Correa v. Hospital San Francisco

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-1167

GLORIA IVETTE CORREA, a/k/a
GLORIA IVETTE CORREA GONZALEZ, ET AL.,

Plaintiffs, Appellees,

v.

HOSPITAL SAN FRANCISCO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Boudin, Circuit Judge.

Igor J. Dominguez on brief for appellant.

Kevin G. Little and Law Offices of David Efron on brief for

appellees.

October 31, 1995

SELYA, Circuit Judge. This appeal requires us to
SELYA, Circuit Judge.

interpret, for the first time, the Emergency Medical Treatment

and Active Labor Act (EMTALA), 42 U.S.C. 1395dd (1988 & Supp. V

1993).1 After scrutinizing the record and dovetailing the facts

with the statutory scheme, we affirm a $700,000 jury verdict in

favor of the heirs and survivors of Carmen Gloria Gonzalez

Figueroa (Ms. Gonzalez) against defendant-appellant Hospital San

Francisco (HSF or the Hospital).

I. THE FACTS
I. THE FACTS

We are guided through the thicket of conflicting

testimony and the chasmal gaps in the direct evidence by the rule

that, when the losing party protests the sufficiency of the

evidence, the court of appeals must take both the facts and the

reasonable inferences therefrom in the light most hospitable to

the jury's verdict. See Sanchez v. Puerto Rico Oil Co., 37 F.3d

712, 716 (1st Cir. 1994); Wagenmann v. Adams, 829 F.2d 196, 200

(1st Cir. 1987).

According to her son, Angel Correa, Ms. Gonzalez, a

sixty-five-year-old widow, awoke on the morning of September 6,

1991 "feeling real bad," and experiencing "chills, cold sweat,

dizziness, [and] chest pains." She requested that Angel take her

to the emergency room at HSF (where she had been treated

previously). She arrived there no later than 1:00 p.m.

1In Wilson v. Atlanticare Med. Ctr., 868 F.2d 34 (1st Cir.

1989), the plaintiff asked us to consider whether a state statute
prescribing a medical malpractice claims procedure applied to
suits under EMTALA. See id. at 35. We refused, however, because

the plaintiff had not preserved the issue. See id. at 35-36.

2

The evidence is conflicted as to whom she saw and what

that person was told about her condition. Angel testified that

he implored the receptionist to have someone "take care of my

mother, because she feels sick and has chest pains." The

Hospital disagrees, maintaining that its personnel were told only

that Ms. Gonzalez felt dizzy and nauseated. In any event, a

Hospital employee assigned the patient a number (forty-seven),

told her to bide her time, and checked her medical insurance

card.2 After waiting approximately one hour, Angel called his

sister, Esther Correa, and asked her to relieve him. Esther

arrived some fifteen minutes later and Angel left the premises.

At that very moment (roughly 2:15 p.m.), he heard an attendant

calling patient number twenty-four for treatment.

Now accompanied by her daughter, Ms. Gonzalez

maintained her unproductive vigil for an additional forty-five to

seventy-five minutes. The Hospital staff continued blithely to

ignore her. Weary of waiting, the two women drove to the office

of Dr. Acacia Rojas Davis (Dr. Rojas), the director of Hospmed,

arriving there between 3:00 and 3:30 p.m. According to Dr.

Rojas, a nurse called from HSF to advise her that the patient

would be coming to Hospmed for treatment. Dr. Rojas said that

this conversation probably occurred earlier that day (perhaps

around 1:00 p.m.), a datum suggesting that HSF tried to shunt Ms.

2Ms. Gonzalez's health insurance plan required her to seek
routine treatment at Hospmed (a local clinic) during its business
hours, but allowed her to see any appropriate health-care
provider in case of an emergency.

3

Gonzalez to Hospmed as soon as it scrutinized her insurance card.

Ms. Gonzalez informed Dr. Rojas that she was nauseated

and had taken a double dose of her high blood pressure

medication. Her blood pressure was very low (90/60), and, when

she began vomiting, the physician immediately started intravenous

infusions of fluids. She also dispensed medicine to control the

emesis. Despite these ministrations, Ms. Gonzalez's condition

steadily deteriorated. Dr. Rojas had to resuscitate her soon

after her arrival. The doctor then attempted to transfer her to

the Hato Rey Community Hospital, but could not commandeer an

ambulance. As Dr. Rojas began preparations to transport Ms.

Gonzalez by van, the patient expired. Her death, which occurred

at around 4:30 p.m., was attributed to hypovolemic shock.

II. THE PROCEEDINGS BELOW
II. THE PROCEEDINGS BELOW

The plaintiffs Ms. Gonzalez's three adult children

and four of her grandchildren (the progeny of her late son, Felix

Correa, who had predeceased her) brought suit against the

Hospital in the United States District Court for the District of

Puerto Rico.3 They alleged two violations of EMTALA

inappropriate screening and improper transfer and a pendent

claim of medical malpractice under local law. Following a trial,

the plaintiffs' case went to the jury on the two theories of

3Although their complaint is not a model of clarity, the
plaintiffs apparently sued in two capacities. As Ms. Gonzalez's
heirs, they asserted a representative-capacity claim for her
pain, suffering, and related damages. As individuals, they
simultaneously asserted claims for their own pain, suffering,
mental anguish, and kindred losses.

4

EMTALA liability.4 The jury returned a series of special written

findings, Fed. R. Civ. P. 49(a), assessed $200,000 in damages on

the decedent's account (payable to the heirs), and assessed

$500,000 in damages for the pain, suffering, and mental anguish

experienced by the survivors $100,000 apiece for the three

children (Angel, Esther, and Gloria), and $50,000 apiece for the

four grandchildren (Glendalis, Glorimar, Angelis, and Sarai).

The district court denied the Hospital's post-trial motions for

judgment as a matter of law, a new trial, and remission of

damages. This appeal ensued.

III. THE STATUTORY SCHEME
III. THE STATUTORY SCHEME

We delineate EMTALA's requirements in order to give

definition to the statutory cause of action and place some of its

nuances into perspective.

As health-care costs spiralled upward and third-party

payments assumed increased importance, Congress became concerned

"about the increasing number of reports that hospital emergency

rooms are refusing to accept or treat patients with emergency

conditions if the patient does not have medical insurance." H.R.

Rep. No. 241(I), 99th Cong., 1st Sess. 27 (1986), reprinted in

1986 U.S.C.C.A.N. 42, 605. Congress enacted EMTALA to allay this

concern. Needing a carrot to make health-care providers more

receptive to the stick, Congress simultaneously amended the

Social Security Act, conditioning hospitals' continued

4The district court dismissed the malpractice claim. That
ruling is not before us on appeal.

5

participation in the federal Medicare program a lucrative

source of institutional revenue on acceptance of the duties

imposed by the new law. See 42 U.S.C. 1395dd(a-b), (e)(2); see

also Abercrombie v. Osteopathic Hosp. Founders Ass'n, 950 F.2d

676, 680 (10th Cir. 1991); Brooker v. Desert Hosp. Corp., 947

F.2d 412, 414 (9th Cir. 1991).

We have set out the portions of the statute that are

most germane to this appeal in an appendix. For purposes of

patients such as Ms. Gonzalez, EMTALA has two linchpin

provisions. First, it requires that a participating hospital

afford an appropriate medical screening to all persons who come

to its emergency room seeking medical assistance. See 42 U.S.C.

1395dd(a). Second, it requires that, if an emergency medical

condition exists, the participating hospital must render the

services that are necessary to stabilize the patient's condition,

see id. 1395dd(b)(1)(A), unless transferring the patient to

another facility is medically indicated and can be accomplished

with relative safety, see id. 1395dd(b)(1)(B), (c)(1). To add

bite to its provisions, EMTALA establishes monetary penalties for

noncompliance, see id. 1395dd(d)(1), and authorizes private

rights of action against those who transgress its mandates, see

id. 1395dd(d)(2).

To establish an EMTALA violation, a plaintiff must show

that (1) the hospital is a participating hospital, covered by

EMTALA, that operates an emergency department (or an equivalent

treatment facility); (2) the patient arrived at the facility

6

seeking treatment; and (3) the hospital either (a) did not afford

the patient an appropriate screening in order to determine if she

had an emergency medical condition, or (b) bade farewell to the

patient (whether by turning her away, discharging her, or

improvidently transferring her) without first stabilizing the

emergency medical condition. See Miller v. Medical Ctr. of S.W.

La., 22 F.3d 626, 628 (5th Cir. 1994); Stevison v. Enid Health

Sys., Inc., 920 F.2d 710, 712 (10th Cir. 1990).

HSF attempts to read into section 1395dd(a) an

additional requirement: that the patient show that she in fact

suffered from an emergency medical condition when she arrived at

the emergency room. But EMTALA imposes no such requirement. The

statute by its terms directs a participating hospital to provide

an appropriate screening to all who come to its emergency

department. Thus, to prove a violation of EMTALA's screening

provisions, a plaintiff need not prove that she actually suffered

from an emergency medical condition when she first came through

the portals of the defendant's facility; the failure

appropriately to screen, by itself, is sufficient to ground

liability as long as the other elements of the cause of action

are met.5

5To be sure, some courts have suggested in dictum that a
plaintiff must show, as an ingredient of an inappropriate
screening claim, that she suffered from an emergency medical
condition when she arrived at the hospital. See, e.g., Miller,

22 F.3d at 630 n.8; Ruiz v. Kepler, 832 F. Supp. 1444, 1447

(D.N.M. 1993); Huckaby v. East Ala. Med. Ctr., 830 F. Supp. 1399,

1402 (M.D. Ala. 1993). This suggestion finds no purchase in the
statute's text, and we reject it. We note, however, that while
this distinction may have implications for civil penalties, which

7

IV. ANALYSIS
IV. ANALYSIS

HSF assigns error in no fewer than eight iterations.

It debunks the sufficiency of the evidence in five respects. It

then hypothesizes that, even if the evidence on these points can

withstand an instructed verdict, it is so anemic that the

district court should have repudiated the jury's findings on

liability and ordered a new trial. The climax of the Hospital's

asseverational array denigrates the award of damages in two

respects. After careful perscrutation of both the record and the

rich variety of challenges marshalled by HSF, we affirm.

A. Sufficiency of the Evidence.
A. Sufficiency of the Evidence.

The Hospital's multi-pronged attack calls into play

varying standards of appellate review. The first five claims of

error all involve the sufficiency of the evidence, and, hence,

are reviewed under a familiar set of rules.

The district court's denial of a motion for judgment as

a matter of law poses a question of law and, therefore, this

court's review of such a ruling is plenary. See Gibson v. City

of Cranston, 37 F.3d 731, 735 (1st Cir. 1994). In addressing

such issues on appeal, we must approach the evidence from a coign

are imposable irrespective of resulting harm, see 42 U.S.C.

1395dd(d)(1)(A), the statutory damage remedy requires a showing
of "personal harm as a direct result of a participating
hospital's violation of [EMTALA]," id. 1395dd(d)(2)(A). It is

difficult to imagine a case in which a patient who does not
present an emergency medical condition will meet the statute's
causation requirement or fall within the category of those whom
it intends to protect. In all events, we can reserve such
questions for another day, because the plaintiffs fairly allege
that Ms. Gonzalez did present an emergency medical condition, the
jury so found, and the evidence to that effect was ample.

8

of vantage identical to that employed by the district court in

the first instance. See Rolon-Alvarado v. Municipality of San

Juan, 1 F.3d 74, 77 (1st Cir. 1993). This dictates that we take

the record in the light most flattering to the nonmoving party,

without probing the veracity of the witnesses, resolving

conflicts in the testimony, or assaying the weight of the

evidence. See Gibson, 37 F.3d at 735; Wagenmann, 829 F.2d at

200. We "may reverse the denial of such a motion only if

reasonable persons could not have reached the conclusion that the

jury embraced." Sanchez, 37 F.3d at 716.

1. EMTALA Coverage. The Hospital starts its series of
1. EMTALA Coverage.

sufficiency sorties by solemnly stating that the survivors

stumbled in failing to show that it is subject to EMTALA's

suzerainty. We need not tarry. HSF tacitly concedes that, in

general, federal courts have jurisdiction over EMTALA claims, see

Thornton v. Southwest Detroit Hosp., 895 F.2d 1131, 1133 (6th

Cir. 1990), but argues that the plaintiffs did not prove a

requisite predicate fact: that HSF had accepted the federal

government's carrot and agreed to come under EMTALA.6 This

6In its brief, the Hospital treats this issue as implicating
the court's subject matter jurisdiction. The Hospital, of
course, could have raised the question in that form by a pretrial
motion, see Fed. R. Civ. P. 12(b)(1), but refrained. Since the

defendant did not so move, and since the disputed fact is one
that has the capacity not only to oust the federal court of
jurisdiction but also to defeat the claim on the merits (because
the same fact that is needed to support jurisdiction must also be
demonstrated to the factfinder in order for the plaintiff to
prevail), an appellate court should evaluate the jury's factual
finding under a sufficiency-of-the-evidence test. Cf. United

States v. Victoria-Peguero, 920 F.2d 77, 87 (1st Cir. 1990)

(undertaking sufficiency-of-the-evidence review following a jury

9

argument has the shrill ring of desperation.

The plaintiffs introduced into evidence, without

objection, HSF's policy statement outlining for its employees and

associates how the Hospital intended to ensure compliance with

EMTALA in its emergency room. The Hospital solidified this

proffer when, during the defense case, its health services

administrator testified that he had dutifully instructed his

staff regarding the fine points of EMTALA compliance. Evidence

admitted without limitation can be used by the jury on any issue

in the case. See, e.g., United States v. Castro-Lara, 970 F.2d

976, 981 (1st Cir. 1992), cert. denied, 113 S. Ct. 2935 (1993).

Here, the policy statement and the executive's testimony, without

more, formed a sturdy basis on which the jury could build an

eminently reasonable inference that the Hospital considered

itself to be and was covered by EMTALA.

HSF strives to topple this edifice, contending that the

policy statement constituted inadmissible hearsay and that the

plaintiffs did not lay a proper foundation for the document's

introduction. But in the absence of plain error and we discern

none here these objections, voiced for the first time on

appeal, are deemed to have been waived. See Suarez-Matos v.

Ashford Presbyterian Community Hosp., Inc., 4 F.3d 47, 50 (1st

Cir. 1993); Freeman v. Package Mach. Co., 865 F.2d 1331, 1336

determination that a ship was within territorial waters, where
such a fact was both a predicate for criminal jurisdiction and an
element of the offense charged), cert. denied, 500 U.S. 932

(1991).

10

(1st Cir. 1988); see also Fed. R. Evid. 103. Hence, the jury had

a rational basis on which to conclude that HSF is among the

ninety-nine percent of American hospitals covered by EMTALA.

2. Failure to Provide Appropriate Screening. Three of
2. Failure to Provide Appropriate Screening.

the Hospital's remaining four sufficiency-of-the-evidence claims

are inextricably intertwined. These three claims are designed to

illustrate the purported lack of any foundation for a finding

that HSF failed to provide Ms. Gonzalez with an appropriate

screening upon her appearance at the emergency room. The final

sufficiency claim is closely related to the first three

initiatives. In it, HSF posits that, as long as a hospital is

not motivated by crass economic considerations, any failure

appropriately to screen does not run afoul of EMTALA. These

importunings lack merit.7

a.
a.

We begin this analytic segment by laying a straw man to

rest. The Hospital asserts that it had no obligation to screen

because Ms. Gonzalez did not have an emergency medical condition

when she reported to its facility. This theory of defense is

doubly flawed. For one thing, EMTALA requires participating

hospitals to provide appropriate screening to all who enter the

hospitals' emergency departments, whether or not they are in the

throes of a medical emergency when they arrive. See supra note 5

7Because we uphold the jury's finding that HSF violated
EMTALA when it failed to afford Ms. Gonzalez an appropriate
screening, we need not comment upon the jury's finding that HSF
also violated EMTALA by improperly transferring Ms. Gonzalez
before her condition had stabilized.

11

and accompanying text. For another thing, the record does not

compel a conclusion that the decedent's emergency condition

developed only after she consulted Dr. Rojas.

Angel Correa testified that he told HSF's receptionist

that his mother was experiencing chest pains, and HSF concedes

that a patient of Ms. Gonzalez's age who suffered from chest

pains would be regarded as having an emergency medical condition.

Yet the Hospital asks us to ignore this evidence in deference to

Dr. Rojas's testimony that Ms. Gonzalez did not develop chest

pains until some time after she arrived at Hospmed. There is no

principled way in which we can accommodate HSF's request.

Credibility choices are generally for the jury, not for the court

of appeals. See Cook v. Rhode Island Dep't of Mental Health,

Retardation, and Hosps., 10 F.3d 17, 21 (1st Cir. 1993). What is

more, Dr. Rojas's testimony does not rule out a finding that Ms.

Gonzalez exhibited an emergency medical condition when she

arrived at HSF. The chest pains might well have spurted and

later subsided, or, even if Ms. Gonzalez only complained of

nausea and dizziness, that symptomatology (as Dr. Rojas

explained) might well herald the onset of an emergency medical

condition in the case of a hypertensive diabetic (such as Ms.

Gonzalez).

b.
b.

We next assess the Hospital's insistence that it gave

Ms. Gonzalez the same (suitable) screening provided to all

patients. EMTALA requires an appropriate medical screening, but

12

does not explain what constitutes one. The adjectival phrase is

not self-defining. See Cleland v. Bronson Health Care Group,

Inc., 917 F.2d 266, 271 (6th Cir. 1990) ("`Appropriate' is one of

the most wonderful weasel words in the dictionary, and a great

aid to the resolution of disputed issues in the drafting of

legislation. Who, after all, can be found to stand up for

`inappropriate' treatment or actions of any sort?"). In the last

analysis, appropriateness, like nature, is "a mutable cloud which

is always and never the same." Ralph Waldo Emerson, Essays:

First Series (1841).

Be that as it may, the courts have achieved a consensus

on a method of assessing the appropriateness of a medical

examination in the EMTALA context. A hospital fulfills its

statutory duty to screen patients in its emergency room if it

provides for a screening examination reasonably calculated to

identify critical medical conditions that may be afflicting

symptomatic patients and provides that level of screening

uniformly to all those who present substantially similar

complaints. See Baber v. Hospital Corp. of Am., 977 F.2d 872,

879 (4th Cir. 1992); Gatewood v. Washington Healthcare Corp., 933

F.2d 1037, 1041 (D.C. Cir. 1991). The essence of this

requirement is that there be some screening procedure, and that

it be administered even-handedly.

We add a caveat: EMTALA does not create a cause of

action for medical malpractice. See Gatewood, 933 F.2d at 1041.

Therefore, a refusal to follow regular screening procedures in a

13

particular instance contravenes the statute, see Baber, 977 F.2d

at 879, but faulty screening, in a particular case, as opposed to

disparate screening or refusing to screen at all, does not

contravene the statute. See Brooks v. Maryland Gen. Hosp., 996

F.2d 708, 711 (4th Cir. 1993). In this case, HSF's delay in

attending to the patient was so egregious and lacking in

justification as to amount to an effective denial of a screening

examination. Thus, we need not decide whether mere negligence in

failing to expedite screening would itself violate the federal

statute.

To illustrate our point, it should be recalled that HSF

prescribed internal procedures which set the parameters for an

appropriate screening. HSF's rules, as explicated in its policy

statement, required its emergency room personnel, inter alia,

promptly to take the vital signs of every patient who visited the

facility, to make a written record of all such visits, to treat

patients suffering from chest pains as critical cases, and to

refer all critical cases to an in-house physician immediately.

From the evidence adduced at trial, especially Angel Correa's

recollections and the Hospital's utter inability to produce any

records anent Ms. Gonzalez's visit, the jury reasonably could

have inferred that the Hospital did not measure up to the

parameters it had established, and that the decedent was denied

the screening (monitoring of vital signs, compilation of a

written chart, immediate referral to an in-house physician) that

HSF customarily afforded to persons complaining of chest pains.

14

That ends the matter. Bearing in mind that, under

EMTALA 1395dd(a), the same screening examination must be made

available to all similarly situated patients, see Brooks, 996

F.2d at 710-11; Baber, 977 F.2d at 881, the jury's finding that

HSF denied Ms. Gonzalez an appropriate screening examination is

unimpugnable.

c.
c.

In an allied vein, the Hospital contends that it

neither denied Ms. Gonzalez an initial screening nor refused her

essential treatment. Its point is that it gave the patient a

number, and would have ministered to her had she waited. This

contention is spurious.

First, according to Dr. Rojas, HSF referred Ms.

Gonzalez to Hospmed. If the jury believed the physician's

testimony and we note, as an aside, that HSF called Dr. Rojas

as its witness it could well have found that HSF never intended

to treat the decedent, or, at the least, was itself responsible

for truncating her wait. Second, we think that regardless of

motive, a complete failure to attend a patient who presents a

condition that practically everyone knows may indicate an

immediate and acute threat to life can constitute a denial of an

appropriate medical screening examination under section

1395dd(a). Much depends upon circumstances; we recognize that an

emergency room cannot serve everyone simultaneously. But we

agree with the court below that the jury could rationally

conclude, absent any explanation or mitigating circumstances,

15

that the Hospital's inaction here amounted to a deliberate denial

of screening. EMTALA should be read to proscribe both actual and

constructive dumping of patients.

d.
d.

HSF maintains that depriving a patient of an

appropriate screening, in and of itself, will not support an

EMTALA claim. It suggests that a hospital can be liable for

transgressing the statute only if economic concerns, such as the

suspicion that the patient will be unable adequately to pay her

way, drive the hospital's actions. Since Ms. Gonzalez had

insurance that permitted her hospital visit if an emergency

existed, its thesis continues, its handling of her case could not

have been motivated by concerns about her ability to pay.8 As

phrased, this contention raises a question of law, engendering de

novo review. See Foster Miller, Inc. v. Babcock & Wilcox Can.,

46 F.3d 138, 147 (1st Cir. 1995).

Every court of appeals that has considered this issue

has concluded that a desire to shirk the burden of uncompensated

care is not a necessary element of a cause of action under

EMTALA. See, e.g., Power v. Arlington Hosp. Ass'n, 42 F.3d 851,

857 (4th Cir. 1994); Collins v. DePaul Hosp., 963 F.2d 303, 308

8In all events, this argument is an oversimplification.
Especially in the health-care field, all insurance plans are not
created equal. Given the bewildering array of coverage
conditions, deductibles, reimbursement rates, and the like,
sophisticated but esurient providers have ample provocation to
discriminate not only between insured and uninsured patients but
also among patients who are insured under different plans.

16

(10th Cir. 1992); Gatewood, 933 F.2d at 1040.9 We think that

these cases are correctly decided, and that EMTALA does not

impose a motive requirement. The decision on which the Hospital

relies, Nichols v. Estabrook, 741 F. Supp. 325 (D.N.H. 1989), did

not involve failure to screen, but merely a misdiagnosis. We

hold, therefore, that EMTALA, by its terms, covers all patients

who come to a hospital's emergency department, and requires that

they be appropriately screened, regardless of insurance status or

ability to pay. See 42 U.S.C. 1395dd(a).

B. New Trial.
B. New Trial.

We turn now to the Hospital's complaint that the lower

court erred in declining to honor its motion for an unconditional

new trial. Our reexamination of this ruling is extremely

circumscribed. Principally because the trial judge saw and heard

the witnesses in the raw, his refusal to uproot a jury verdict

may only be reversed for abuse of discretion. See Quinones-

Pacheco v. American Airlines, Inc., 979 F.2d 1, 3 (1st Cir.

1992); Veranda Beach Club Ltd. Partnership v. Western Sur. Co.,

936 F.2d 1364, 1384 (1st Cir. 1991). This means, in effect, that

an appellate court may set aside such a ruling only if it

9In Cleland, the Sixth Circuit held, as have other courts,

that a fear of nonpayment is not essential to triggering an
EMTALA claim. See 917 F.2d at 272. Cleland is different,

however, in that the court required there to be some motive

whether or not economic for the disparate treatment. See id.

Other courts have declined to follow the Sixth Circuit's lead in
this respect, see, e.g., Gatewood, 933 F.2d at 1041 n.3, and we

agree that the range of improper motives available under the
Cleland standard "is so broad as to be no limit at all, and as a

practical matter amounts to not having a motive requirement."
Power, 42 F.3d at 857.

17

determines that "the verdict is against the demonstrable weight

of the credible evidence or results in a blatant miscarriage of

justice." Sanchez, 37 F.3d at 717.

Refined to bare essence, HSF's claim is that, even if

the plaintiffs introduced enough proof to withstand judgment as a

matter of law, the verdict defied the weight of the trustworthy

evidence. In support, the Hospital reiterates the points

previously discussed, terming the evidence asthenic as to HSF's

status under EMTALA and as to its purported violations of the

law.

We will not repastinate the ground that we ploughed

earlier in this opinion. The evidence regarding the relationship

of EMTALA to HSF, see supra Part IV(A)(1), strikes us as rather

persuasive, especially since HSF which could have supplied a

foolproof answer from its own records offered nothing to

suggest that it did not welcome Medicare patients. As to the

other points, see supra Part IV(A)(2), the jury heard testimony

from which it could have concluded that Ms. Gonzalez went to the

Hospital in critical condition and received only a high number

and a cold shoulder. Angel Correa's credibility emerged

relatively unscathed from cross-examination; we cannot fault the

jury either for crediting his recollection or for concluding that

the Hospital denied Ms. Gonzalez any vestige of an appropriate

screening.

To be sure, the evidence in this case is not

particularly precise. But facts at trial, as in life, do not

18

always appear in black and white. Juries and judges frequently

must distinguish between manifold shades of gray. The limited

review that we can conduct convinces us that the grays

predominate here, that the jury's finding of EMTALA liability is

within the spectrum of acceptable outcomes, and that the trial

judge did not abuse his discretion in refusing to paint over the

jury's collective judgment. No more is exigible. See Freeman,

865 F.2d at 1333-34 ("The mere fact that a contrary verdict may

have been equally or even more easily supportable furnishes

no cognizable ground for granting a new trial. If the weight of

the evidence is not grotesquely lopsided, it is irrelevant that

the judge, were he sitting jury-waived, would likely have found

the other way.").

C. Damages.
C. Damages.

On the final leg of our journey, we traverse the

Hospital's two challenges to the award of damages. In substance,

HSF maintains (a) that the plaintiffs may recover under EMTALA

only those damages stemming from the decedent's pain and

suffering, and (b) that in all events, the jury exhibited

excessive generosity. These challenges must be considered

separately for they evoke differing legal principles and

standards of review.

1. Recoverable Damages. Since questions such as
1. Recoverable Damages.

whether a statute authorizes damages in particular instances or

in favor of particular parties are quintessentially legal in

19

nature, we afford de novo review. See EEOC v. Bank of Billings,

758 F.2d 397, 401 (9th Cir.), cert. denied, 474 U.S. 902 (1985);

see also Strickland v. Commissioner, Me. Dep't of Human Servs.,

48 F.3d 12, 16 (1st Cir. 1995). HSF's claim that the plaintiffs

cannot recover damages under EMTALA for their own pain,

suffering, and anguish falls into this category. Undertaking de

novo review, we conclude that this claim is voiced too late and

augurs too little.

The chronology of the case speaks volumes about the

lack of timeliness. HSF first had the opportunity to assert this

defense in its answer to the plaintiffs' complaint, but did not

do so. In its submissions ancillary to both the initial

scheduling conference and the pretrial conference, see Fed. R.

Civ. P. 16, HSF likewise omitted any reference to the defense.

The latter omission is especially significant. The pretrial

conference is an important event in the life of a litigated case.

It is designed to assist the court in "formulati[ng] . . . the

issues, including the elimination of frivolous claims or

defenses." Fed. R. Civ. P. 16(c)(1). Along the same line, the

pretrial order is intended to shape the contours of the ensuing

trial by setting forth the legal theories upon which the parties

intend to rely. See D.P.R. Loc. R. 314.3(E). Here, HSF

undermined these mechanisms. It failed to assert the defense at

the pretrial conference, and, consequently, the pretrial order,

signed by all counsel and entered by the district court, made no

mention of any contention that EMTALA barred recovery for the

20

heirs' anguish and suffering.

The Hospital's neglect continued up to, and through,

the trial proper. In its trial brief, HSF enumerated only three

legal issues to be considered at trial. None of these dealt with

the question of whether persons other than patients (or those

suing in a patient's behalf) could recover damages under EMTALA.

At the close of the plaintiffs' case, HSF unsuccessfully moved

for judgment as a matter of law, see Fed. R. Civ. P. 50(a), but

without calling the court's attention to the alleged impropriety

of compensating the plaintiffs for their own pain and suffering.

At the close of all the evidence, the Hospital renewed its Rule

50(a) motion, but did not add any new grounds. To cinch matters,

the Hospital eschewed any objection to the trial court's

inclusion of the plaintiffs' claims for their own pain,

suffering, and mental anguish in the verdict forms and the jury

instructions. This was a waiver, pure and simple. See Fed. R.

Civ. P. 49(a), 51; see also Putnam Resources v. Pateman, 958 F.2d

448, 456 (1st Cir. 1992) ("Silence after instructions, including

instructions on the form of the verdict to be returned by the

jury, typically constitutes a waiver of any objections.").

Based on this somber record of inattention, we hold

that HSF forfeited the theory of defense that it now espouses.

In reaching this conclusion, we give special weight to the

Hospital's boycott of the final pretrial order. That order is

intended to "control the subsequent course of the action," and

can be modified only "to prevent manifest injustice." Fed. R.

21

Civ. P. 16(e). An appellate court should not lightly relieve a

litigant from the condign consequences of its failure to list a

theory of defense at that critical stage of the proceedings.

See, e.g., Ramirez Pomales v. Becton Dickinson Co., 839 F.2d 1, 3

(1st Cir. 1988) (explaining that issues not included in the final

pretrial order are generally waived). If pretrial orders are to

achieve their intended purpose, "courts and litigants must

ordinarily take them seriously." Roland M. v. Concord Sch.

Comm., 910 F.2d 983, 999 (1st Cir. 1990), cert. denied, 499 U.S.

912 (1991).

While waivers are sometimes overlooked on appeal, none

of the possible routes around HSF's waiver are passable. The

suggestion that the Rule 50(a) motion preserved the defense is

little short of jejune. A motion for judgment as a matter of law

made at the close of all the evidence preserves for review only

those grounds specified at the time, and no others. See Sanchez,

37 F.3d at 723; Sweeney v. Westvaco Co., 926 F.2d 29, 37 (1st

Cir.), cert. denied, 502 U.S. 899 (1991). By the same token, the

suggestion that HSF's post-trial motion for judgment

notwithstanding the verdict a motion in which HSF for the first

time made a claim that EMTALA did not authorize a recovery by the

plaintiffs for their own pain, suffering, and anguish saves the

day is equally unavailing. Indeed, this motion is a classic

example of a litigant locking the barn door long after the horse

has bolted. As the name implies, a renewed motion for judgment

as a matter of law under Fed. R. Civ. P. 50(b) is bounded by the

22

movant's earlier Rule 50(a) motion. The movant cannot use such a

motion as a vehicle to introduce a legal theory not distinctly

articulated in its close-of-evidence motion for a directed

verdict. See Sanchez, 37 F.3d at 723; Perdoni Bros., Inc. v.

Concrete Sys., Inc., 35 F.3d 1, 3 (1st Cir. 1994); Systemized of

New Eng., Inc. v. SCM, Inc., 732 F.2d 1030, 1035-36 (1st Cir.

1984); see also James W. Moore, 5A Moore's Federal Practice

50.08 (2d ed. 1994) (explaining that a motion for judgment after

the verdict under Rule 50(b) "may only be premised upon

particular grounds raised in the earlier motion made at the close

of all the evidence," and that, accordingly, "any argument

omitted from the motion made at the close of the evidence is

waived as a ground for judgment under Rule 50(b)").

The last possibility that we consider relates to the

reality that the raise-or-waive rule (like virtually all subsets

of the plain error principle) admits of an occasional exception

in the interests of justice. Thus, the court of appeals has

discretion to relieve a party from the normal consequences of

failure to proffer a defense in a timeous manner. See United

States v. La Guardia, 902 F.2d 1010, 1013 (1st Cir. 1990)

(holding that "an appellate court has discretion, in an

exceptional case, to reach virgin issues"); accord Singleton v.

Wulff, 428 U.S. 106, 121 (1976); United States v. Krynicki, 689

F.2d 289, 291-92 (1st Cir. 1982). But the exceptions are few and

far between, and appellate discretion should not be affirmatively

exercised unless error is plain and the equities heavily

23

preponderate in favor of correcting it. To meet this benchmark,

the omitted argument ordinarily will have to be "highly

persuasive," and declining to reach it will have to portend "a

miscarriage of justice." Krynicki, 689 F.2d at 292. Taking into

account the dimensions of this obstacle, we discern no compelling

basis for invoking this court's discretion.

EMTALA looks to state law, broadly defined to include

Puerto Rico law, see 42 U.S.C. 410(h), 1395x(x), anent the

availability of damages. It contains the following instruction:

Any individual who suffers personal harm as a
direct result of a participating hospital's
violation of a requirement of this section
may, in a civil action against the
participating hospital, obtain those damages
available for personal injury under the law
of the State in which the hospital is located
. . . .

42 U.S.C. 1395dd(d)(2). HSF's argument in effect proposes that

we construe the words "individual" and "direct" as denoting the

patient herself, and no one else. But this is only one of two

possible constructions of the statute. It is equally open to

read the law as permitting an individual who has a special

relationship with another say, a wife deprived of consortium

or, as here, a bereaved relative to sue when she is harmed in

direct consequence of an EMTALA violation inflicted upon such

other. When death results, this reading would naturally extend

the statutory prerogative to individuals who are eligible to

bring survivors' actions under local law. See, e.g., Lane v.

Calhoun-Liberty County Hosp. Ass'n, Inc., 846 F. Supp. 1543, 1553

(N.D. Fla. 1994) (permitting claimants to recover those damages

24

available to survivors under Florida law); Griffith v. Mount

Carmel Med. Ctr., 842 F. Supp. 1359, 1365 (D. Kan. 1994)

(affirming award of damages to wife and children of a decedent).

Since both readings are superficially plausible, we

cannot say it was plain error for the lower court, in the absence

of any timely objection, to interpret the statute generously,

thus providing remediation for the decedent's heirs comparable to

that which they would ordinarily receive under local law. See

Widow of Delgado v. Boston Ins. Co., 101 P.R. Dec. 598, 599-60 (1

Official Translation 824, 825) (1973) (explaining that the heirs

of a person who died through another's negligence have claims

both for their own suffering and the suffering of the decedent).

2. Excessiveness. HSF's final storming of the
2. Excessiveness.

barricades consists of a frontal attack on the amount of the

jury's award and a flanking attack on Judge Perez-Gimenez's

decision not to trim it. Both determinations are reviewable

under an abuse-of-discretion rubric. See, e.g., Segal v. Gilbert

Color Sys., Inc., 746 F.2d 78, 81 (1st Cir. 1984).

This aspect of the case centers around the size of the

aggregate damage award. Excessiveness, like beauty, is often in

the eye of the beholder. Accordingly, the case law instructs

that a damage award must endure unless it is "grossly excessive,

inordinate, shocking to the conscience of the court, or so high

that it would be a denial of justice to permit it to stand." Id.

at 80-81 (quoting Grunenthal v. Long Island R.R. Co., 393 U.S.

156, 159 & n.4 (1968); internal quotation marks omitted). An

25

appellate court's normal disinclination to second-guess a jury's

evaluation of the proper amount of damages is magnified where, as

here, the damages entail a monetary valuation of intangible

losses, and the trial judge, having seen and heard the witnesses

at first hand, accepts the jury's appraisal. See Ruiz v.

Gonzalez Caraballo, 929 F.2d 31, 34 (1st Cir. 1991).

Measured by this standard, the verdicts in favor of the

survivors are beyond reproach. Puerto Rico law permits certain

close relatives to bring suits of this type without requiring a

showing of physical injury or economic loss. See P.R. Laws Ann.

tit. 31, 5141 (1990); see also LaForest v. Autoridad de Las

Fuentes Fluviales, 536 F.2d 443, 444-45 (1st Cir. 1976) (applying

Puerto Rico law and allowing wrongful death action by the

decedent's parents and siblings); Burke v. Compagnie Nationale

Air France, 699 F. Supp. 1016, 1018 (D.P.R. 1988) (explaining

that, under Puerto Rico's Civil Code, "mental suffering is

generally just as compensable as physical harm").

Here, the plaintiffs presented both lay testimony and

expert opinion evidence regarding their pain, suffering, and

mental anguish (past, present, and future). The testimony

indicated that the decedent was a matriarchal figure who

functioned as the hub of the family circle. Her son, Angel,

lived with her; her two daughters, Gloria and Esther, resided

nearby; her deceased son's four children who lost their father

a mere five months before their grandmother perished dwelt in

her home for much of their lives. The plaintiffs' expert

26

testified that all three of Ms. Gonzalez's children suffered

depression in the wake of their mother's death; and that the four

grandchildren experienced sadness, suffering and the like that

would take up to five years to abate.

At trial, HSF neither rebutted this testimony in kind

nor effectively impeached it. On appeal, HSF sends up a smoke

screen, resorting to highly questionable practices. Citing

authority out of context, and neglecting to insert ellipses to

signify textual omissions its citation of Ruiz, 929 F.2d at 34,

as "authority" for a proposition exactly the opposite of what the

case holds is a prime example HSF strains to carry the heavy

burden inherent in challenging a jury's award of damages for

noneconomic loss. We find its argument to be both disingenuous

and unpersuasive.

Objectively considered, the record easily supports the

jury's assessment of damages in favor of the offspring. It is

hard to doubt that the plaintiffs suffered when the woman

described by one witness as the trunk of the family tree was cut

down. The open question involves the difficult chore of

translating their pain, suffering, and anguish into dollars.

This is a matter largely within the jury's ken. See id. Taking

into account the expert's testimony and the evidence of the

close-knit family structure, the sums awarded do not shock or

even vellicate our collective conscience.

This leaves the $200,000 awarded to the heirs on

account of Ms. Gonzalez's pain and suffering. Though generous,

27

the jury's assessment does not outstrip the bounds of reason.

Due to the Hospital's failure to provide even the most

rudimentary screening, Ms. Gonzalez spent the few remaining hours

of her life in agony, beset by nausea, dizziness, and chest

pains. It is hard to imagine let alone to quantify in dollars

the sheer terror that she must have felt while waiting for

medical attention that never came.

Although HSF mounts a series of arguments crafted to

cast doubt upon the size of the verdict, these arguments are

unpersuasive. This case, in which the decedent's travails

extended over a period of several hours, is unlike cases

involving sudden death in which a decedent's pain and suffering

is limited to a few seconds or, at most, a matter of minutes.

See, e.g., Bonn v. Puerto Rico Int'l Airlines, Inc., 518 F.2d 89,

94 (1st Cir. 1976). By like token, merely showing that the

damage award is generous in comparison to other (hand-picked)

cases is insufficient to warrant relief. See Havinga v. Crowley

Towing & Transp. Co., 24 F.3d 1480, 1488-89 (1st Cir. 1994).

Finally, it is beside the point that judges in the commonwealth

courts frequently award lesser sums in wrongful death actions.

While EMTALA refers to local law to determine the scope of

damages, see 42 U.S.C. 1395dd(d)(2), this requirement does not

override the general rule that "[a] federal jury . . . is not

bound in making its determination by the amount that the

Commonwealth courts have awarded or approved." LaForest, 536

F.2d at 446-47.

28

To recapitulate, converting feelings such as pain,

suffering, and mental anguish into dollars is not an exact

science. The jury is free "to harmonize the verdict at the

highest or lowest points for which there is a sound evidentiary

predicate, or anywhere in between . . . so long as the end result

does not . . . strike such a dissonant chord that justice would

be denied were the judgment permitted to stand." Milone v.

Moceri Family, Inc., 847 F.2d 35, 37 (1st Cir. 1988). Here, we

do not find the damages assigned by the jury to cross the outer

limit of the wide universe of acceptable awards. In sum, the

damage award in the heirs' favor is neither legally inappropriate

nor so excessive as to necessitate a remittitur.10

V. CONCLUSION
V. CONCLUSION

We need go no further. HSF has not presented arguments

capable of overcoming the formidable hurdles it faces in

challenging either the liability determination or the damage

assessment of a properly instructed jury. The judgment below

must therefore be

Affirmed.
Affirmed.

10Our endorsement of the damages, including the award to the
heirs for the decedent's pain and suffering, is fortified by the
trial judge's unconditional seal of approval. See Ruiz, 929 F.2d

at 34.

29

APPENDIX
APPENDIX

EMTALA Excerpts
EMTALA Excerpts

In the case of a hospital that has a hospital

emergency department, if any individual (whether or not

eligible for benefits under [Medicare]), 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.

42 U.S.C. 1395dd(a).

If any individual (whether or not eligible for

benefits under [Medicare]) 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

30

medical facility in accordance with subsection (c)

of this section.

42 U.S.C. 1395dd(b)(1).

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 [, or]

(ii) a physician . . . 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

(B) the transfer is an appropriate transfer .

. . [as defined infra].

42 U.S.C. 1395dd(c)(1).

An appropriate transfer to a medical facility is a

transfer--

(A) in which the transferring hospital

31

provides the medical treatment within its capacity

which minimizes the risks to the individual's

health . . . ;

(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 [relevant] medical

records . . . ; [and]

(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 . . . .

42 U.S.C. 1395dd(c)(2).

A participating hospital that negligently violates

a requirement of this section is subject to a civil

monetary penalty of not more than $50,000 . . . for

each such violation.

42 U.S.C. 1395dd(d)(1)(A).

Any individual who suffers personal harm

as a direct result of a participating

32

hospital's violation of a requirement of this

section may, in a civil action against the

participating hospital, obtain those damages

available for personal injury under the law

of the State in which the hospital is

located, and such equitable relief as is

appropriate.

42 U.S.C. 1395dd(d)(2)(A).

The term "emergency medical condition" means . .

.

(A) a medical condition manifesting

itself by acute symptoms of sufficient

severity (including severe pain) such that

the absence of immediate medical attention

could reasonably be expected to result in--

(i) placing the health of the individual . . . in

serious jeopardy,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or

part . . . .

42 U.S.C. 1395dd(e)(1)(A).

A participating hospital may not delay provision

of an appropriate medical screening examination

required under subsection (a) of this section or

further medical examination and treatment required

under subsection (b) of this section in order to

33

inquire about the individual's method of payment or

insurance status.

42 U.S.C. 1395dd(h).

34