St. Anthony Hosp. v. U.S. Dept. of H.H.S.

• Decision Date: 28 August 2002
• Docket Number: No. 00-9529.,00-9529.
• Citation: 309 F.3d 680
• Parties: ST. ANTHONY HOSPITAL, Petitioner, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

309 F.3d 680

ST. ANTHONY HOSPITAL, Petitioner, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent.

No. 00-9529.

United States Court of Appeals, Tenth Circuit.

August 28, 2002.

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A. Scott Johnson (Mary Hanan, Chris L. Fox, with him on the briefs), Johnson, Hanan, Heron & Trout, P.C., Oklahoma City, OK, for Petitioner.

Fran Pergericht Kuperman, Senior Counsel, (Diana L. Fogle, Senior Counsel, Edgar Bueno, Associate Counsel, with her on the brief), Special Attorneys for the U.S. Dept. of Justice, Department of Health and Human Services, Office of Counsel to the Inspector General, Washington, D.C., for Respondent.

Before LUCERO, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and STAGG, District Judge.^*

LUCERO, Circuit Judge.

In June 2000, the Departmental Appeals Board ("DAB") of the Department of Health and Human Services upheld the imposition of a civil monetary penalty against St. Anthony Hospital for violation of the Emergency Medical Treatment and Active Labor Act's ("EMTALA" or "Act") "reverse-dumping" provisions. ("Reverse-dumping" occurs when a hospital emergency room refuses to accept an appropriate transfer of a patient requiring its specialized capabilities. By contrast, "patient-dumping" is the emergency-room practice of refusing to accept or treat individuals who do not have medical insurance.) St. Anthony has filed a petition to this court requesting that the agency's determination be set aside on several bases.

We are called upon to determine, among numerous other issues: should the agency have sought an expert opinion from the appropriate peer review organization ("PRO") on issues relevant to St. Anthony's liability; and applying Oklahoma agency law, did St. Anthony refuse an appropriate patient transfer? Exercising jurisdiction under 42 U.S.C. § 1320a-7a(e), we deny St. Anthony's petition.

I

We begin by reviewing the relevant factual and procedural background. The following facts have been taken from the Administrative Law Judge's ("ALJ") October 5, 1999 decision and other portions of the administrative record.

A

R.M.,¹ a sixty-five-year-old male, was involved in an automobile accident on a highway outside of Oklahoma City on April 8, 1995. At 4:50 p.m. that afternoon, he was taken to the emergency room at Shawnee Regional Hospital, a small hospital about thirty-five miles outside of Oklahoma City that lacked the ability to perform many complex medical procedures. Almost two hours later, at 6:44 p.m., Dr. Kent Thomas diagnosed R.M. with a neurological injury and arranged for his transfer to University Hospital in Oklahoma City.

At 6:50 p.m., as R.M. was boarded onto an ambulance, Dr. Carl Spengler, a third-year resident and physician at Shawnee, arrived at the emergency room as Dr. Thomas was ending his shift. In a brief conversation, Dr. Thomas told Dr. Spengler that R.M. had suffered a broken back and that his transfer to University Hospital had been arranged. En route to University Hospital, R.M.'s condition deteriorated,² and the ambulance was forced to return to Shawnee. In hindsight, R.M. had actually suffered from "a life-threatening traumatic injury to his abdominal aorta, the principal vessel carrying blood to the lower part of his body, which shut off the flow of blood to his lower extremities." (Admin. R. at 7.)

Dr. Spengler then quickly examined R.M. He immediately became concerned about R.M.'s condition. R.M. was extremely cyanotic (his skin had turned blue) from his umbilicus (navel) down throughout his lower extremities. R.M. had no sensation to touch from his umbilicus down. R.M.'s skin below the umbilicus was cold, whereas it had normal appearance and temperature above the umbilicus. R.M. was complaining of back pain. He had no pulse in his femoral arteries in his legs or feet.

Dr. Spengler had no doubt from these clinical signs and symptoms that R.M. had suffered an injury to his abdominal aorta. Dr. Spengler knew that R.M. had experienced a life-threatening injury and that the patient needed surgery. Dr. Spengler also knew that Shawnee Regional Hospital was a small country hospital that lacked the capacity to deal with the type of injury that R.M. had sustained.

(Id. at 8 (citations omitted).) Dr. Spengler determined that R.M. should be transferred because R.M. needed surgery that Shawnee could not provide.³

Given the circumstances, Dr. Spengler concluded that he could not then permit the ambulance to proceed to University Hospital. Dr. Spengler began treatment to stabilize R.M.'s condition and contacted Medi-Flight, an air-ambulance service, to transport R.M. to University Hospital, as Medi-Flight would be a faster mode of transportation, and, in Dr. Spengler's opinion, "the personnel on the helicopter are much more trained." (Admin. R.App. F at 352.) Aware that Dr. Thomas had painted for University Hospital a very different clinical picture,

Dr. Spengler called University Hospital and spoke with that hospital's attending emergency room physician. Dr. Spengler advised that physician that R.M. had suffered damage to his aorta and that the situation was urgent. Shortly thereafter, Dr. Spengler received a call back from University Hospital. Dr. Spengler was advised that University Hospital already had two emergency surgeries to perform and that it would not be able to receive R.M.

(Admin. R. at 9 (citation omitted).) Upon being informed that University Hospital lacked capacity to give immediate care, Dr. Spengler had a Shawnee staff member conduct a search for another hospital. The search included a call to St. Anthony, "a large modern hospital in Oklahoma City with state of the art surgical facilities." (Id. at 4.)

At this point in the chronology, the facts become disputed. We proceed utilizing the ALJ's findings. A short time later that evening, Dr. Spengler spoke with St. Anthony emergency-room physician Dr. Billy Buffington and made a request for a transfer.⁴ After learning of R.M.'s condition, Dr. Buffington deferred to the judgment of St. Anthony's on-call thoracic and vascular surgeon, Dr. Scott Lucas.⁵ The ALJ found, "Dr. Lucas and Dr. Spengler spoke by telephone after Dr. Buffington spoke with Dr. Lucas. In that conversation and in a subsequent telephone conversation with Dr. Spengler, Dr. Lucas declined Dr. Spengler's request that Dr. Lucas provide care to R.M." (Id. at 15.) "Dr. Lucas told Dr. Spengler that he was not interested in taking R.M.'s case. He told Dr. Spengler that the case was University Hospital's problem." (Id. at 16 (citation omitted).) "Eventually, Dr. Spengler arranged the transfer of R.M. via Medi-Flight to Presbyterian Hospital in Oklahoma City." (Id. at 9.)

B

As required by 42 U.S.C. § 1395dd(d)(3), allegations that Shawnee Regional Hospital violated the federal patient-dumping statute, EMTALA, were referred to the appropriate PRO, the Oklahoma Foundation for Medical Quality, Inc. The PRO afforded Shawnee Regional an opportunity for participation. Shawnee filed a written response and submitted additional information that was "taken into consideration in determining the outcome of the issues" before the PRO. (Id. at 265.) Shawnee made the most of its opportunity to participate in the PRO review, as is illustrated in the following excerpt from the PRO's January 23, 1997 findings:

The question of whether the transfer was otherwise appropriate would appear to depend on whether the vascular surgery that [R.M.] required for further stabilization was within the capacity of Shawnee Regional Hospital to provide. According to the on call surgery list, [Shawnee physician] Dr. Howard was credentialed to perform vascular surgery and the repair of an "occluded" aorta.... Based on this Shawnee Regional Hospital was equipped with the staff, services, and equipment to provide the services necessary to stabilize [R.M.] by surgery. However, according to subsequent documentation received from Shawnee Regional legal representatives, Dr. Howard had not performed abdominal vascular surgery in at least one year, therefore he did not feel capable of performing such surgery. As a practical matter, therefore, according to the submitted documentation and affidavits from Shawnee Regional Hospital, they did not have the capacity to provide further stabilizing treatment in the form of vascular surgery.

(Id. at 268.)

St. Anthony was given neither reasonable notice of the PRO review nor an opportunity to participate in the proceedings. In January 1997, the PRO found that R.M. was critically injured and suffered from an emergency medical condition. It further found that although R.M.'s condition was likely to deteriorate during transfer, this risk was outweighed by the benefits of the transfer.

In May 1998, the Office of the Inspector General ("OIG") notified St. Anthony that it sought to impose a $50,000 civil monetary penalty against it based "on a determination that St. Anthony Hospital failed to accept the appropriate transfer of [R.M.] on Saturday, April 8, 1995." (Admin. R. at 162.) St. Anthony was advised that if it wished to contest the OIG's determination, it had to file a written request for a hearing before an ALJ. Prior to the ALJ hearing, St. Anthony moved to dismiss the agency's action on the basis that it was premature. Citing 42 U.S.C. § 1395dd(d)(3) and 42 C.F.R. § 489.24(g), St. Anthony claimed entitlement to "review by an appropriate peer review organization regarding this matter." (Id. at 132.) The ALJ denied this motion, concluding that St. Anthony's argument was "unsupported by the Act and regulations" (id. at 470):

The facts as asserted by the [OIG] show that the Secretary and the [OIG] did exactly what was required by [§ 1395dd(d)(3)]. The case of R.M. was referred to the Oklahoma Foundation for Medical Quality, Inc., which is the Oklahoma PRO. This referral was made in the...