Preston v. Meriter Hosp., Inc.

• Decision Date: 26 February 2004
• Docket Number: No. 03-1376.,03-1376.
• Parties: Shannon PRESTON, Plaintiff-Appellant, Charles JOHNSON and Estate of Bridon M. Johnson, Plaintiffs, v. MERITER HOSPITAL, INC. and Wisconsin Patients Compensation Fund, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

271 Wis.2d 721

2004 WI App 61

678 N.W.2d 347

Shannon PRESTON, Plaintiff-Appellant,¹ Charles JOHNSON and Estate of Bridon M. Johnson, Plaintiffs, v. MERITER HOSPITAL, INC. and Wisconsin Patients Compensation Fund, Defendants-Respondents.

No. 03-1376.

Court of Appeals of Wisconsin.

Submitted on briefs December 5, 2003.

Decided February 26, 2004.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James Bopp, Jr. and Thomas J. Marzen of National Legal Center for the Medically Dependent & Disabled, Inc., Terre Haute, Indiana; and Dennis E. Robertson of Rumf Law Office, Cambridge. On behalf of the defendant-respondent, the cause was submitted on the brief of Curtis S. Swanson and David J. Pliner of Corneille Law Group, L.L.C., Madison.

Before Deininger, P.J., Dykman and Vergeront, JJ.

¶ 1. DYKMAN, J.

Shannon Preston appeals from a judgment dismissing her claims against Meriter Hospital, Inc. and The Wisconsin Patient's Compensation Fund (Meriter). She raises four issues on appeal. First, she asserts that the Emergency Medical Treatment and Labor Act (EMTALA), 42 U.S.C. § 1395dd(b)(1)(A) (2001),² required Meriter to stabilize her infant child, even though the hospital did not transfer the child to another hospital. Second, she contends that she stated a claim that Meriter violated the screening requirement in § 1395dd(a). Third, she claims that she did not need to provide expert testimony to establish her negligence claim. Fourth, she argues that Meriter owed her a duty of care that included obtaining her informed consent regarding treatment for her infant child. We affirm.

BACKGROUND

¶ 2. The parties do not dispute the material facts of the case. Preston arrived at Meriter Hospital on November 9, 1999, twenty-three weeks pregnant. In Meriter's birth center, she delivered a child with a gestational age of approximately twenty-three and 2/7th's weeks. The child weighed one-and-a-half pounds at birth and could not survive without resuscitation and long-term intensive care. Except for nursing care, Meriter did not resuscitate or treat the child, who survived for two-and-a-half hours.

¶ 3. Preston sued Meriter for: (1) medical negligence; (2) failing to obtain informed consent; (3) violating EMTALA, § 1395dd; and (4) neglect of a patient in violation of WIS. STAT. § 940.295(j)1 (2001-02).³ Meriter moved for summary judgment on all the claims.

¶ 4. For the medical negligence claim, Meriter asserted that Preston failed to identify any expert medical witness to proffer an opinion either as to the standard of care or as to causation. The trial court determined Meriter had established a prima facie defense and found that Preston had not offered any evidence to refute Meriter's contention.

¶ 5. As to the informed consent claim, Meriter asserted that doctors, and not hospitals, are required to obtain informed consent. The trial court determined that Meriter had established a prima facie defense to Preston's informed consent claim. It found that Preston did not refute this argument and deemed it admitted.

¶ 6. With regard to EMTALA, the trial court found that Preston's "complaint focuses on the hospital's failure to treat/resuscitate" the child. It determined that this allegation "appears to implicate EMTALA's stabilization requirement and not the screening requirement." It then concluded that the stabilization requirement in § 1395dd(b)(1)(A) applies only to instances where a hospital transfers a patient. The court held that Meriter was not liable under EMTALA because neither Preston nor her child were transferred from the hospital. It was guided by the reasoning of Harry v. Marchant, 291 F.3d 767 (11th Cir. 2002).

¶ 7. The trial court also concluded EMTALA did not apply to the child because the child was an inpatient. It adopted the reasoning in Bryant v. Adventist Health System/West, 289 F.3d 1162, 1169 (9th Cir. 2002), where the court found that EMTALA does not apply to inpatients unless the patient establishes that the hospital admitted the patient as a subterfuge, without any intention of treating the patient, and then discharged the patient without satisfying the stabilization requirement. It concluded that Preston had not refuted Meriter's contention that the child was an inpatient at the hospital, nor had Preston alleged any subterfuge by Meriter.

¶ 8. Preston appeals from the trial court's granting of summary judgment on these three claims. She does not, however, appeal the dismissal of her WIS. STAT. § 940.295 claim.

STANDARD OF REVIEW

¶ 9. We review de novo a trial court's decision on a motion for summary judgment, applying the same standard as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment is appropriate if there are no genuine issues of material fact and one party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2).

¶ 10. Our method for reviewing summary judgment is well developed:

If the pleadings state a claim and demonstrate the existence of factual issues, a court considers the moving party's proof to determine whether the moving party has made a prima facie case for summary judgment. If the defendant is the moving party the defendant must establish a defense that defeats the plaintiff's cause of action. If a moving party has made a prima facie defense, the opposing party must show, by affidavit or other proof, the existence of disputed material facts or undisputed material facts from which reasonable alternative inferences may be drawn that are sufficient to entitle the opposing party to a trial.

The inferences to be drawn from the underlying facts contained in the moving party's material should be viewed in the light most favorable to the party opposing the motion, and doubts as to the existence of a genuine issue of material fact are resolved against the moving party. The court takes evidentiary facts in the record as true if not contradicted by opposing proof.

Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶ 22-23, 241 Wis. 2d 804, 623 N.W.2d 751 (citation omitted).

DISCUSSION

Medical Negligence

¶ 11. Preston asserts two theories explaining why she did not need an expert medical witness. First, she contends that Meriter's failure to treat the child is the kind of matter "within the realm of the ordinary experience of mankind." Weiss v. United Fire & Cas. Co., 197 Wis. 2d 365, 379, 541 N.W.2d 753 (1995) (citation omitted). She argues that the standard of care for treating an infant with her child's gestational age is "within the ready comprehension of lay jurors." Second, she asserts that Meriter's expert witness supports her claim that the child would have had some significant chance of survival. ¶ 12. The trial court dismissed Preston's medical negligence claim because she failed to identify any expert medical witness regarding standard of care or causation. In its written decision, the trial court quoted the portion of Preston's brief that addressed her medical negligence claim:

Plaintiffs agree that if it were left up to the medical profession alone, many of these very premature infants would be left to die, on grounds of futility of treatment and the use of scarce medical resources to treat such very young and vulnerable patients. It is for that reason that plaintiffs will likely drop their malpractice claim and rely solely on the legal requirements to establish grounds for liability.

¶ 13. We will not address the merits of Preston's arguments either. The record shows that she failed to raise these issues before the trial court. We discern "no reason or excuse for issues, later felt to be material and important, not being presented" to the trial court. DOR v. Wis. Tel. Co., 72 Wis. 2d 259, 267, 240 N.W.2d 411 (1976).

Informed Consent

¶ 14. The trial court dismissed Preston's informed consent claim because she did not refute Meriter's prima facie defense that it had no independent duty to obtain her informed consent. On appeal, Preston contends that she has a viable argument that Meriter is liable under the doctrine of apparent authority. Meriter asserts that Preston waived this argument by not presenting it to the trial court in summary judgment motions. It concedes that Preston raised the issue of apparent authority at a motion to dismiss, but only in the context of medical negligence. ¶ 15. The record reveals that Preston failed to raise the issue of apparent authority with regard to informed consent in the trial court. We refrain from addressing issues raised for the first time on appeal. Id.

EMTALA Stabilization Requirement

¶ 16. Preston claims that EMTALA § 1395dd(b)(1)(A) required Meriter to stabilize her child's emergency medical condition, regardless of whether Meriter transferred the patient. Both parties contend that Preston's appeal presents an issue of first impression in Wisconsin.⁴

¶ 17. This appeal requires us to interpret EMTALA's necessary care requirements in § 1395dd(b)(1) and apply it to undisputed facts. Statutory interpretation and application presents a question of law which we review de novo. State ex rel. Frederick v. McCaughtry, 173 Wis. 2d 222, 225, 496 N.W.2d 177 (Ct. App. 1992). In construing a statute, our purpose is to discern the legislatures intent and give it effect. Id. We first examine the statute's language. Id. at 226. If the statute is unambiguous, it is our duty to give the language its ordinary meaning. Id.

¶ 18. There are several provisions of EMTALA that are relevant to this appeal. We begin with the stabilization requirement in § 1395dd(b)(1), which provides:

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

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