Eberhardt v. City of Los Angeles

• Citation: 62 F.3d 1253
• Decision Date: 21 August 1995
• Docket Number: No. 93-56564,93-56564
• Parties: , 95 Cal. Daily Op. Serv. 6553, 95 Daily Journal D.A.R. 11,209 Roland Charles EBERHARDT, Plaintiff-Appellant, v. CITY OF LOS ANGELES, Los Angeles Police Department, Defendants, and San Pedro Peninsula Hospital and Larry Orosz, M.D., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1253

62 F.3d 1253

48 Soc.Sec.Rep.Ser. 576, 95 Cal. Daily Op.

Serv. 6553,

95 Daily Journal D.A.R. 11,209

Roland Charles EBERHARDT, Plaintiff-Appellant, v. CITY OF LOS ANGELES, Los Angeles Police Department, Defendants and San Pedro Peninsula Hospital and Larry Orosz, M.D. Defendants-Appellees.

No. 93-56564.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 7, 1995.

Decided Aug. 21, 1995.

Ernest J. Franceschi, Jr., Los Angeles, CA, for plaintiff-appellant.

Jo-Ann Horn Maynard, Rushfeldt, Shelley & Drake, Sherman Oaks, CA, for defendants-appellees, San Pedro Peninsula Hosp. and Larry Orosz, M.D.

Appeal from the United States District Court for the Central District of California.

Before: PREGERSON, POOLE, and D.W. NELSON, Circuit Judges.

PREGERSON, Circuit Judge:

Plaintiff-Appellant Roland Charles Eberhardt ("Eberhardt"), the father of decedent Allan Eberhardt, appeals the district court's grant of summary judgment in favor of Defendants-Appellees San Pedro Peninsula Hospital and Dr. Larry Orosz. Eberhardt sued the hospital and Dr. Orosz for discharging his son in an unstable mental condition, in violation of the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. Sec. 1395dd (1986). Eberhardt's son was fatally shot by Los Angeles police officers 30 hours after he was discharged. We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm.

BACKGROUND

On July 18, 1991, neighbors of Allan Eberhardt called paramedics to report that Allan was suffering from a heroin overdose. Allan admitted to smoking heroin and taking cocaine. The paramedics found that Allan, who was 23 years old, was orientated, had a blood pressure of 130/96, a pulse of 64, respirations of 22, reactive pupils, and clear lungs. The paramedics applied oxygen and administered .8 mg. of Narcan, a drug that reverses the effects caused by morphine and other opioid drugs. The paramedics then transported Allan to San Pedro Peninsula Hospital.

At the hospital, Allan told the triage nurse that he had snorted cocaine and then smoked heroin. The nurse's notes indicate that Allan's chief complaint was a "heroin o.d.," and that he had a history of "psych and cocaine use." Initially, Allan refused treatment, but with coaxing, he agreed to let Dr. Larry Orosz, an emergency medicine physician, examine him.

Dr. Orosz found that Allan's blood pressure had dropped to 130/90, his respirations had dropped to 20, and his pulse remained at 64. Dr. Orosz concluded that the Narcan had improved Allan's condition. Initially lethargic, Allan was now alert and orientated. Dr. Orosz performed a physical examination and found that Allan was within normal parameters. Dr. Orosz did not order any laboratory Dr. Orosz diagnosed a heroin overdose and administered an additional 2 mg. of Narcan. Dr. Orosz then advised Allan to seek follow-up treatment at Harbor General Hospital for long-term methadone treatment. Allan signed a Patient Instruction Sheet, then pulled out his IV and walked out of the emergency room. Dr. Orosz testified in his deposition that right before Allan walked out, Allan told him that he was experiencing a feeling of "impending doom" and that Allan "was upset because we saved his life." Orosz Deposition at 24.

tests, nor did he conduct a psychiatric evaluation or a mental status evaluation.

Thirty hours later, on July 20, 1990, Los Angeles police officers found Allan, who was armed with a machete, breaking the windows of a private residence. The police record indicates that when Allan charged at one of the officers with the machete, the officers shot him several times. The police record also indicates that he was "crazed out." One witness to the shooting testified that Allan shouted "kill me" and "put me out of my misery" before the police shot him. Allan was taken to San Pedro Peninsula Hospital, where he was pronounced dead. A toxicology report by the coroner shows that Allan had a blood alcohol level of .05. No drugs were detected in his system.

On July 1, 1992, Plaintiff-Appellant Roland Charles Eberhardt, Allan's father, filed a Second Amended Complaint for Damages for Allan's wrongful death. Eberhardt claimed that San Pedro Peninsula Hospital and Dr. Orosz violated the Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. Sec. 1395dd (1986), when they discharged Allan in an unstable mental condition. ¹ The district court granted summary judgment in favor of Dr. Orosz because it concluded that the EMTALA does not allow a private right of action against the responsible physician, only the hospital. The district court also granted summary judgment in favor of the hospital because it concluded that the decedent's death was not the "direct result" of the hospital's alleged violation of the EMTALA. ² Eberhardt now appeals.

ANALYSIS

A grant of summary judgment is reviewed de novo. Jesinger v. Nevada Federal Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). The panel must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id.

A. Private Right of Action Against Physicians

In 1986, Congress enacted the Emergency Medical Treatment and Active Labor Act, commonly known as the "Patient Anti-Dumping Act," in response to a growing concern about "the provision of adequate emergency room medical services to individuals who seek care, particularly as to the indigent and uninsured." H.R.Rep. No. 241, 99th Cong., 1st Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 726-27. Congress was concerned that hospitals were "dumping" patients who were unable to pay, by either refusing to provide emergency medical treatment or transferring patients before their conditions were stabilized.

42 U.S.C. Sec. 1395dd(a) provides that if any individual comes to the emergency department of a hospital which participates in Medicare, 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 If the hospital determines that the individual has an emergency medical condition, the hospital must provide either--

to determine whether or not an emergency medical condition ... exists."

(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. Sec. 1395(b).

The question whether the EMTALA authorizes a private right of action against a physician is one of first impression in our circuit. The EMTALA on its face authorizes two types of enforcement, an administrative action for civil money penalties and a private right of action for civil damages. A participating hospital that negligently violates the EMTALA is subject to a civil money penalty of not more than $50,000. 42 U.S.C. Sec. 1395dd(d)(1)(A). Any physician who is responsible for the examination, treatment, or transfer of an individual, who negligently violates the EMTALA, is also subject to a civil money penalty of not more than $50,000. 42 U.S.C. Sec. 1395dd(d)(1)(B).

With respect to an aggrieved individual's private right of action, 42 U.S.C. Sec. 1395dd(d)(2) provides:

Any individual who suffers personal harm as a direct result of a participating hospital's violation of a requirement of this section may, in a civil action against the participating hospital, obtain those damages available for personal injury under the law of the State in which the hospital is located, and such equitable relief as is appropriate.

(Emphasis added.)

The plain text of the EMTALA explicitly limits a private right of action to the participating hospital. Perhaps the most widely accepted canon of statutory construction instructs us to first determine "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter, for the court ... must give effect to the unambiguously expressed intent of Congress." Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984).

Notwithstanding the clear statutory language, Eberhardt urges us to find an implied private right of action against physicians. He argues that under the standard articulated in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), such a cause of action would enable individuals to enforce the EMTALA more effectively. Eberhardt's argument fails.

In Cort, the Supreme Court set forth the four-part test for determining whether a private remedy is implicit in a statute not expressly providing one: (1) Does the statute create a federal right in favor of the plaintiff? (2) Is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? (3) Is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? (4) Is the cause of action one traditionally relegated to state law? Id. at 78, 95 S.Ct. at 2087-88.

Consistent with the statutory language, the legislative history of the EMTALA evinces a clear Congressional intent to bar individuals from pursuing civil actions against physicians. An earlier draft of Sec. 1395dd(d)(2), the provision which provides for a private right of action, "did not precisely identify which parties could bring actions under the provision, nor did it identify those against whom they could bring such an action." H.R.Rep. No. 241, 99th Cong., 1st Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 728. The House Judiciary Committee then amended the provision to its present form to "clarif[y] that actions...