UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60343
DANIEL L. BATTLE, JR., a minor, by and through his mother and
guardian ZETA BATTLE; ZETA BATTLE, individually and DANIEL BATTLE,
SR.,
Plaintiffs-Appellants,
VERSUS
MEMORIAL HOSPITAL AT GULFPORT; DAVID L. REEVES, M.D.; DENNIS W.
AUST, M.D., and EMERGENCY CARE SPECIALISTS OF MISSISSIPPI, LTD.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
September 20, 2000
Before WIENER, BENAVIDES and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Daniel Battle, Jr. (“Daniel”), a minor, his mother Zeta Battle
(“Mrs. Battle”), and his father Daniel Battle, Sr. (“Mr. Battle”)
brought suit alleging that negligent medical treatment by David L.
Reeves, M.D., Dennis W. Aust, M.D. and Emergency Care Specialists
of Mississippi, Ltd. resulted in injuries to Daniel Battle, Jr.
1
Plaintiffs further alleged that Memorial Hospital at Gulfport
(“Memorial Hospital”) was liable to Daniel under Mississippi tort
law and that it violated the Emergency Medical Treatment and Active
Labor Act, 42 U.S.C. § 1395dd (1994) (“EMTALA”). Defendants
prevailed on all claims and Plaintiffs appeal. We affirm in part,
vacate in part and remand for further proceedings.
I. FACTS
In December 1994, fifteen-month-old Daniel suffered from viral
encephalitis, an inflammation of the brain, which resulted in
extensive neurological injury. Daniel, now six years old, was
characterized at trial as “about as damaged as a human being can be
and still be alive.”
Daniel, born on September 8, 1993, was healthy and normal
until December 22, 1994, when he developed a fever and sores on his
tongue. Mrs. Battle took Daniel to his pediatrician, Dr. Reeves,
who diagnosed an ear infection and tonsillitis and prescribed a
course of antibiotics. Daniel’s condition did not improve.
Shortly before midnight on December 24, 1994, Mrs. Battle called
and left a message with Dr. Reeves’s answering service because
Daniel’s jaws were snapping shut. Mrs. Battle then called 911
because Daniel’s face began to twitch and his eyes rolled back.
When Dr. Reeves called back, the paramedics had arrived and they
informed him that Daniel had seizures, fever and that one hand and
his face were twitching.
2
Daniel was taken to Memorial Hospital and seen in the
emergency room by Dr. Graves and Dr. Sheffield. Dr. Sheffield
performed a lumbar puncture, which Dr. Graves interpreted as
normal. After x-rays and some blood work, Daniel was diagnosed
with febrile seizures, pneumonia and an ear infection. He was
discharged and went home with a new set of antibiotics.
In the afternoon of December 25, Mrs. Battle called Dr. Reeves
again and told him that Daniel was continuing to have seizures.
Dr. Reeves instructed her to take Daniel back to the Memorial
Hospital emergency room where he was seen by Dr. Aust. On this
second trip, Mrs. Battle put “self-pay” on the emergency room paper
work. Dr. Aust diagnosed Daniel with “seizure disorder” and
pneumonia and administered Dilantin for the seizures. As Mrs.
Battle took Daniel home with a prescription for additional
Dilantin, Dr. Aust instructed her to “not bring that child right
back in here because Dilantin takes time to work.”
When the Dilantin wore off, Daniel’s seizures returned and
continued on and off throughout the day on December 26. That
afternoon, Mrs. Battle called Dr. Reeves again. Dr. Reeves
instructed her to take Daniel to Memorial Hospital and have him
admitted, which she did. Drs. Aust and Reeves ordered a CT scan,
without contrast, which was read as negative. They also ordered an
EEG, which was not read until seven days later. When read, it was
grossly abnormal.
At 9:00 p.m. on December 26, Dr. Reeves saw Daniel for the
3
first time since December 22. Daniel’s condition continued to
deteriorate. At 5:00 p.m. on December 27, Dr. Reeves’s partner,
Dr. Akin, saw Daniel. She diagnosed viral encephalitis, possibly
the rare and dangerous herpes simplex encephalitis (“HSE”), and
initiated treatment with Acyclovir, a drug that can halt the
progression of HSE in some patients. She then arranged for a
helicopter to transport Daniel to Tulane Medical Center where he
could receive care from an infectious disease specialist. When
Daniel arrived at Tulane around midnight of December 27, health
care personnel immediately did a lumbar puncture which was grossly
abnormal. They also performed a CT scan, with and without
contrast, and an MRI. All the tests revealed abnormal results
consistent with HSE.
A positive diagnosis of HSE requires a brain biopsy or a DNA
test called PCR (“polymerase chain reaction”). Daniel’s spinal
fluid, obtained from the lumbar puncture on December 27, 1994, was
tested at Tulane as well as being sent to the Whitley laboratory at
the University of Alabama, which specializes in HSE research.
Tulane’s test was negative for HSE. On January 19, 1995, Dr. Fred
Lakeman in the Whitley lab obtained a positive result on the PCR
test, indicating that Daniel had HSE.
Despite the fact that the suspicion of HSE was unconfirmed
until January 19, Daniel remained on Acyclovir throughout his
treatment at Tulane. Daniel was discharged from Tulane on February
1, 1995, in a near vegetative state. He will require 24-hour-a-day
4
care for the rest of his life.
II. PROCEDURAL HISTORY
Plaintiffs filed medical malpractice claims against Dr.
Reeves, Dr. Aust, Dr. Aust’s practice group, Emergency Care
Specialists of Mississippi, Ltd. and Memorial Hospital on October
1, 1996, in Mississippi Circuit Court. After Plaintiffs amended
their complaint to allege an EMTALA claim against Memorial
Hospital, Defendants removed the case to federal court on May 1,
1997. After extensive discovery, the case was set for trial on
September 14, 1998.
Prior to trial, the district court granted summary judgment
for Memorial Hospital on Plaintiffs’ state law claims, finding that
the claims had not been filed within the controlling Mississippi
one-year statute of limitations.
Approximately three weeks prior to trial, Plaintiffs informed
Defendants that expert witness Lowell Young, M.D., would not be
available for trial and noticed the videotape deposition of Dr.
Young for September 3, 1998, in San Francisco, California. On
September 2, 1998, Plaintiffs moved for a continuance based on the
unavailability for trial of another expert, Dr. Richard Whitley.
On September 3, 1998, Plaintiffs noticed the deposition of Whitley
for September 9, 1998. The district court granted Plaintiffs’
motion for continuance and reset the trial for January 25, 1999.
Due to a death in District Judge Bramlette’s family several
5
days before trial, the parties consented to trial before Chief
Magistrate Judge John Roper. Before trial, Magistrate Judge Roper
denied Plaintiffs’ motion in limine to prohibit evidence of Mr.
Battle’s incarceration during Daniel’s illness and prohibited
Plaintiffs from introducing into evidence the deposition of
Plaintiffs’ expert Dr. Fred Lakeman. Dr. Young’s video deposition
was admitted, but Plaintiffs were not allowed to call him live.
Plaintiffs challenge each of these rulings on appeal.
Trial commenced on January 25, 1999. At the close of
Plaintiffs’ case, the magistrate judge granted judgment for
Memorial Hospital on the EMTALA claims and dismissed it from the
case, finding that there was no evidence of disparate treatment or
failure to stabilize Daniel’s condition.1 A unanimous jury verdict
in favor of Defendants Reeves, Aust and Emergency Care Specialists
of Mississippi was entered on February 8, 1999.
III. ANALYSIS
A. EVIDENTIARY RULINGS
Plaintiffs assign as error three evidentiary rulings and argue
1
The magistrate judge granted Memorial Hospital a judgment as a
matter of law, pursuant to Federal Rule of Civil Procedure 50 on
the EMTALA claim. On appeal, Plaintiffs point out that Memorial
Hospital’s counsel had made an oral motion, referencing Rule 56
summary judgment, rather than Rule 50 and argue that this error is
important because some evidence submitted to the court in an
earlier motion for summary judgment was not submitted during the
trial for the jury’s consideration. We find that the magistrate
judge did not abuse his discretion in treating the oral motion made
by Memorial Hospital at the close of Plaintiffs’ case as a motion
for judgment as a matter of law under Rule 50.
6
that the cumulative impact of these errors resulted in prejudice
and requires reversal of the judgment for Defendants.
1. Mr. Battle’s Incarceration
Mr. Battle was incarcerated from June 1993 to June 1996.
Plaintiffs filed a motion in limine seeking to exclude evidence of
the past criminal acts of Mr. Battle under Federal Rules of
Evidence 401, 402, 403 and 609 as irrelevant, unduly prejudicial
and outweighing any probative value. Defendants responded that Mr.
Battle, who was seeking his own individual damages in the case,
might be called as a witness on the issue of damages and should be
subject to impeachment under Federal Rule of Evidence 609, which
allows evidence that a witness has been convicted of a crime
punishable by imprisonment for more than one year for the purpose
of attacking that witness’s credibility. The magistrate judge
ruled that the danger of undue prejudice did not outweigh the
probative value of evidence of the fact and duration of Mr.
Battle’s incarceration. However, Defendants were ordered not to
name or refer to the specific felonies for which Mr. Battle was
incarcerated. After the jury was selected, Plaintiffs indicated to
the court that they were considering dropping Mr. Battle’s
individual claims and again requested the court to exclude all
evidence of his felony conviction. The magistrate judge informed
Plaintiffs that if Mr. Battle’s individual claims were dismissed,
all evidence of his connection to this case would be excluded,
7
including any reference to the felony conviction. In the end,
Plaintiffs decided not to drop Mr. Battle’s individual claims.
Ultimately, Mr. Battle chose not to testify and nothing was
mentioned concerning his criminal conviction or prison term. The
only evidence admitted on this issue is a hand written note on a
social services report on page 98 of approximately 1000 pages of
Tulane medical records stating that Daniel’s father was not a part
of the family unit because he was in jail and had been denied leave
to visit. No one referred to this note in front of the jury.
On appeal, Plaintiffs contend that the magistrate judge erred
in refusing to exclude this note because the evidence was wholly
irrelevant to any issue in the case and that any probative value
was outweighed by its prejudicial impact. They note that Mr.
Battle did not take the stand during the trial, so that his
criminal conviction was not admissible for purposes of impeachment
of his credibility. See FED. R. EVID. 609(a). We review trial
court evidentiary rulings for abuse of discretion. See Jon-T
Chemicals, Inc. v. Freeport Chem. Co., 704 F.2d 1412, 1417 (5th
Cir. 1983). Under this standard, we cannot say that the magistrate
judge erred. The fact that Mr. Battle was not part of the family
unit during Daniel’s illness and its aftermath was relevant to Mr.
Battle’s individual claim for damages and its admission was not an
abuse of discretion.
2. Exclusion of Lakeman’s deposition
8
Fred Lakeman, a Ph.D. microbiomedical researcher and
virologist who runs the Whitley lab at the University of Alabama,
has done extensive research on HSE. Lakeman was responsible for
HSE testing at the Whitley lab in 1994-95, although the record is
not clear whether Lakeman personally ran Daniel’s test or had it
run by an assistant under his supervision. One critical issue at
trial was Defendants’ contention that Daniel did not have HSE.
This point is material because HSE is the only form of encephalitis
treatable by Acyclovir. Plaintiffs’ claims hinge on their
contention that delay in administering Acyclovir was the cause of
Daniel’s injuries. The evidence showed that Lakeman’s test of
Daniel’s cerebral spinal fluid (“CSF”) extracted on December 27,
1994, was positive for HSE, while Tulane’s test on the same sample
of CSF was negative. To prevail, Plaintiffs needed to convince the
jury that Lakeman’s positive result was accurate and Tulane’s
negative result was erroneous.
Counsel for Defendant Aust noticed Lakeman’s deposition
“pursuant to Rule 30, Federal Rules of Civil Procedure and other
applicable provisions of said Rules.” During the deposition
Defendants posited an objection, taking the position that the
deposition could be used for “discovery purposes only.” Plaintiffs
countered that they intended to use it “for all purposes allowed by
the Federal Rules of Civil Procedures.” Subsequently, Plaintiffs
listed Lakeman in the pretrial order as a “may call” witness, as
well as a “may call by deposition” witness. Defendants objected in
9
the pretrial order “to the use of depositions of Defendants and
other witnesses available live. Most of these depositions are
hearsay and do not meet criteria necessary to substitute for live
testimony.” At a hearing just before trial started, Defendants
submitted that the purpose of Lakeman’s deposition was to develop
Plaintiffs’ expert’s opinion and discover the basis of that
opinion. Defendants contended that they asked open-ended questions
to produce answers to submit to their own experts for review and
that they were not prepared and did not cross-examine the witness
to challenge or discredit any of his opinions. Defendants further
asserted that Lakeman was under Plaintiffs’ control and that
Plaintiffs did not demonstrate that he was unavailable. The
magistrate judge held that because Plaintiffs had not demonstrated
that Lakeman was unavailable and had not noticed a “trial”
deposition of Lakeman, the “discovery” deposition of Lakeman was
not admissible during Plaintiffs’ case-in-chief.
On appeal, Plaintiffs challenge the distinction between trial
and discovery depositions. Rule 32 of the Federal Rules of Civil
Procedure provides:
(a) Use of Depositions.
. . . (3) The deposition of a witness, whether or
not a party, may be used by any party for any purpose if
the court finds:
. . . (B) that the witness is at a greater distance than
100 miles from the place of trial or hearing, or is out
of the United States, unless it appears that the absence
of the witness was procured by the party offering the
deposition . . .
10
FED. R. CIV. P. 32(a). This court has held that nothing prohibits
the use of a discovery deposition at trial, particularly against
the party who conducted it. See Savoie v. Lafourche Boat Rentals,
Inc., 627 F.2d 722, 724 (5th Cir. 1980).
Dr. Aust defends the trial/discovery dichotomy used by the
trial court by reference to Rule 26(b)(4), which states, “[a] party
may depose any person who has been identified as an expert whose
opinion may be presented at trial. FED. R. CIV. P. 26(b)(4)(A).
Aust cites the comment to this subdivision wherein the drafters
recognized that effective cross-examination of an expert witness
requires advanced preparation, especially in cases which present
intricate and difficult issues as to which expert testimony is
likely to be determinative. See FED. R. CIV. P. 26 cmt. Subdivision
(b)(4)-Trial Preparation: Experts. However, that same comment
notes that an expert who was an “actor or viewer with respect to
transactions or occurrences that are part of the subject matter of
the lawsuit” is to be treated as an ordinary witness. See id. We
venture no opinion concerning whether Rule 26 supports the
distinction between trial and discovery depositions of experts made
by the trial court because that distinction simply does not apply
in this case to Lakeman, who, because he was a fact witness as well
as an expert, must be treated as an ordinary witness for purposes
of Rule 26 analysis.
Dr. Reeves takes a different tack on appeal, arguing that the
11
deposition was properly excluded because it was inadmissible
hearsay. Rule 804 of the Federal Rules of Evidence provides:
(b) Hearsay exceptions. The following are not excluded
by the hearsay rule if the declarant is unavailable as a
witness:
(1) Former testimony. Testimony given as a
witness at another hearing of the same or a
different proceeding, or in a deposition taken in
compliance with law in the course of the same or
another proceeding, if the party against whom the
testimony is now offered, or, in a civil action or
proceeding, a predecessor in interest, had an
opportunity and similar motive to develop the
testimony by direct, cross, or redirect
examination.
Dr. Reeves contends that Defendants did not have the requisite
similar motive to develop Lakeman’s testimony as would be the case
at trial. Defendants argued to the trial court that the deposition
was taken for the limited purpose of developing the expert’s
opinion and its basis. Defendants asked open ended questions to
produce answers to submit to their own experts for review and were
neither prepared for, nor did they attempt, cross-examination.
Finally, Defendants asserted that Plaintiffs had not demonstrated
that Lakeman was unavailable. Magistrate Judge Roper concurred
with that position and excluded the deposition, but made no
specific finding concerning similar motive.
There is no dispute that Lakeman was more than 100 miles from
the place of trial. This issue thus turns on Rule 804's similar
motive requirement. In United States v. Salerno, 505 U.S. 317
(1992), the Supreme Court held that a party has no right to
12
introduce former testimony under Rule 804 without showing similar
motive. See id. at 322. Because similar motive does not mean
identical motive, the similar-motive inquiry is inherently a
factual inquiry, depending in part on the similarity of the
underlying issues and on the context of the questioning. See id. at
326 (Blackmun, J., concurring). Moreover, like other inquiries
involving the admission of evidence, the similar-motive inquiry
appropriately reflects narrow concerns of ensuring the reliability
of evidence admitted at trial. See id.
The Fifth Circuit has not addressed how a court is to
determine similarity of motive for purposes of Rule 804(b)(1). The
Second Circuit has held that the test must turn not only on whether
the questioner is on the same side of the same issue at both
proceedings, but also on whether the questioner had a substantially
similar interest in asserting and prevailing on the issue. See
United States v. DiNapoli, 8 F.3d 909, 912 (2nd Cir. 1993). The
availability of cross-examination opportunities that were forgone
is one factor to be considered, but is not conclusive because
examiners will virtually always be able to suggest lines of
questioning that were not pursued at a prior proceeding. See id.
at 914. We find this fact-specific test for determining similar
motive valuable.
Defendants in this case were clearly on the same side of the
same issues at the deposition and at the trial and had the same
13
interest in asserting and prevailing on those issues. The core of
their argument is that they did not aggressively test Lakeman’s
answers with cross-examination type questions. They claim their
deposition questions were motivated only by the desire to
understand Plaintiffs’ case, not to test it with cross examination.
Defendants posit no argument that Lakeman’s deposition testimony
lacked reliability. They do not suggest a single question or line
of questioning that would have added reliability to the deposition.
In fact, they characterize Lakeman’s deposition testimony as
cumulative of Whitley’s testimony which was admitted at trial.
Based on the foregoing, we conclude that Defendants’ motive in
questioning Lakeman at his deposition was similar to their motive
at trial and consequently, Lakeman’s deposition was admissible
pursuant to Rule 804.
Defendants next argue that if the exclusion of Lakeman’s
testimony was error, it was harmless error. Lakeman tested
Daniel’s CSF under the auspices of Whitley’s research facility.
Defendants contend that Whitley’s testimony regarding the lab, the
testing procedures and the results covered similar ground, and
because Lakeman’s deposition added nothing essential, its exclusion
does not rise to the level of affecting Plaintiffs’ substantial
rights. See Polythane Systems, Inc. v. Marina Ventures Int’l,
Ltd., 993 F.2d 1201, 1209 (5th Cir. 1993). We disagree.
Dr. Whitley testified summarily that Tulane’s PCR test was
14
done using a “different set of primers and a different essay [sic],
by a laboratory that doesn’t have experience doing it.” Lakeman,
on the other hand, went into great detail about the differences
between the practices of the two laboratories, identifying three
variables that could account for the different results, all of
which indicated that the Whitley lab result was correct. First, he
explained that Tulane used an extraction technique that could fail
to pick up all the nucleic acid in a particular sample, while the
Whitley lab used the straight spinal fluid. Second, he discussed
dangers that arose from the handling of the sample. If the
specimen was improperly stored, the target breaks down and yields
a false negative. On the other hand, if the specimen was
contaminated by the introduction of herpes simplex it would yield
a false positive. However, although herpes is a rather common
virus, the number of people who are capable of transmitting herpes
simplex for such a contamination at a given time is very small.
Third, he explained at length the controls his lab used to guard
against false positives and negatives.
Much was made at trial of the fact that the PCR test was not
licensed for diagnosing HSE. Lakeman testified that marketing
drives the licensing process much more than science. Although the
HSE test is as reliable as HIV testing, for example, there is
little market for a HSE test, because the disease is so rare.
Whitley testified summarily on this point as well, stating only
that the PCR test is the diagnostic method of choice, but that
15
licensure has not been pursued “because of the difficulty
required.”
Given these differences, we conclude that Lakeman’s testimony
was not merely cumulative of Whitley’s deposition. In fact, it
added information that, if the jurors found it credible, might have
been determinative of the question of whether Daniel had HSE.
Therefore, the exclusion of Lakeman’s deposition testimony was not
harmless error.
3. Live Testimony of Dr. Young
On November 21, 1997, the district court set this case for
trial on its September 1998 calendar. On August 26, 1998,
Plaintiff noticed the video deposition of an expert witness, Dr.
Lowell Young, in San Francisco, California, due to his
unavailability for trial. Defendants objected and the court ruled
that Dr. Young’s trial deposition should be taken in the interest
of justice.
On September 2, 1998, one day before Dr. Young’s scheduled
deposition, Plaintiffs filed a motion for continuance of the trial,
citing the unavailability of Dr. Whitley, another expert, for trial
or deposition. Defense counsel objected to revealing their cross-
examination strategy if Dr. Young was deposed and later allowed to
testify live. The court held a hearing on the motion for
continuance by telephone conference call on September 3, 1998, just
prior to the start of Dr. Young’s deposition, but no record was
16
made of the hearing. On September 9, 1998, the court entered an
order finding Plaintiffs’ actions dilatory, granting the motion to
continue, resetting the trial for January 25, 1999, and ruling that
Dr. Young’s testimony could be presented only by his video
deposition taken on September 3, 1998.
On appeal, Plaintiffs contend that the district court abused
its discretion in requiring Dr. Young’s testimony to be presented
by video deposition rather than live. Plaintiffs rely on Jauch v.
Corley, 830 F.2d 47 (5th Cir. 1987), which held that a trial court
erred in allowing the introduction of a witness’s deposition when
the record showed that the witness worked less than a mile from the
courthouse, because “a deposition is an acceptable substitute for
oral testimony when in-court observation of the witness is
extremely difficult or virtually impossible.” See id. at 50.
Federal Rule of Civil Procedure 32(a)(3), limiting the use of a
deposition unless a witness is unavailable or exceptional
circumstances justify its admission, formed the basis of Jauch’s
preference for live testimony at trial.
Defendants respond that Dr. Young lives and works more than
100 miles from the location of the trial, thus satisfying Rule
32(a)(3)(B)’s unavailability requirement and rebutting the
preference for live testimony over deposition. There is nothing in
the record to otherwise establish his availability. Defendants
also point out that the preference for live testimony over
17
depositions is strongest when the deposition is presented to the
jury in the form of a cold transcript. A videotaped deposition, on
the other hand, allows jurors to gauge the witness’s attitude
reflected by his motions, facial expressions, demeanor and voice
inflections. See United States v. Tunnell, 667 F.2d 1182, 1188
(5th Cir. 1982).
Even assuming Dr. Young was available for trial, we conclude
that the district court did not abuse its discretion in requiring
Plaintiffs to use the video deposition rather than live testimony
in this case. The district court attempted to balance the
competing interests of Defendants in protecting their cross
examination strategy against Plaintiffs’ need for Dr. Young’s
testimony in light of Plaintiff’s dilatory tactics. The district
court’s discretion is broad enough to allow the remedy fashioned
here -- the use of a video deposition of one expert witness in
place of live testimony. We find no abuse of discretion in this
evidentiary ruling.
B. JURY ARGUMENT AND INSTRUCTIONS
1. Note, not in evidence, read to jury during closing argument
A trial court’s decisions regarding closing argument are
reviewed for abuse of discretion. See Nissho-Iwai Co. v.
Occidental Crude Sales, Inc., 848 F.2d 613, 619 (5th Cir. 1988).
In reviewing a closing argument, we consider the argument in
conjunction with the jury charge and any corrective measures taken
18
by the court. See Grizzle v. Travelers Health Network, Inc., 14
F.3d 261, 269-70 (5th Cir. 1994).
During closing argument, Dr. Aust’s attorney stated: “Dennis
[Aust] wrote me a note and I’m going to read it to you. I am not
going to edit it.” Plaintiffs objected that the note was not in
evidence and would constitute additional testimony. The magistrate
judge overruled the objection and the note was read to the jury:
If all these experts have such difficulty in agreeing
with each other, how could a general pediatrician who has
never seen herpes simplex encephalitis before supposed to
know how to proceed?
The magistrate judge gave no cautionary instruction to the
jury that the note was not evidence. However, over the course of
the trial the magistrate judge instructed the jury several times
that argument and statements of counsel were not to be considered
evidence. This instruction was set out in the written instructions
to the jury as well.
Plaintiffs argue on appeal that the note constituted testimony
by Aust when he was not in court or under oath that was not tested
by cross examination or other method of impeachment. Stated
differently, the note was hearsay which was inadmissible under
Federal Rule of Evidence 801. Plaintiffs argue that the note was
particularly harmful because it addressed the burden of proof,
essentially stating that a dispute between experts meant Plaintiffs
had not proven their case.
Defendants point out that counsel is generally allowed
19
“reasonable latitude” in making argument. See Whitehead v. Food
Max of Miss., Inc., 163 F.3d 265, 275 (5th Cir. 1998). Further,
they argue that any error was cured by the jury instructions and
was therefore harmless. The question, if stated by the attorney
rather than attributed to Dr. Aust, would have been appropriate
argument. Defendants contend that framing an appropriate argument
as a note from a defendant did not “impair the calm and
dispassionate consideration of the case by the jury” and therefore
it does not justify reversal. Dixon v. Int’l Harvester Co., 754
F.2d 573, 586 (5th Cir. 1985). We disagree. A comment by a party
made out of court and not under oath is inadmissible hearsay. We
conclude that the magistrate judge abused his discretion in
allowing defense counsel to circumvent the rules of evidence by
reading the note to the jury verbatim in closing argument.
2. Comparative negligence instruction
The magistrate judge granted Defendants’ request for a
comparative negligence instruction advising the jury that it could
reduce the amount of Mrs. Battle’s damages if it found that she was
negligent and that her negligence was a proximate cause of Daniel’s
condition. The instruction was clear that, as a matter of law, an
infant cannot be comparatively negligent and that Daniel’s damages
could not be reduced due to any comparative negligence of his
mother.
We review challenges to jury instructions for abuse of
20
discretion. See United States v. Monroe, 178 F.3d 304, 307 (5th
Cir. 1999). A judgment will be reversed only if the charge as a
whole creates substantial and ineradicable doubt whether the jury
has been properly guided in its deliberations. See Batts v. Tow-
Motor Forklift Co., 978 F.2d 1386, 1389 (5th Cir. 1992).
As a prerequisite for the comparative negligence instruction,
there must be evidence in the record that Mrs. Battle was
comparatively negligent. See Jackson v. Southern Ry. Co., 317 F.2d
532 (5th Cir. 1963). On appeal, Plaintiffs contend that the
instruction was error because no such evidence was admitted at
trial. A review of the record belies Plaintiffs’ position.
Plaintiffs’ case hinges on the theory that Daniel’s neurological
sequella would have been decreased or prevented if HSE had been
diagnosed and Acyclovir antiviral therapy initiated sooner. There
is evidence, albeit disputed, that Mrs. Battle refused Dr. Aust’s
recommendation that Daniel be admitted to the hospital during his
second emergency room visit. Further, there is evidence that
Daniel experienced seizure activity on and off all day before she
brought him back to the emergency room in the late afternoon of
December 26, after Dr. Aust had given her instructions to call or
return to the hospital if there were any changes in the child’s
condition. (Again, it is disputed whether this was attributable to
Mrs. Battle’s negligence. There was also evidence that Dr. Aust
told her not to bring the child right back but to allow the
21
anticonvulsant medication time to work, which could have been
interpreted by the jury as accounting for Mrs. Battle’s delay in
returning Daniel to the emergency room.)
We conclude, based on the evidence of Mrs. Battle’s decisions
to refuse to allow Daniel to be admitted to the hospital earlier
and to delay returning to the hospital, that the magistrate judge
did not err in giving the jury a comparative negligence
instruction.
C. CUMULATIVE EFFECT OF TRIAL ERRORS
Finding merit in two of Plaintiffs’ grounds of error -- the
exclusion of Lakeman’s deposition and error in jury argument -- we
conclude that the substantial rights of Plaintiffs were affected.
Therefore, judgment for Defendants must be vacated and this case
remanded for further proceedings.
D. MEMORIAL HOSPITAL’S LIABILITY
We review de novo the district court’s grant of summary
judgment in favor of Memorial Hospital on Plaintiffs’ state law
claims, as well as dismissal of the EMTALA claims, see Fields v.
Hallsville Indep. Sch. Dist., 906 F.2d 1017, 1019 (5th Cir. 1990),
and the magistrate judge’s denial of Plaintiffs’ motion to
reconsider for abuse of discretion. See Calpetco 1981 v. Marshall
Exploration, Inc., 989 F.2d 1408, 1414-15 (5th Cir. 1993).
1. Statute of Limitations for Mississippi Tort Claims
The district court granted summary judgment for Memorial
22
Hospital on Plaintiffs’ Mississippi tort claims, finding that
Plaintiffs had not brought suit within the applicable one-year
statute of limitations. In determining the start date of the one-
year time limit, the district court began with the date Daniel was
diagnosed with HSE, December 27, 1994.
The district court rendered its opinion on December 1, 1998.
On January 21, 1999, the Mississippi Supreme Court ruled that the
“discovery rule” controls the calculation of the statute of
limitations for the Mississippi Tort Claims Act, MISS. CODE ANN. §
11-46-11, et seq. See Barnes v. Singing River Hosp. Sys., 733
So.2d 199 (Miss. 1999). The “discovery rule” provides that the one
year statute of limitations begins when the injured party is aware
of (1) the injury and (2) that an act or omission of the negligent
party caused the injury. See id. at 204. The Barnes decision was
handed down on January 21, 1999. See id. On January 25, 1999,
trial commenced in this case. On February 1, 1999, after
completing their case-in-chief on liability with only a damage
witness remaining, Plaintiffs filed a motion for reconsideration of
the summary judgment dismissing their state law claims against
Memorial Hospital, citing Barnes. The magistrate judge initially
denied the motion from the bench as untimely and followed up with
a written order denying the motion on the merits. The order
considers the Barnes decision, then notes that the Mississippi
Supreme Court issued another opinion concerning the application of
23
the discovery rule to § 11-46-11(3) on February 4, 1999. In the
latter decision, Robinson v. Singing River Hosp. Sys., 732 So.2d
204 (Miss. 1999), the Mississippi Supreme Court unequivocally
restricted the discovery rule to latent injuries. See id. at 208.
On appeal, Plaintiffs argue that Daniel’s injury was latent until
February 1996, when they received a letter from Dr. Young stating
that, in his opinion, Defendants were responsible for Daniel’s
injury because they failed to timely diagnose and treat his
infection. Plaintiffs’ argument is without merit. Under Robinson,
a Mississippi tort claim accrues when a claimant was aware or
should have been aware of his condition. See id. It cannot be
reasonably argued that Daniel’s injury was latent from the time
encephalitis was diagnosed in December 1994 until February 1996.
2. Dismissal of EMTALA claims against Memorial Hospital
Judgment as a matter of law is proper if, under the governing
law, there is only one reasonable conclusion as to the verdict.
See Deus v. Allstate Ins. Co., 15 F.3d 506, 513 (5th Cir. 1994).
In considering whether there is sufficient evidence to submit the
case to the jury, the court must examine all evidence in the light
and with all reasonable inferences most favorable to the nonmovant.
See Turner v. Purina Mills, Inc., 989 F.2d 1419, 1421 (5th Cir.
1993).
Plaintiffs’ complaint alleged liability against Memorial
Hospital under EMTALA. Congress enacted EMTALA “to prevent
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‘patient dumping,’ which is the practice of refusing to treat
patients who are unable to pay.” Marshall v. East Carroll Parish
Hosp., 134 F.3d 319, 322 (5th Cir. 1998). The act requires that
participating hospitals give the following care to an individual
who is presented for emergency medical care: (1) an appropriate
medical screening, (2) stabilization of a known emergency medical
condition, and (3) restrictions on transfer of an unstabilized
individual to another medical facility. See 42 U.S.C. § 1395dd(a)-
(c). Plaintiffs alleged that Memorial Hospital violated the
screening and stabilization prongs of EMTALA. “Because hospitals
can act and know things only vicariously through individuals, any
EMTALA violation by . . . a physician [who treat patients in
fulfillment of their contractual duties with the hospital] is also
a violation by the hospital. See Burditt v. U.S. Dep’t of Health
& Human Services, 934 F.2d 1362, 1374 (5th Cir. 1991).
a. Screening
An appropriate medical screening examination is determined “by
whether it was performed equitably in comparison to other patients
with similar symptoms,” not “by its proficiency in accurately
diagnosing the patient’s illness. Marshall v. East Carroll Parish
Hosp. Serv. Dist., 134 F.3d 319, 322 (5th Cir. 1998). A hospital’s
liability under EMTALA is not based on whether the physician
misdiagnosed the medical condition or failed to adhere to the
appropriate standard of care. See id. Instead, the plaintiff must
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show that the hospital treated him differently from other patients
with similar symptoms. See id. at 324. In Marshall, the Fifth
Circuit found the evidence of an EMTALA violation insufficient
where the record contained no description or identification of
other patients who allegedly came to the hospital’s emergency room
with symptoms similar to those of the plaintiff. See id.
Plaintiffs identify three parts of the record to support their
position that the EMTALA screening claim should have been submitted
to the jury. First, they compare the screening performed on Daniel
during his first emergency room visit with the screening provided
during his second and third visits to establish disparate
treatment. Plaintiffs allege that Daniel was subjected to
disparate treatment because he was given a lumbar puncture on his
first emergency room visit but not on his second visit because Mrs.
Battle revealed on the second visit that Daniel was uninsured. The
decision that a patient who had a normal lumbar puncture
approximately sixteen hours earlier in the same hospital does not
require a repeat of that procedure, while arguably an error in
medical judgment, does not constitute disparate treatment under
EMTALA. Similarly, Plaintiffs’ complaint that Defendants failed to
order an EEG, MRI or a CT scan with contrast, does not inform the
query relevant to EMTALA liability, that is, how Memorial Hospital
treated other patients with similar symptoms.
Second, the evidence showed that the EEG done on December 27
26
was not read until January 4, when it was found to be grossly
abnormal. While the evidence may support Plaintiffs’ view that the
delay was wholly unacceptable, there is no evidence that the
hospital afforded Daniel disparate treatment in this respect.
Daniel had been admitted by this time and there is no evidence in
this record concerning how long it takes to read EEGs for other
inpatients at Memorial Hospital.
Third, Memorial Hospital’s Emergency Department Nursing Care
Standards provide that “[i]nfants and elderly are usually
hospitalized if no definitive source for fever/infection” is
determined. Plaintiffs argue that Defendants had not determined a
definitive source for Daniel’s fever and infection but discharged
him anyway. Evidence that a hospital did not follow its own
screening procedures can support a finding of EMTALA liability for
disparate treatment. See Repp v. Anadarko Mun. Hosp., 43 F.3d 519
(10th Cir. 1994). Defendants respond that they had diagnosed
Daniel with pneumonia and an ear infection, thus identifying a
definitive source of his fever and infection. Further, they argue
that the Nursing Care Standards do not embody the hospital’s
screening procedures because they are written for use by nurses who
have no decision-making authority in hospital admissions. Also,
the standards do not dictate admissions but, by use of the word
“usually,” simply describe the usual course of events for the
information of the nursing staff. Finally, Defendants point to
27
evidence that Dr. Aust would have admitted Daniel but for Mrs.
Battle’s refusal.
Defendants’ explanations for Memorial Hospital’s failure to
follow its own published standards in Daniel’s case, while perhaps
persuasive to a jury, require credibility determinations that
preclude judgment as a matter of law. A rational jury may have
concluded, based on the notations concerning Daniel’s seizure
disorder, that the source of his fever and infection was not
determined at the time he was released. Further, a jury could have
concluded that Daniel was sent home sooner than other similarly
situated patients. The evidence does not support Defendants’ false
dichotomy that Defendants had to release Daniel immediately to go
home or to admit him as an inpatient. Memorial Hospital’s policy
may have been satisfied by further screening – that is, continued
observation in the emergency room until the source of Daniel’s
fever and infection was confirmed. Finally, we note that the jury
heard evidence concerning an alleged motivation for Memorial
Hospital’s disparate treatment of Daniel. He was Black, poor,
uninsured and presented at the emergency room during the Christmas
holidays. Based on the conflicting evidence in the record, we hold
that the judgment as a matter of law on the screening prong of
their EMTALA claim was error.
b. Stabilization
EMTALA requires stabilization of a known emergency medical
28
condition. See 42 U.S.C. § 1395dd(b)(1). The duty to stabilize
does not arise unless the hospital has actual knowledge that the
patient has an unstabilized medical emergency. See Marshall, 134
F.3d at 325. The statute defines emergency medical condition as
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).
If the hospital has actual knowledge of the emergency medical
condition, it must then provide either “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 for transfer of the individual to another
medical facility . . . .” § 1395dd(b)(1)(A)&(B). Under EMTALA, “to
stabilize” means “to provide such medical treatment of the
condition 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. . . .” 42 U.S.C. § 1395dd(e)(3)(A).
The Fifth Circuit has defined “to stabilize” as “[t]reatment that
medical experts agree would prevent the threatening and severe
consequence of” the patient’s emergency medical condition while in
transit. See Burditt v. United States Dep’t of Health & Human
29
Servs., 934 F.2d 1362, 1369 (5th Cir. 1991).
In order to prevail on appeal, Plaintiffs must identify
evidence from which a jury could conclude that Memorial Hospital
had actual knowledge that Daniel had an emergency medical condition
and, if so, that he was not stabilized prior to discharge.
Plaintiffs point out Dr. Aust’s written diagnosis of “seizure
disorder” on the emergency room chart. Plaintiffs’ experts
testified that a “seizure disorder” is an emergency medical
condition because deterioration is likely to occur, and in fact, in
this case did occur. There is evidence in this record from which
a jury could conclude that, particularly by the second emergency
room visit, Memorial Hospital released Daniel even though the
doctors knew he was suffering from seizures that had not been
stabilized and were of an unknown etiology. We therefore conclude
that the magistrate judge erred in granting judgment as a matter of
law on the stabilization prong of Plaintiffs’ EMTALA claim.
IV. CONCLUSION
Based on the foregoing, we affirm summary judgment for
Memorial Hospital on Plaintiffs’ state law tort claims, vacate the
judgment for Defendants on the negligence claims, vacate the
judgment as a matter of law for Defendants on the EMTALA claims and
remand for further proceedings consistent with this opinion.
AFFIRMED in part, VACATED in part and REMANDED.
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