Harry v. Marchant

• Citation: 237 F.3d 1315
• Decision Date: 10 January 2001
• Docket Number: No. 99-13205,99-13205
• Parties: (11th Cir. 2001) Bernie HARRY, as Personal Representative of the Estate of Lisa Normil, deceased, Plaintiff-Appellant, v. Wayne MARCHANT, M.D., Ali Bazzi, M.D., et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1315

237 F.3d 1315 (11th Cir. 2001)

Bernie HARRY, as Personal Representative of the Estate of Lisa Normil, deceased, Plaintiff-Appellant, v. Wayne MARCHANT, M.D., Ali Bazzi, M.D., et al., Defendants-Appellees.

No. 99-13205.

United States Court of Appeals Eleventh Circuit.

Jan. 10, 2001.

Jan. 22, 2001.

Appeal from the United States District Court for the Southern District of Florida. (No. 99-00786-CV-KMM), k. Michael Moore, Judge.

Before BARKETT and WILSON, Circuit Judges, and GEORGE^*, District Judge.

BARKETT, Circuit Judge:

Bernie Harry, as Personal Representative of the Estate of Lisa Normil, appeals the dismissal of his amended complaint against Wayne Marchant M.D., Ali Bazzi M.D., Christopher Hanner M.D., Kevin Coy M.D., Polly Linker R.N., and Miami Beach Healthcare Group, Ltd., d/b/a Aventura Hospital and Medical Center ("Aventura"), alleging violations of 42 U.S.C. 1395dd (Emergency Medical Treatment and Active Labor Act or "EMTALA") and 42 U.S.C. 1981 that contributed to and/or caused the death of Lisa Normil.

BACKGROUND

The complaint in this case alleges the following facts. Lisa Normil was brought to the Aventura Hospital emergency room on November 26, 1997, at approximately 1:17 a.m., by Miami-Dade Fire Rescue and medical treatment was requested on her behalf. She was seen in the emergency room by Dr. Marchant, who diagnosed Normil as suffering from pneumonia and possible sepsis or pulmonary embolism. Marchant contacted Dr. Coy, the on-call attending physician, to report Normil's diagnosis and to request permission to admit her to the intensive care unit ("ICU"). Coy did not immediately authorize Normil's admission, but instead directed Marchant to obtain a ventilation perfusion scan ("VQ scan"). The VQ scan was not performed, allegedly because Aventura had run out of the isotopes necessary to perform the scan. Despite Aventura's inability to perform the VQ scan, Marchant did not arrange to have Normil transferred to another facility. Marchant also contacted Dr. Bazzi, Normil's primary care physician, but Bazzi did not see Normil until approximately five hours later, still in the emergency room. Subsequently, Normil was admitted to the ICU. By that time, Normil had been in the emergency department for more than seven hours.

Although antibiotics had been prescribed, Normil did not receive any while in the ICU. Sometime after her admission to the ICU, Normil lapsed into respiratory and cardiac failure. Dr. Hanner, another emergency department physician, allegedly responded to the "Code Blue" announcement in an untimely manner and failed to properly manage the resuscitation efforts. The attempted resuscitation was unsuccessful, and Normil died in the ICU on November 27, 1997.

Harry filed suit against the defendants, alleging that they had caused and/or contributed to Normil's death. Harry alleged that Aventura had violated EMTALA, by failing to provide Normil with an appropriate screening to determine whether she suffered from an emergency medical condition and by failing to stabilize and treat her condition. He further alleged, pursuant to 42 U.S.C. 1981, that Aventura, Linker, and Bazzi violated Normil's civil rights by infringing on her right to contract for medical services.¹ The defendants moved to dismiss, and the district court dismissed with prejudice the claims brought under EMTALA and 1981.² This appeal followed.

DISCUSSION

On appeal, Harry asserts that the district court erroneously ruled that his amended complaint failed to state a cause of action for violation of EMTALA, 42 U.S.C. 1395dd(a) and (b) and 42 U.S.C. 1981. We review the dismissal of a complaint for failure to state a claim de novo, accepting all allegations in the complaint as true and construing facts in a light most favorable to the plaintiff. Brown v. Budget Rent-A-Car Systems, Inc., 119 F.3d 922 (11th Cir.1997). In doing so, we are mindful of the Supreme Court's directive that a complaint should not be dismissed unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

1.Failure to state a cause of action for violation of EMTALA

Congress enacted EMTALA to prevent hospitals from failing to examine and stabilize patients who seek treatment in their emergency departments. Hardy v. New York City Health & Hosp. Corp., 164 F.3d 789, 795 (2d Cir.1999); see Bryan v. Rectors and Visitors of the Univ. of Virginia, 95 F.3d 349, 351 (4th Cir.1996). Although EMTALA was not intended to be a federal malpractice statute, it was intended to protect patients by prohibiting hospitals from engaging in "patient dumping," the practice of refusing to examine or to treat patients who came to the emergency room of the hospital but might be unable to pay. See Holcomb v. Monahan, 30 F.3d 116, 117 n. 2 (11th Cir.1994); Summers v. Baptist Medical Ctr. Arkadelphia, 91 F.3d 1132, 1136 (8th Cir.1996)(en banc). EMTALA provides in relevant part:

(a) Medical screening requirement

In the case of a hospital that has a hospital emergency department, if any individual (whether or not eligible for benefits under this subchapter) 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 (within the meaning of subsection (e)(1) of this section) exists.

(b) Necessary stabilizing treatment for emergency medical conditions and labor

(1) In general-If any individual (whether or not eligible for benefits under this subchapter) comes to a hospital and the hospital determines that the individual has an emergency medical condition, 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 in accordance with subsection (c) of this section.

(c) Restricting transfers until individual stabilized

(1) Rule

If an individual at a hospital has an emergency medical condition which has not been stabilized (within the meaning of subsection (e)(3)(B) of this section), the hospital may not transfer the individual unless

(A)(i) the individual (or a legally responsible person acting on the individual's behalf) after being informed of the hospital's obligations under this section and of the risk of transfer, in writing requests transfer to another medical facility,

(ii) a physician (within the meaning of section 1395x(r)(1) of this title) has signed a certification that based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual and, in the case of labor, to the unborn child from effecting the transfer, or

(iii) if a physician is not physically present in the emergency department at the time an individual is transferred, a qualified medical person (as defined by the Secretary in regulations) has signed a certification described in clause (ii) after a physician (as defined in section 1395x(r)(1) of this title), in consultation with the person, has made the determination described in such clause, and subsequently countersigns the certification; and

(B) the transfer is an appropriate transfer (within the meaning of paragraph (2)) to that facility.

A certification described in clause (ii) or (iii) of subparagraph (A) shall include a summary of the risks and benefits upon which the certification is based.

(2) Appropriate transfer

An appropriate transfer to a medical facility is a transfer

(A) in which the transferring hospital provides the medical treatment within its capacity which minimizes the risks to the individual's health and, in the case of a woman in labor, the health of the unborn child;

(B) in which the receiving facility-(i) has available space and qualified personnel for the treatment of the individual, and (ii) has agreed to accept transfer of the individual and to provide appropriate medical treatment;

(C) in which the transferring hospital sends to the receiving facility all medical records (or copies thereof), related to the emergency condition for which the individual has presented, available at the time of the transfer, including records related to the individual's emergency medical condition, observations of signs or symptoms, preliminary diagnosis, treatment provided, results of any tests and the informed written consent or certification (or copy thereof) provided under paragraph (1)(A), and the name and address of any on-call physician (described in subsection (d)(1)(C) of this section) who has refused or failed to appear within a reasonable time to provide necessary stabilizing treatment;

(D) in which the transfer is effected through qualified personnel and transportation equipment, as required including the use of necessary and medically appropriate life support measures during the transfer; and

(E) which meets such other requirements as the Secretary may find necessary in the interest of the health and safety of individuals transferred. 42 U.S.C. 1395dd. Harry alleges causes of action under both 1395dd(a), the medical screening provision, and 1395dd(b), the stabilization provision of EMTALA.

A. "Appropriate medical screening" under EMTALA

In the amended complaint, Harry asserts that Aventura should have performed a VQ scan on Normil to confirm or rule out a diagnosis of pulmonary embolism, as a VQ scan was "the standard medical screening procedure...