F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 12 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DARLA MICHELLE BLOOMER,
Plaintiff-Appellant,
v. No. 99-6074
(D.C. No. 98-CV-298-W)
NORMAN REGIONAL HOSPITAL, (W.D. Okla.)
Defendant-Appellee,
and
KEVIN W. HUBBARD, DO,
Individually; RONALD L. HEIM, DO,
Individually; ROBERT B. MCCLOY,
MD, Individually; DARREL L.
STOUT, MD, Individually; JERRY
MCCALL, MD, Individually;
WILLIAM G. WIGGS, MD,
Individually; ERIC WOLLMAN, MD,
Individually; H. JACKSON
WOODWARD, MD, Individually;
H. JACKSON WOODWARD, MD,
INC.; ROBERT D. MCCLOY, JR.,
MD, an Oklahoma Professional
Corporation,
Defendants.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
(continued...)
Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Plaintiff-appellant Darla Michelle Bloomer appeals the district court’s
dismissal, for lack of subject matter jurisdiction, of her claims against the Norman
Regional Hospital (Hospital) under the Emergency Medical Treatment and
Women in Active Labor Act (EMTALA), 42 U.S.C. § 1395dd, and the court’s
refusal to exercise supplemental jurisdiction over her state claims against the
remaining defendants. We hold that although plaintiff’s federal claims were not
legally immaterial, she failed to put forth facts supporting the exercise of federal
jurisdiction, requiring vacation of that portion of the district court’s order
dismissing her EMTALA claims and remanding for entry of summary judgment
in favor of the Hospital on the claims.
*
(...continued)
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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Between March 1, 1996 and March 15, 1996, plaintiff sought treatment on
six occasions from either the Norman Regional Hospital or its affiliated clinic.
Plaintiff complained of neck and back pain, blurred vision, numbness, difficulty
hearing, and high blood pressure, and informed medical personnel that her
symptoms were increasing in severity. On each occasion, plaintiff was examined
and discharged. On March 15, plaintiff was hospitalized for six days. She has
been diagnosed with pseudotumor cerebri, and is now totally blind.
Plaintiff brought this action against the Hospital, alleging it violated the
EMTALA, by:
[failing to] provide an appropriate medical screening and/or
examination; [failing to] provide stabilizing medical treatment;
[failing to] properly refer [her] for her medical condition; [failing to]
utilize the staff available to the [Hospital] to perform its duties under
the EMTALA, and . . . discharg[ing] (which constitutes a ‘transfer’
under the EMTALA) [her] while [she] was suffering under an
unstablized (sic) emergency medical condition.
Appellant’s App. at 13-14. Plaintiff brought supplemental medical malpractice
claims against the Hospital and the treating health care providers.
The Hospital moved to dismiss the complaint under Federal Rule of Civil
Procedure 12(b)(1), arguing the district court lacked jurisdiction over the
EMTALA claims. Attaching documentary evidence, the Hospital argued that
plaintiff failed to raise EMTALA claims because she did not show (1) that it
“dumped” her, by transferring her or refusing to treat her because she was
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indigent, or (2) that it knew of an unstabilized emergency medical condition when
it discharged her. See Appellant’s App. at 30-31. The Hospital argued that the
attached evidence showed extensive efforts to treat plaintiff on several occasions,
and that such efforts negated a dumping claim. Instead, the Hospital argued,
plaintiff’s claims sounded in malpractice, which was not within the ambit of the
federal statute.
Plaintiff’s response discussed whether the motion to dismiss could be
maintained under Rule 12(b)(1), objected to converting the motion to one under
Rule 12(b)(6), and discussed converting the motion to one for summary judgment
under Rule 56(c). See Appellant’s App. at 57-58. Plaintiff also attached
documentary evidence to her response. The district court dismissed the action for
lack of subject matter jurisdiction under Rule 12(b)(1), holding that plaintiff’s
EMTALA claims were merely negligence claims, and that therefore they were
immaterial and were raised only to invoke federal jurisdiction. We review the
district court’s determination of its subject matter jurisdiction de novo. See Holt
v. United States , 46 F.3d 1000, 1003 (10th Cir. 1995).
When a complaint is drawn to rely directly upon a federal statute, so that
the question of the court’s jurisdiction is intertwined with the merits of the case,
the general rule is that a federal court possesses jurisdiction and should decide the
case on its merits. See Bell v. Hood , 327 U.S. 678, 681-83 (1946); Davoll v.
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Webb , 194 F.3d 1116, 1129 (10th Cir. 1999); Holt , 46 F.3d at 1003. Under these
circumstances, the court should resolve its jurisdictional inquiry either “under
Federal Rule of Civil Procedure 12(b)(6) or, after proper conversion into a motion
for summary judgment, under Rule 56.” United States ex. rel Hafter v. Spectrum
Emergency Care, Inc. , 190 F.3d 1156, 1159 (10th Cir. 1999). There are two
exceptions to this rule: (1) when the alleged federal claim is immaterial and is
made solely to obtain jurisdiction, or (2) when the claim is insubstantial and
frivolous. See Bell , 327 U.S. at 682-83; Davoll , 194 F.3d at 1129.
Here, plaintiff drafted her complaint to seek recovery directly under the
provisions of a federal statute, the EMTALA. The district court refused to
convert defendant’s motion to dismiss to a merits-based motion, however, upon
finding that plaintiff’s EMTALA claims were immaterial. We conclude that her
EMTALA claims were not immaterial.
Under the EMTALA, a hospital must provide to all individuals arriving in
the emergency room for examination and treatment “an appropriate medical
screening examination . . . to determine whether or not an emergency medical
condition . . . exists.” 42 U.S.C. §1395dd(a). A hospital is further prohibited
from transferring (or discharging) a patient before his/her emergency medical
condition is stabilized. See id. , § 1395dd(c). Although we have held that this
statute was not enacted to provide a federal malpractice remedy, see Repp v.
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Anadarko Mun. Hosp. , 43 F.3d 519, 522 (10th Cir. 1994), the EMTALA was
drafted broadly, and the issues of whether plaintiff was screened appropriately
and whether she was released before her condition was stabilized necessarily
overlap with malpractice issues. This overlap does not make plaintiff’s EMTALA
claims inconsequential or immaterial. The district court should not have
dismissed this case, therefore, under Rule 12(b)(1), but should have converted
defendant’s motion to dismiss to a merits-based motion under Rule 12(b)(6) or
Rule 56(c).
Because defendants’ motion to dismiss did not simply attack the facial
validity of the complaint, but instead challenged the factual allegations supporting
the existence of subject matter jurisdiction, and because both parties submitted
affidavits and other evidentiary material, the motion should have been treated as
one for summary judgment under Rule 56(c). See Spectrum Emergency Care,
Inc. , 190 F.3d at 1159-60; United States ex. Rel. Ramseyer v. Century Healthcare
Corp. , 90 F.3d 1514, 1518 (10th Cir. 1996). Plaintiff’s response to the motion
demonstrates she was aware that it should be converted to a Rule 56 motion for
summary judgment. See Appellant’s App. at 58, 63-64. As plaintiff had notice of
the proper procedure and in fact attached documentary evidence to her response,
we exercise our plenary power to consider the Hospital’s motion as a motion for
summary judgment. See Building & Constr. Dep’t v. Rockwell Int’l Corp. , 7 F.3d
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1487, 1496 (10th Cir. 1993) (holding plaintiffs had notice of conversion when
they were first to point out need to convert motion, submitted evidentiary
materials, and did not object to defendant’s submission of materials).
Although a conversion of the Hospital’s motion yields a merits-based
decision, we have held plaintiff’s burden of proof is “essentially the same–[she]
must present affidavits or other evidence sufficient to establish the court’s subject
matter jurisdiction by a preponderance of the evidence.” Spectrum Emergency
Care, Inc. , 190 F.3d at 1160 n.5; see also Lujan v. Defenders of Wildlife ,
504 U.S. 555, 561 (1992) (noting burden of proving jurisdictional facts remains
on the party invoking federal jurisdiction throughout the litigation, and that at the
summary judgment stage, the plaintiff cannot “rest on . . . mere allegations, but
must set forth by affidavit or other evidence specific facts, . . . which for purposes
of the summary judgment motion will be taken to be true”) (quotations omitted);
Cache Valley Elec. Co. v. State of Utah Dep’t of Transp. , 149 F.3d 1119, 1124
(10th Cir. 1998) (holding “at summary judgment, it is a plaintiff’s burden to
adduce evidence sufficient to establish necessary jurisdictional facts” and, thus,
plaintiff “may not establish standing by merely hypothesizing”), cert. denied ,
526 U.S. 1038 (1999).
We have clearly defined the facts necessary to sustain an EMTALA claim
in our prior cases. In Repp , 43 F.3d at 522 & n.4, we held “a hospital violates
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section 1395dd(a) [only] when it does not follow its own standard [screening]
procedures,” and that “[a] court should ask only whether the hospital adhered to
its own procedures, not whether the procedures were adequate if followed.”
And in Urban ex rel. Urban v. King , 43 F.3d 523, 526 (10th Cir. 1994), we held
that to show a violation under 1395dd(c), a plaintiff must show that the Hospital
actually knew of the patient’s emergency medical condition. These then are
jurisdictional facts which plaintiff bore the burden of proving.
The operative inquiry is whether, viewing the tendered evidence and all
reasonable inferences in plaintiff’s favor, she has raised a genuine issue of fact
regarding these jurisdictional facts. The existence of a “scintilla of evidence”
in favor of the non-moving party is not enough to create a genuine issue of
material fact. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252 (1986).
Plaintiff has not raised a genuine issue as to whether the Hospital failed
to follow its own screening procedures. She did not submit a Hospital policy
or suggested what procedures were omitted. See, e.g. , Williams v. Birkeness ,
34 F.3d 695, 697 (8th Cir. 1994) (holding plaintiffs failed to raise a triable issue
whether patient was treated differently than others presenting the same symptoms,
which was an “essential element of a claim under § 1395dd(a),” and noting that
hospital did not bear the burden of showing a uniform screening procedure).
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The fact that plaintiff received different treatment each time she sought
medical attention does not, in itself, create an inference that the Hospital diverged
from its ordinary screening procedures. A hospital would not be expected to
duplicate particular screening procedures, such as a CT scan, when a patient is
seen several times over a short period of time. What is appropriate screening on
the patient’s first visit may well be different by the fourth visit. In addition, we
note that plaintiff presented different complaints on her visits, focusing
sometimes on her back and neck, sometimes on her chest, and sometimes on
her head and vision. See Appellant’s App. at 76 (3/1/96 - severe headache,
blurry vision, difficulty hearing, neck pain, blood pressure at 190/138), at 77
(3/7/96 - neck and back pain, swishing in ears, headache, difficulty sleeping,
blurry vision left eye), at 78, 80 (3/9/96 - severe headache, neck ache, mid and
upper back pain, complained her vision blurred “off and on when her blood
pressure goes up”, tenderness of spine and muscle tautness in left lumbar region),
at 82 (3/10/96 - dizziness, chest pain that increases upon inhalation), at 84
(3/11/96 - low back pain that is improving, decreased vision in left eye), at 85
(3/14/96 - back and neck pain that radiates to right knee, numbness in back and
left hand, blindness in left eye and decreased vision in right eye).
Further, plaintiff did not submit any evidence demonstrating that the
Hospital had notice she was suffering from an emergency medical condition. It is
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not enough to claim the Hospital “should have known” of her condition, plaintiff
was required to raise a triable issue regarding the Hospital’s actual knowledge of
her unstabilized condition. See Urban , 43 F.3d at 526.
Because plaintiff failed to raise a triable issue regarding the existence of
jurisdictional facts under the EMTALA, the district court should have granted
summary judgment in favor of the Hospital. The district court’s decision to
decline supplemental jurisdiction need not be disturbed, however, as the court’s
reasoning is sound regardless of whether the EMTALA claims are dismissed
procedurally under Rule 12(b)(1) or on their merits under Rule 56.
The judgment of the United States District Court for the Western District
of Oklahoma is VACATED, and the case is remanded for entry of summary
judgment in favor of the Hospital on plaintiff’s EMTALA claims.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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