Urban v. King
| Decision Date | 29 September 1993 |
| Docket Number | Civ. A. No. 91-2317-GTV. |
| Parties | Derrick Lee URBAN, et al., Plaintiff, v. William T. KING, M.D., et al., Defendant. |
| Court | U.S. District Court — District of Kansas |
Michael S. Holland, Russell, KS, for plaintiffs.
Harry M. Bleeker, Watkins, Calcara, Rondeau & Friedman, P.A., Brian C. Wright, Turner & Boisseau, Chartered, Great Bend, KS, for William T. King, M.D.
Michael R. O'Neal, Gilliland & Hayes, P.A., Hutchinson, KS, for Jay S. Schukman, M.D.
Kenneth E. Peirce, Reynolds, Peirce, Forker, Suter & Rose, Hutchinson, KS, for Joseph Gateno, M.D.
Darrell D. Kellogg, Rand J. Trutt, Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, KS, for Carl W. Fieser, M.D., and Terrance J. Cavanaugh, M.D.
Steven C. Day, Woodard, Blaylock, Hernandez, Pilgreen & Roth, Wichita, KS, for Central Kansas Medical Center, Great Bend, Kan.
Marty T. Jackson, Speer, Austin, Holliday & Zimmerman, Olathe, KS, for The Fuller Brush Co.
This is a personal injury action to recover monetary damages from defendant Central Kansas Medical Center ("CKMC") for its alleged violations of the Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd, et seq.,1 and from three co-defendant physicians for alleged malpractice. The claims arise from the care and treatment given to plaintiff Rosalind Urban during her pregnancy. Plaintiffs claim that the statutory violations and negligent obstetrical care are the proximate cause of the severe brain damage and profound mental retardation sustained by minor plaintiff Derrick Urban.
This case is now before the court on the Motion for Summary Judgment filed by defendant CKMC (Doc. 232). For the reasons set forth in this memorandum, the motion is granted. Since the court's jurisdiction over the state law claims against the codefendant physicians was based solely on supplemental jurisdiction, 28 U.S.C. § 1367, those claims are dismissed.
A moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). One of the principal purposes of summary judgment is to isolate and dispose of factually unsupported claims or defenses, and the court should interpret the rule in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Thus, the court's proper inquiry is "whether there is a need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
The party moving for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be discharged by "showing," that is, pointing out to the district court, that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 325, 106 S.Ct. at 2554. Rule 56, however, imposes no requirement on the moving party to "support its motion with affidavits or other similar materials negating the opponent's claim." Id. at 323, 106 S.Ct. at 2553 (emphasis in original). Once the moving party has properly supported its motion for summary judgment, the burden of production shifts to the nonmoving party. "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Thus, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. The court reviews the evidence on summary judgment under the substantive law and based on the evidentiary burden that the parties will face at trial on the particular claim. Id. at 254, 106 S.Ct. at 2513.
In accordance with D.Kan.Rule 206(c), the parties have set forth a number of uncontroverted facts. Those facts which are relevant to this memorandum and order are as follows:
This case arises out of Rosalind Urban's twin pregnancy in 1989. Mrs. Urban was treated during her pregnancy by William T. King, M.D. Dr. King practices at Great Bend, Kansas, and limits his practice to the field of obstetrics and gynecology.
Pursuant to Dr. King's direction, Mrs. Urban had a number of non-stress tests performed at CKMC during her pregnancy. According to Mrs. Urban, the non-stress tests were done under a schedule provided to her by Dr. King. She personally made the appointments by calling the obstetrics department at CKMC. The tests were conducted at the hospital's obstetrics department where Mrs. Urban would report. The tests were performed on an out-patient basis, and the hospital's only role was to perform the tests.
The events relating to the plaintiffs' cause of action against defendant CKMC began with a non-stress test which was performed on November 24, 1989. The staff nurse who conducted that test interpreted the results as non-reactive as to both twins, meaning that there was no fetal movement. The nurse worked with Mrs. Urban for an hour trying to get a positive result from this test. The nurse then called defendant Dr. Schukman at his residence (Dr. King was out of town) and reported the non-reactive non-stress test. She also reported to Dr. Schukman that fetal heart tones were in the 150's for both twins and that Mrs. Urban's vital signs were normal. Dr. Schukman ordered that Mrs. Urban return the next morning to have the non-stress test repeated. Mrs. Urban then left the hospital at approximately 8:00 p.m.
The nurse has testified by deposition that she was not alarmed by her inability to confirm fetal movement because of the range of the heart beats for both twins. She saw no evidence of fetal distress. Mrs. Urban testified that the nurse said nothing which led her to believe that there was anything unusual or abnormal about the non-stress test. Dr. Schukman testified that nothing the nurse told him led him to believe that there was a problem and that it was not unusual to order a non-stress test to be repeated in such a situation.
Mrs. Urban returned to the hospital on the morning of November 25, 1989, for the repeat test. The nurse who conducted that test became concerned when she could not get a clear tracing of one of the twins. She concluded that something was wrong and called defendant Dr. Gateno, an obstetrician and gynecologist who works in the Great Bend area. Dr. Gateno arrived at the hospital five minutes later and ordered a bio-physical profile. The results showed an absence of fetal heart rate motion on one of the twins, no movement for either baby, only a small amount of amniotic fluid, and poor tone.
Dr. Gateno explained the situation to Mrs. Urban and gave her the choice of staying in CKMC and delivering by Caesarian section or going to Wesley Regional Medical Center in Wichita. He explained to her that a neonatologist would be available to care for the living twin in Wichita, and that the living twin would have a better chance in Wichita than at CKMC since CKMC is a limited hospital.
Mrs. Urban wanted to talk to her family before deciding whether to go to Wichita and finally decided to go to Wichita at 4:00 p.m. Dr. Gateno testified that he concurred in this decision because he believed it would be in the best interests of the infant. Mrs. Urban was taken to Wichita by ambulance, a two hour trip. She was not in labor prior to leaving CKMC and the ambulance trip was uneventful.
Mrs. Urban arrived at Wesley at 7:05 p.m. and the Cesarian section was performed at 9:41 p.m. The surviving twin, plaintiff Derrick Urban, suffers from serious and permanent central nervous system injury which has resulted in extensive physical and mental impairments.
Congress enacted EMTALA to "address and alleviate the problem of `patient dumping' practiced by hospitals throughout the country." Coleman v. McCurtain Memorial Medical Management, Inc., 771 F.Supp. 343, 345 (E.D.Okla.1991). "Patient dumping" is the practice of transferring patients to another facility or refusing to treat patients who are indigent or have no health insurance. EMTALA imposes two requirements on hospitals receiving Medicare funds. First, when a person presents himself to a hospital emergency room, the hospital must provide for an appropriate medical screening examination. Abercrombie v. Osteopathic Hosp. Founders Ass'n, 950 F.2d 676, 680 (10th Cir.1991). Second, "if the patient has an emergency medical condition which has not been stabilized, the patient, subject to certain exceptions ... may not be transferred out of the hospital." Id. (citing 42 U.S.C. § 1395dd(c)). In this case, the plaintiffs are not alleging any violation of the medical screening requirement. Only the second requirement is at issue.
The starting point of our analysis is the statutory language. The EMTALA sections with which we are here concerned are 42 U.S.C. § 1395dd(b) and (c). The relevant portions of these sections, as in effect on November 24 and 25, 1989, read as follows:
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