plaintiffs' tendered instruction nos. 19, 20, and 23. More will be said about the instructions later. In the motion for a new trial, the plaintiffs did not challenge the propriety of giving special interrogatories to the jury by the district court, although the statement was made that the special interrogatories, and the answers thereto, did not cure the error in instruction no. 21. More, too, will be said about the special interrogatories later. In any event, the motion for a new trial was denied, and plaintiffs appeal therefrom.

After both the plaintiffs and the defendants rested their case, counsel and the district court conferred on instructions. The plaintiffs tendered their instruction nos. 19, 20, and 23, which are attached to this opinion as Attachments A, B, and C, respectively. Attachment D is instruction no. 21, which the district court initially proposed to give the jury. Plaintiffs had no objection to that instruction no. 21. However, counsel for the Hospital and Dr. Schooley objected to the proposed instruction no. 21, arguing that under Thornton v. Southwest Detroit Hospital, 895 F.2d 1131 (6th Cir.1990), the word "or" appearing in line 26 of the proposed instruction no. 21 (Attachment D) should be replaced with the word "and." Counsel for Dr. Guthrie apparently joined in that objection and also in connection therewith spoke as follows: "I believe the instruction should read that the In response to defendants' objections to the proposed instruction no. 21 counsel for plaintiffs stated that they believed the "statute itself is clear on the issue." The district court then took the matter under advisement.

patient was negligently discharged when she was in an unstable condition...."

Prior to closing argument, the district judge advised counsel of the changes he was going to make in the proposed instructions. In this regard, the district court announced that it was sustaining the defendants' objections to proposed instruction no. 21 and would replace the word "or" with the word "and," and that the "word 'negligently' would be inserted before the word 'discharged.' " In connection with these changes, the district court stated that "[t]he plaintiffs' objection to that is noted." Attachment E is instruction no. 21 as it was given to the jury.

After closing argument, but before the instructions were read to the jury, counsel for plaintiffs stated that "[i]n case our objection to instruction number 21 was not clear yesterday, we do wish to make the record concerning instruction number 21 which the Court intends to give the jury this morning." The district court, noting that closing argument had already been made, thought that any expansion by the plaintiffs on their objection to instruction no. 21 was not timely. Plaintiffs' counsel was nonetheless permitted to "make the record," and counsel objected to replacing the word "or" with the word "and" and to inserting the word "negligently" in the instruction. The district judge stated that he didn't recall whether counsel's objection made the previous day to the changes in instruction no. 21 was any different from the objection then being made, but opined that only the objection made the previous day was "timely." The district judge did observe that on the preceding day he had "noted" plaintiffs' objections to the modification of instruction no. 21.

On appeal, plaintiffs argue that instruction no. 21, as it was changed upon objections by the defendants, incorrectly stated the applicable law, and that their tendered, but rejected, instruction nos. 19, 20, and 23 correctly stated the law on the subject matter. Counsel states that instruction no. 21 instructed the jury that before it could find for the plaintiffs it must find that the Hospital did not provide an appropriate medical screening examination AND that Mrs. Pruitt was "negligently" discharged in an unstabilized condition. Counsel states that under COBRA the plaintiffs were not required to prove both inappropriate screening AND premature discharge and that proof of either entitled the plaintiffs to recover. Further, counsel argues that it was error to inject the issue of negligence into plaintiffs' COBRA claims. ²

Defendants first argue that plaintiffs' objection to instruction no. 21 did not comply with Fed.R.Civ.P. 51, and that under the rule plaintiffs may not now assign as error the giving of instruction no. 21. We disagree with that argument. In the first place, plaintiffs themselves had no objection to instruction no. 21 as it was originally written, and it was the defendants who objected thereto. When the district court upheld defendants' objections and changed the word "or" to the word "and," and inserted the word "negligently" into the instruction, the district court "noted" that the plaintiffs objected to the changes. Further, after oral argument, but before instructing the jury, counsel more specifically advised the district court of his objection to the changes in instruction no. 21.

Rule 51 provides that a party may not assign as error the giving of an instruction unless he states distinctly the matter objected to and the grounds of the objection "before the jury retires to consider its verdict." Our reading of the record before us leads us to conclude that plaintiffs' counsel did comply with the rule. Further, it appears to us that both the parties and the district court clearly knew just what was in dispute. Accordingly, we will consider on its merits plaintiffs' challenge to instruction COBRA applies to any hospital that receives Medicare payments and has an emergency department. Enacted to prevent the practice by private...