Alvarez-Torres v. Ryder Memorial Hospital, Inc.

             United States Court of Appeals
                        For the First Circuit
No. 08-2351

                  PROVIDENCIA ALVAREZ-TORRES et al.,

                        Plaintiffs, Appellants,

                                  v.

                 RYDER MEMORIAL HOSPITAL, INC. et al.,

                        Defendants, Appellees.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF PUERTO RICO
             [Hon. Francisco Besosa, U.S. District Judge]


                                Before

                   Lipez and Howard, Circuit Judges,
                    and Woodcock, District Judge.*


     José Luis Ubarri, with whom Brown & Ubarri was on brief, for
appellant.
     Teresa M. García-Moll for appellee Ryder Memorial Hospital,
Inc.
     José A. Gonzalez Villamil on brief for appellees Dr. Enrique
Octavio Ortiz-Kidd, the conjugal partnership of Dr. Enrique Octavio
Ortiz-Kidd and his wife, and Triple-S, Inc.
     José Miranda Daleccio on brief for appellee Juan Ramón Gómez
López.
     Igor Domínguez Pérez on brief for appellee Dr. Griselle
Pastrana.
     Luis R. Ramos Cartagena on brief for appellee Sindicato de
Aseguradores de Impericia Medico Hospitalaria.


                           September 4, 2009



     *
         Of the District of Maine, sitting by designation.
           LIPEZ, Circuit Judge.           The surviving family of Adalberto

Martínez   López    brought       suit   against      a   hospital     and   several

physicians, alleging a violation of the Emergency Medical Treatment

and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd, and various

provisions    of    state    law.        The   district       court    granted   the

defendants'    motion       for     summary      judgment,      concluding       that

plaintiffs    had   failed    to    make   out    a   claim    under    EMTALA    and

declining to exercise supplemental jurisdiction over the state-law

claims.

           Plaintiffs appeal, arguing, inter alia, that the evidence

supports a claim for failure to stabilize under EMTALA. Finding no

error, we affirm.

                                         I.

A. Factual Background

           On appeal from a grant of summary judgment, we state the

facts in the light most favorable to the non-movant.                   Levesque v.

Doocy, 560 F.3d 82, 84 (1st Cir. 2009).

           At 6:45 p.m., on January 16, 2001, Adalberto Martínez

López ("Martínez") came to the Ryder Memorial Hospital, Inc.

("Ryder") Emergency Room complaining of chest pain and bleeding

from a femoral dialysis catheter site.                Martínez was fifty-seven

years old at the time and an end-stage renal disease dialysis

patient.   His vital signs were taken, and at 6:50 p.m. Martínez was

examined by Dr. Griselle Pastrana, an emergency room physician.


                                         -2-
Dr. Pastrana documented that Martínez was actively bleeding from

the catheter site and that he was weak and dizzy.            She described

his general condition as "alert, oriented [and] mildly pale," and

noted his end-stage renal disease.        Dr. Pastrana ordered a variety

of tests for Martínez, including a chest x-ray, an EKG, and a "type

and cross for four units of Packed Red Blood Cells."

           At 7:30 p.m., Dr. Pastrana discussed Martínez's case with

Dr. Enrique Ortíz-Kidd, a nephrologist at Ryder.            Dr. Ortíz-Kidd

then ordered Martínez's admission to Ryder's "Medicine Floor" and

the completion of the tests ordered by Dr. Pastrana.          Martínez was

admitted to the Medicine Floor at 7:39 p.m., with orders for bed

rest, testing of vital signs every four hours, and hemodialysis and

a blood transfusion the next morning.

           Martínez did not arrive in his room on the Medicine Floor

until 9:30 p.m.      When he arrived, he was described as alert, but

pale, feverish, and complaining of chest pain.           The catheter site

remained   bloody.     At   10   p.m.,   the   on-duty   nephrologist,   Dr.

Baquero, was contacted and informed of Martínez's vital signs. Dr.

Baquero prescribed, among other things, an antibiotic and Tylenol,

which were administered at 10:20 p.m.          At 12:15 a.m., January 17,

Dr. Ortíz-Kidd gave a telephone order to change the bandage on

Martínez's catheter site, apply pressure, and prepare for a blood

transfusion in the morning.




                                    -3-
           However,    Martínez   continued    to      bleed   throughout   the

night, and his bandages had to be changed several times.                      At

4:55 a.m., a relative accompanying Martínez complained to the

nursing staff that the bleeding was "profuse[]."               Staff contacted

Dr. Ortíz-Kidd, who requested a consultation with a Ryder surgeon,

Dr.   Sotomayor.      Vital   signs   taken   at   5   a.m.    reflected    that

Martínez's blood pressure had dropped and his temperature had

increased.   Nurses called an on-duty physician, Dr. Juan R. Gómez

López, who examined Martínez and ordered a blood transfusion.                He

then discussed Martínez's condition with Dr. Ortíz-Kidd over the

phone.

           At 5:30 a.m., staff contacted Dr. Ortíz-Kidd again and

informed him that Dr. Sotomayor was not available.              Dr. Ortíz-Kidd

requested that Dr. Luis Canetti, another Ryder surgeon, evaluate

the patient.       Nurses noted that when Dr. Cannetti removed the

bandages to examine Martínez, "bleeding continue[d] profusely and

abundantly." Dr. Canetti determined that Martínez required surgery

but that he could not perform it, and he recommended that Martínez

be immediately transferred to Auxilio Mutuo Hospital for an "A-V

fistula revision."     At 7 a.m., Dr. Ortíz-Kidd was notified of the

recommendation and "order[ed] [the] patient to be transferred as

soon as possible."       The blood transfusion ordered by Dr. Gómez

López began at 7:05 a.m.




                                      -4-
             Sometime between 7 and 8 a.m., nurses discovered that

Martínez was not breathing.         CPR was performed, but Martínez could

not be revived.      He was pronounced dead at 8:15 a.m., January 17,

2001.

B. Proceedings in the District Court

             On   January    15,   2003,    Martínez's     surviving    wife    and

children, including Tony Martínez Taveras, a child from another

relationship, brought suit against Ryder, Dr. Pastrana, Dr. Ortíz-

Kidd, and an unnamed physician.                 The Second Amended Complaint,

which also named as defendants Dr. Gómez López and Dr. Cannetti,

alleged     violations      of   EMTALA    by    Ryder;   malpractice   by     Drs.

Pastrana, Ortíz-Kidd, Gómez López, and Cannetti; and several other

state-law claims.1

             After defendants' motions to dismiss were, for the most

part,2 denied, a long and contentious period of discovery ensued.

At its completion, the district court granted defendants' motion

for summary judgment on November 19, 2007, on all of plaintiffs'

claims, concluding that the plaintiffs had failed to establish a

claim under EMTALA against Ryder for failure to screen or stabilize


        1
          Also named as defendants in the Second Amended Complaint
were the insurers and "conjugal partnerships" of Drs. Pastrana,
Ortíz-Kidd, Gómez López, and Cannetti. Because these defendants
are not material to the issues presented on appeal, we omit
reference to them below.
     2
          The district court dismissed claims against one of the
defendant insurers on the grounds that insurance coverage did not
extend to the alleged incident.

                                          -5-
and that EMTALA did not support claims against the individual

physicians who had treated Martínez.                It declined to exercise

supplemental jurisdiction over the state law claims pursuant to 28

U.S.C. § 1367(c)(3).

             Plaintiffs timely appealed.           On appeal, they argue that

the district court erred in dismissing the EMTALA claim for failure

to stabilize, that no EMTALA claims were brought against individual

physicians, and that the district court retained jurisdiction over

state-law claims brought by Tony Martínez Taveras on the basis of

diversity jurisdiction.

                                          II.

A. EMTALA claims against Ryder

             EMTALA is designed to prevent hospital emergency rooms

from   "refusing    to   accept      or    treat    patients    with    emergency

conditions if the patient does not have medical insurance." Correa

v.   Hosp.   San   Francisco,   69    F.3d      1189,   1189   (1st    Cir.   1995)

(internal quotation marks and citation omitted).                  To this end,

EMTALA imposes duties on covered facilities to: (a) provide an

"appropriate medical screening examination" for those who come to

an emergency room seeking treatment, and (b) provide, in certain

situations, "such further medical examination and such treatment as

may be required to stabilize the medical condition."                  42 U.S.C. §

1395dd(a), (b)(1)(A); see López-Soto v. Hawayek, 175 F.3d 170, 172-

73 (1st Cir. 1999).


                                          -6-
           To   establish      a   violation    of   the     screening     or

stabilization provisions in EMTALA, a plaintiff must prove that:

           (1) the hospital is a participating hospital,
           covered by EMTALA, that operates an emergency
           department   (or  an   equivalent   facility);
           (2) the patient arrived at the facility
           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.

Correa, 69 F.3d at 1190.

           In   this   case,   the   district    court     determined    that

plaintiffs had failed to establish a violation of either the

screening or stabilization provisions.         Plaintiffs appeal only the

stabilization ruling.    They argue that, properly construed, EMTALA

"imposes an unqualified duty to stabilize once it is determined

that the patient has an emergency medical condition," and this duty

begins upon admission to the hospital and follows the patient to

any hospital department.       They suggest that Ryder violated this

duty by failing to dispense any meaningful treatment to stabilize

Martínez's condition until it became apparent that he was about to

die.   In the alternative, plaintiffs argue that even if the duty to

stabilize applies only when a patient is transferred, "transfer"

does not require a patient to physically leave the hospital, but

only for a physician to enter an order of transfer.              Any other

interpretation, plaintiffs say, would undermine the purpose of

                                     -7-
EMTALA.    Thus, on plaintiffs' view, Dr. Ortíz-Kidd triggered the

stabilization duty by entering an order of transfer for Martínez.

               We agree with the district court that plaintiffs have

failed    to    establish   a   violation   of   the   EMTALA   stabilization

provision.      The duty to stabilize under EMTALA "does not impose a

standard of care prescribing how physicians must treat a critical

patient's condition while he remains in the hospital, but merely

prescribes a precondition the hospital must satisfy before it may

undertake to transfer the patient."              Fraticelli-Torres v. Hosp.

Hermanos, 300 Fed. Appx. 1, 4 (1st Cir. 2008) (unpublished). Thus,

a hospital cannot violate the duty to stabilize unless it transfers

a patient, as that procedure is defined in EMTALA.              See Correa, 69

F.3d at 1190 (to establish a violation of the duty to stabilize,

the plaintiff must prove, inter alia, that the hospital "bade

farewell" to the patient).

               As the Eleventh Circuit has explained, this conclusion

follows from the statutory definition of "to stabilize."              Harry v.

Marchant, 291 F.3d 767, 770-72 (11th Cir. 2002) (en banc).                The

stabilization provision requires a covered hospital, within its

staff and facilities, to provide an individual it determines has an

emergency medical condition with "such further medical examination

and such treatment as may be required to stabilize the medical

condition."       42 U.S.C. § 1395dd(b)(1)(A).          EMTALA defines "to

stabilize" as "to provide such medical treatment of the condition


                                      -8-
as     may       be    necessary      to   assure,    within     reasonable      medical

probability, that no material deterioration of the condition is

likely       to       result   from   or    occur    during    the    transfer    of   the

individual from a facility."                   Id. § 1395dd(e)(3)(A) (emphasis

added).           When this definition is inserted, the stabilization

provision requires "such further medical examination and such

treatment as may be required [to assure, within reasonable medical

probability, that no material deterioration of the condition is

likely       to       result   from   or    occur    during    the    transfer    of   the

individual from a facility]."                Id. § 1395dd(b)(1).         This directive

plainly applies only where transfer occurs.                     Otherwise, no effect

is given to the phrase "during the transfer."                        Harry, 291 F.3d at

771-72.3

                  Contrary to plaintiffs' suggestion, this interpretation

does not undermine the purposes of EMTALA by permitting hospitals

and physicians to provide substandard treatment.                           EMTALA is a

"limited          'anti-dumping'       statute,      not   a    federal     malpractice

statute."         Bryan v. Rectors & Visitors of the Univ. of Va., 95 F.3d

349,       351    (4th     Cir.    1996);    accord    Harry,    291     F.3d    at    770.

Congress's concern with patient dumping is clearly implicated when



       3
          Such an interpretation also makes sense of the larger
structure of the stabilization provision, which "set[s] forth two
options for transferring a patient with an emergency medical
condition": stabilizing the condition or transferring without
stabilizing where an exception applies. Harry, 291 F.3d at 771;
see 42 U.S.C. § 1395dd(b)(1).

                                              -9-
a hospital transfers a patient.           Harry, 291 F.3d at 773 ("The

primary legislative goal of EMTALA was remedying the problem of

inappropriate patient transfers by hospitals." (citing S. Rep. No.

99-146, at 469-70 (1986), reprinted in 1986 U.S.C.C.A.N. 42, 428-

29)).   Interpreting the stabilization provision to apply where

transfer   occurs   is   therefore    fully    consistent       with    EMTALA's

statutory purpose.

           In this case, Ryder did not violate the stabilization

provision because Martínez was never transferred.                 The statute

defines "transfer" as "the movement (including the discharge) of an

individual outside a hospital's facilities at the direction of any

person employed by (or affiliated or associated, directly or

indirectly,   with)   the   hospital."        42   U.S.C.   §   1395dd(e)(4).

Therefore,    Dr.   Ortíz-Kidd's     order    that   Martínez     was    "to   be

transferred as soon as possible" did not effectuate a "transfer"

for purposes of EMTALA.        The summary judgment record clearly

establishes that Martínez never left Ryder's facilities, and indeed

died in the room on the Medicine Floor where he was admitted the

night of January 16. Because no transfer occurred, plaintiffs have

not established a stabilization claim under EMTALA.

           The reasoning of Morales v. Sociedad Española de Auxilio

Mutuo y Beneficiencia, 524 F.3d 54 (1st Cir. 2008), does not aid

plaintiffs.    In Morales, we held that where an individual is en

route to a hospital in an ambulance, and the paramedics contact the


                                   -10-
hospital    and    discuss    the    individual's    ability     to    pay,     the

individual has "come[] to" the hospital emergency department for

purposes of triggering EMTALA's screening requirement.                 Id. at 60

(alteration in original).           EMTALA did not define "comes to," and

the    implementing     regulations     were    ambiguous    with     regards    to

individuals en route to a hospital in an ambulance.             Id. at 58, 60.

"Given the imprecision of the statute and the regulation and the

absence of reliable guidance from the agency," we interpreted

"comes to" in a way that prevented hospitals from undermining

EMTALA's statutory intent.           Id. at 60-61.        In this case, EMTALA

does    define    the   critical     expression,    "to    stabilize."        That

definition clearly shows that the duty to stabilize attaches when

a hospital transfers a patient.          Moreover, this interpretation is

fully in keeping with the statutory intent, since transfer is where

the danger of patient dumping often arises.                Plaintiffs' view of

EMTALA, in contrast, would go beyond the statutory intent and

create a duty of care for medical services provided while a patient

remains in the hospital.

B. EMTALA Claims Against the Physicians

            In its Summary Judgment order, the district court stated

that "[p]laintiffs bring their EMTALA claims not only against Ryder

but also against individual physicians."            The court then dismissed

these    claims    on   the   grounds    that    "EMTALA     applies    only    to

participating hospitals."           On appeal, plaintiffs argue that the


                                       -11-
court wrongly characterized their claims against the physicians who

treated Martínez, and suggest that these claims are based on Puerto

Rico law.

            We agree that plaintiffs' claims against Drs. Pastrana,

Ortíz-Kidd, Gómez López, and Cannetti, as reflected in the Second

Amended Complaint, are based, at least in part, on Puerto Rico law.

Nevertheless, the district court also dismissed without prejudice

"plaintiffs' state law claims against defendants," which plainly

includes state-law claims against the individual physicians.     The

district court was entitled to do this.      28 U.S.C. § 1367(c)(3)

(permitting district court to decline to exercise supplemental

jurisdiction where it has "dismissed all claims over which it has

original jurisdiction").

C. Claims brought by Tony Martínez Taveras

            Lastly, plaintiffs argue that the district court erred in

dismissing state-law claims brought by plaintiff Tony Martínez

Taveras, since there was an alternative basis of jurisdiction over

those claims.    Because Martínez Taveras is a citizen of Germany,

plaintiffs argue, the district court has diversity jurisdiction

over his state-law claims against defendants.

            We note that plaintiffs did not move to amend the Second

Amended Complaint to reflect a claim of diversity jurisdiction, as

is preferable.     See 28 U.S.C. § 1653; Com. of Mass. v. U.S.

Veterans Admin., 541 F.2d 119, 122 (1st Cir. 1976).         However,


                                 -12-
plaintiffs did raise the issue below in a proposed Pretrial Order

submitted   to   the      district    court,    and    the   defendants     had   an

opportunity to respond to plaintiffs' claim. Because we can easily

resolve plaintiffs' argument, we need not decide whether they

properly raised the alternative basis of jurisdiction on appeal.

See Futura Dev. of P.R. v. Estado Libre Asociado de P.R., 144 F.3d

7, 12 n.4 (1st Cir. 1998).

            Where    it     applies,    diversity       jurisdiction       requires

"complete diversity of citizenship as between all plaintiffs and

all defendants."       Connectu LLC v. Zuckerberg, 522 F.3d 82, 91 (1st

Cir. 2008); Gabriel v. Preble, 396 F.3d 10, 13 (1st Cir. 2005).

This means that diversity jurisdiction does not exist where any

plaintiff is a citizen of the same state as any defendant.                   Díaz-

Rodríguez v. Pep Boys Corp., 410 F.3d 56, 58 (1st Cir. 2005); see

Strawbridge   v.    Curtiss,     7    U.S.    (3   Cranch)   267,    267    (1806),

overruled on other grounds, Louisville, Cincinnati & Charleston

R.R. Co. v. Letson, 43 U.S. (2 How.) 497, 554-55 (1844).                 According

to the Second Amended Complaint, several of the plaintiffs and the

defendants are citizens of Puerto Rico.                See 28 U.S.C. § 1332(e)

(defining "States" in the diversity jurisdiction statute to include

the   Commonwealth     of    Puerto    Rico).         Therefore,    no   diversity

jurisdiction exists.

            Affirmed.




                                       -13-