Almond v. Town of Massena

• Decision Date: 08 January 1998
• Citation: 237 A.D.2d 94,667 N.Y.S.2d 475
• Parties: , 1998 N.Y. Slip Op. 35 Marcel ALMOND, Individually and as Administrator of the Estate of Lisa A. Almond, Deceased, Respondent, v. TOWN OF MASSENA et al., Defendants, and Jayant Jhaveri, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 475

667 N.Y.S.2d 475

237 A.D.2d 94, 1998 N.Y. Slip Op. 35

Marcel ALMOND, Individually and as Administrator of the Estate of Lisa A. Almond, Deceased, Respondent, v. TOWN OF MASSENA et al., Defendants and Jayant Jhaveri, Appellant.

Supreme Court, Appellate Division Third Department.

Jan. 8, 1998.

Brown & Tarantino (Ann M. Campbell, of counsel), Buffalo, for appellant.

Poissant & Nichols P.C. (Joseph P. Nichols, of counsel), Malone, for respondent.

Before MIKOLL, J.P., and CREW, WHITE, PETERS and CARPINELLO, JJ.

WHITE, Justice.

Appeals (1) from that part of an order of the Supreme Court (Demarest, J.), entered June 19, 1996 in St. Lawrence County, which denied defendant Jayant Jhaveri's motion to dismiss plaintiff's third cause of action for failure to state a cause of action, and (2) from an order of said court, entered May 9, 1997 in St. Lawrence County, which denied defendant Jayant Jhaveri's motion for reconsideration.

Lisa A. Almond (hereinafter decedent) presented herself at defendant Massena Memorial Hospital Emergency Room on August 2, 1993 suffering from an asthma attack. She received treatment in the emergency room and later that night was admitted to the hospital's intensive care unit by her personal physician, defendant Jayant Jhaveri. Unfortunately, decedent sustained a respiratory arrest on August 3, 1993 and, after being transferred to a hospital in Burlington, Vermont, died on August 4, 1993. Thereafter, plaintiff commenced this medical malpractice action in which he alleges a cause of action predicated upon the Emergency Medical Treatment and Active Labor Act (hereinafter EMTALA) (42 U.S.C. § 1395dd). Jhaveri, the hospital and defendant Nancy Faucher moved pursuant to CPLR 3211(a)(7) to dismiss this cause of action. Supreme Court denied the motions, including Jhaveri's motion for reargument. Jhaveri appeals, maintaining that EMTALA does not authorize a civil action against a physician.

Initially, we shall dismiss the appeal from Supreme Court's order denying reargument since no appeal lies from such order (see, Spa Realty Assocs. v. Springs Assocs., 213 A.D.2d 781, 783, 623 N.Y.S.2d 22).

EMTALA was enacted in 1986 in response to hospitals refusing to provide emergency medical treatment to patients unable to pay or transferring them before emergency conditions were stabilized (see, Vickers v. Nash Gen. Hosp., 4th Cir., 78 F.3d 139, 142). Under EMTALA, when an individual seeks treatment at an emergency room a hospital must provide an appropriate medical screening examination to determine if an emergency medical condition exists and, if it does, the hospital must stabilize the condition and generally cannot transfer the patient until the medical condition has stabilized (42 U.S.C. § 1395dd[a], [b], [c] ). A hospital or any physician that negligently violates EMTALA is subject to a civil monetary penalty that is assessed in an administrative proceeding (42 U.S.C. § 1395dd[d][1][A], [B] ). In addition, an individual who suffers personal harm may maintain a civil action against the participating hospital (42 U.S.C. § 1395dd[d][2][A] ).

Despite this clear statutory language limiting civil actions to hospitals, two Federal District Courts seem to indicate that civil actions may be maintained against physicians (see, Sorrells v. Babcock, 733 F.Supp. 1189; Thompson v. St. Anne's Hosp., 716 F.Supp. 8). Significantly, these cases have not drawn support from the Federal Circuit Courts as they have held that EMTALA does not authorize a private right of action against a physician (see, Eberhardt v. City of Los Angeles, 9th Cir., 62 F.3d 1253, 1255-1257; King v. Ahrens, 8th Cir., 16 F.3d 265, 270-271; Delaney v. Cade, 10th Cir., 986 F.2d 387, 393-394; Baber v. Hospital Corp....