Johnella Moses v. Providence Hospital, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0137p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Representative of the Estate of MARIE MOSES -
JOHNELLA RICHMOND MOSES, Personal
-
IRONS, deceased, -
Plaintiff-Appellant, -
No. 07-2111

,
>
-
-
v.
-
-
PROVIDENCE HOSPITAL AND MEDICAL
CENTERS, INC. and PAUL LESSEM, -
Defendants-Appellees, -
-
-
-
CHRISTOPHER WALTER HOWARD,
Third-Party Defendant. N

Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 04-74889—Anna Diggs Taylor, District Judge.
Argued: December 5, 2008
Decided and Filed: April 6, 2009
*
Before: CLAY and GIBBONS, Circuit Judges; STAMP, District Judge.

_________________

COUNSEL
ARGUED: Mark Granzotto, MARK GRANZOTTO, P.C., Royal Oak, Michigan, for
Appellant. Susan Healy Zitterman, KITCH, DRUTCHAS, WAGNER, DeNARDIS,
VALITUTTI & SHERBROOK, Detroit, Michigan, for Appellee. ON BRIEF: Mark
Granzotto, MARK GRANZOTTO, P.C., Royal Oak, Michigan, for Appellant. Susan
Healy Zitterman, KITCH, DRUTCHAS, WAGNER, DeNARDIS, VALITUTTI &
SHERBROOK, Detroit, Michigan, for Appellee.

*
The Honorable Frederick P. Stamp, Jr., Senior United States District Judge for the Northern
District of West Virginia, sitting by designation.

1
No. 07-2111 Moses v. Providence Hospital and Medical Ctrs., et al. Page 2

_________________

OPINION
_________________

CLAY, Circuit Judge. Plaintiff Johnella Richmond Moses, as representative of
the estate of Marie Moses-Irons (“Moses-Irons”), brings claims against Defendants
Providence Hospital and Medical Centers, Inc. (the “hospital”) and Paul Lessem (“Dr.
Lessem”) pursuant to the Emergency Medical Treatment and Active Labor Act
(“EMTALA”), 42 U.S.C. § 1395dd, and common law negligence. Plaintiff alleges that
Defendants violated EMTALA by releasing Moses-Irons’ husband from the hospital ten
days before he murdered Moses-Irons. Plaintiff appeals the district court’s decision to
grant Defendants’ motion for summary judgment and dismiss Plaintiff’s claims. For the
following reasons, we REVERSE the district court and REMAND for further
proceedings with respect to the hospital, but AFFIRM with respect to Dr. Lessem.

BACKGROUND

I. Factual Background

On December 13, 2002, Moses-Irons took Howard to the emergency room of
Providence Hospital in Southfield, Michigan because Howard was exhibiting signs of
illness. Howard’s physical symptoms included severe headaches, muscle soreness, high
blood pressure and vomiting. Howard was also experiencing slurred speech,
disorientation, hallucinations and delusions. Moses-Irons reported these symptoms to
the emergency room staff, and also informed them that Howard had “demonstrated
threatening behavior, which made her fearful for her safety.” (Joint Appendix (“J.A.”)
at 31-32.) The emergency room physicians decided to admit Howard to conduct more
tests. Among the physicians who evaluated Howard during his stay at the hospital were
Mark Silverman (“Dr. Silverman”), a neurologist; Dr. Lessem, a psychiatrist; and
Djeneba Mitchell (“Dr. Mitchell”), an internist.

Dr. Silverman examined Howard on December 14, 2002. Dr. Silverman
determined that Howard “was acting inappropriately” and “appeared to be somewhat
No. 07-2111 Moses v. Providence Hospital and Medical Ctrs., et al. Page 3

obtunded,” but had “no overt outward signs of trauma.” (J.A. at 153.) In addition to
informing Dr. Silverman of Howard’s symptoms, Moses-Irons also told him that Howard
had told her that he “had bought caskets.” (J.A. at 150.) Dr. Silverman learned from
Moses-Irons that Howard had recently tried to board a plane with a hunting knife. Dr.
Silverman ordered a magnetic resonance imaging exam, though it is unclear from the
record whether the exam ever took place. Dr. Silverman also “felt that a psychiatric
evaluation would be warranted,” as well as a “lumbar puncture.” (J.A. at 154, 158.) His
notes from the evaluation indicate his belief that “an acute psychotic episode [must] be
ruled out.” (J.A. at 153, 158.)

Dr. Lessem examined Howard several times during Howard’s stay at the hospital.
On December 17, 2002, Dr. Lessem determined that Howard was not “medically stable
from a psychiatric standpoint,” and decided that Howard should be transferred to the
hospital’s psychiatric unit called “4 [E]ast” to “reassess him.” (J.A. at 165.) According
to Dr. Lessem, 4 East is intended for patients “who are expected to be hospitalized and
stabilized and who are acutely mentally ill.” (J.A. at 165.) Dr. Lessem felt Howard
could be more closely observed at 4 East, and planned to conduct “reality testing” of
Howard there to determine the extent of Howard’s delusions. (J.A. at 168.) Dr.
Lessem’s order notes from December 17, 2002 state, “will accept [patient] to 4 [E]ast
if [patient]’s insurance will accept criteria” and “please observe carefully for any
indications of suicidal ideation or behavior.” (J.A. at 172.) Under the heading “orders
for 4 [E]ast,” Dr. Lessem wrote, “suicide precautions.” (J.A. at 173.) The notes also
indicate that Dr. Lessem believed Howard had an “atypical psychosis” and “depression.”
(J.A. at 172.)

Howard was never transferred to the psychiatric unit, and instead was informed
on December 18, 2002 that he would be released. A hospital clinical progress report
signed by Dr. Mitchell that day stated that “[patient] declines 4 [E]ast, wants to go home.
His affect is brighter. No physical symptoms now. [Patient] wishes to go home, wife
fears him. Denies any suicidality.” (J.A. at 219.) Howard stated in a deposition that he
never declined going to 4 East. In Howard’s discharge summary form filled out on
No. 07-2111 Moses v. Providence Hospital and Medical Ctrs., et al. Page 4

December 18, 2002, the hospital’s “final diagnosis” of Howard, written by a resident,
was that he had a “migraine headache” and an “atypical psychosis [with] delusional
disorder.” (J.A. at 178.) A report dated December 19, 2002, signed by Dr. Mitchell,
indicated that Howard would be “[discharged] home today . . . cannot stay as he is
medically stable and now does not need 4E.” (J.A. at 89.) Howard was released on
December 19, 2002, and on December 29, 2002, Howard murdered Moses-Irons.

On December 14, 2004, Plaintiff filed a federal suit against the hospital and Dr.
Lessem, alleging a violation of EMTALA and various negligence claims. On January
5, 2005, Defendants filed a motion to dismiss the complaint, on the ground that
EMTALA only provides a right of action for a plaintiff who sought treatment as a
hospital’s patient. On February 28, 2005, the district court denied Defendants’ motion
from the bench, stating, inter alia, that “the plain language of the statute does not
preclude a lawsuit by the injured third party.” (J.A. at 181.) Plaintiff filed an amended
complaint on September 29, 2005. On January 6, 2006, Defendants filed a third-party
complaint against Howard.

II. Motion for Summary Judgment

On May 14, 2007, Defendants filed a motion for summary judgment. In their
brief supporting their motion, Defendants raised two arguments: (1) that Plaintiff does
not have standing to sue, because only the individual patient who seeks treatment at the
hospital has standing under EMTALA; and (2) that EMTALA imposes no further
obligation on a hospital once the hospital has admitted a person as an inpatient.
Defendants’ motion did not refer to any factual record, and they attached only the
EMTALA statute and applicable regulations to their motion.

At oral argument before the district court on July 30, 2007, Defendants argued
for the first time that the hospital physicians, after conducting the proper screening, did
not diagnose Howard as having an emergency medical condition. At oral argument,
Defendants referred in general terms to the testimony and documentation of the hospital
physicians who attended to Howard to support this third argument, without producing
No. 07-2111 Moses v. Providence Hospital and Medical Ctrs., et al. Page 5

the evidence they were referencing. Neither the December 18, 2002 progress report
stating that Howard had no physical symptoms and denied “suicidality,” nor the
December 19, 2002 progress report in which Dr. Mitchell stated that Howard was stable,
was attached to Defendants’ summary judgment motion; however, both documents were
attached to Defendants’ response to a separate motion to compel discovery filed on
April 13, 2007. During oral argument, Defendants also referred to letters from Howard’s
insurance company indicating that the insurance company did not deny coverage for
Howard’s treatment until January 2003, after Howard had been released; those letters
were not submitted with Defendants’ motion papers, nor are they included in the record
on appeal.

Following oral argument, the district court granted Defendants’ summary
judgment motion from the bench, dismissing the EMTALA claim and choosing not to
exercise jurisdiction over the negligence claims. In dismissing the EMTALA claim, the
district court stated that summary judgment must be granted “regardless of the standing
issue.” (J.A. at 216.) The entirety of the district court’s reasoning for granting summary
judgment was as follows:

First of all, the EMTALA statute was not designed or intended to
establish guidelines for patient care or to provide a suit for medical
negligence or malpractice. Under the clear and unambiguous language
of the statute, the Plaintiff’s claim must be dismissed. The hospital
admitted Howard and did not turn him away, as was required by the Sixth
Circuit in Cleland [v. Bronson Health Care Group Inc., 917 F.2d 266
(6th Cir. 1990)]. The patient was undisputedly completely screened, as
the statute requires, even if on the basis of a wrong diagnosis; and he was
thereafter admitted to the Defendant hospital, and no emergency medical
condition was recognized on the screening. So, for all of those reasons
. . . the motion of the Defendants must be granted.
(J.A. at 216.) Plaintiff timely appealed.

On appeal, Plaintiff asserts that she did not receive fair notice that during oral
argument Defendants would rely on evidence that the doctors believed Howard did not
have an emergency medical condition. Had Plaintiff received proper notice, she asserts,
she would have filed with her pleadings an expert report by Harold J. Bursztajn (“Dr.
No. 07-2111 Moses v. Providence Hospital and Medical Ctrs., et al. Page 6

Bursztajn”), a professor of psychiatry at Harvard Medical School, who concluded that
Howard did have an emergency medical condition upon arriving at the hospital, and had
not stabilized by the time he was discharged. Dr. Bursztajn based his conclusion on Dr.
Lessem’s own notes from December 17, 2002, in which Dr. Lessem had diagnosed
Howard as having an atypical psychosis and possibly suicidal behavior. Dr. Bursztajn
concluded that “the symptoms and mental state described by Dr. Lessem could not be
resolved in one to two days, yet the decision to discharge Mr. Howard was made one day
later.” (J.A. at 68-69.) Dr. Bursztajn’s expert report was served and filed on October
25, 2006, as part of Plaintiff’s reply materials in connection with an earlier motion to
compel a mental examination of Howard. Plaintiff includes this expert report in the
record on appeal.

DISCUSSION

I. Standard of Review

This Court reviews a district court’s grant of summary judgment de novo.
Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1176 (6th Cir. 1996). Summary
judgment is appropriate if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, “show that there is no genuine
issue as to any material fact and that the movant is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c). As the moving party, Defendants bear the burden of
showing the absence of a genuine issue of material fact as to at least one essential
element of Plaintiff’s claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Plaintiff, as the non-moving party, must then present sufficient evidence from which a
jury could reasonably find for her. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986). This Court must then determine “whether the evidence presents sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Id. at 251-52. In making this determination, this Court
must draw all reasonable inferences in favor of Plaintiff. See Nat’l Enters., Inc. v. Smith,
114 F.3d 561, 563 (6th Cir. 1997).
No. 07-2111 Moses v. Providence Hospital and Medical Ctrs., et al. Page 7

II. Overview of EMTALA

For all hospitals that participate in Medicare and have an “emergency
department,” EMTALA sets forth two requirements. First, for any individual who
“comes to the emergency department” and requests treatment, the hospital must “provide
for an appropriate medical screening examination . . . to determine whether or not an
emergency medical condition . . . exists.” 42 U.S.C. § 1395dd(a). Second, if “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 medical facility[.]”
§ 1395dd(b). Thus, for any individual who seeks treatment in a hospital, the hospital
must determine whether an “emergency medical condition” exists, and if the hospital
believes such a condition exists, it must provide treatment to “stabilize” the patient.
Thornton v. Sw. Detroit Hosp., 895 F.2d 1131, 1134 (6th Cir. 1990).

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 . . . [inter alia] placing the health of the individual . . . in serious jeopardy[.]”
§ 1395dd(e)(1)(A)(i). “To stabilize” a patient with such a condition means “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[.]”
§ 1395dd(e)(3)(A). “Transfer” is defined in the statute to include moving the patient to
an outside facility or discharging him. § 1395dd(e)(4).

Including the argument made for the first time during oral argument before the
district court, Defendants appear to have moved for summary judgment on three
grounds: (1) Plaintiff lacks standing to sue under EMTALA; (2) EMTALA’s
requirements were satisfied when the hospital admitted Howard on December 13, 2002;
and (3) because Howard was indisputably screened and diagnosed as not having an
emergency medical condition, EMTALA did not apply. Because any one of these
No. 07-2111 Moses v. Providence Hospital and Medical Ctrs., et al. Page 8

grounds would have been sufficient for the district court to grant summary judgment to
the Defendants, we address each of them in turn.

III. Standing

In deciding Defendants’ motion for summary judgment, the district court did not
reach the issue of whether, as a non-patient, Plaintiff has standing under EMTALA to
bring a claim, although it did deny Defendants’ previous motion to dismiss on that
ground. Because Defendants prevailed below, this Court may consider affirming
summary judgment based on Plaintiff’s lack of standing. See Dandridge v. Williams,
397 U.S. 471, 475 n. 6 (1970) (“The prevailing party may, of course, assert in a
reviewing court any ground in support of his judgment, whether or not that ground was
relied upon or even considered by the trial court.”).

Pursuant to EMTALA’s civil enforcement provision, “[a]ny 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, and such equitable relief as is appropriate.” 42 U.S.C.
§ 1395dd(d)(2)(A). Neither this subsection, nor any other part of EMTALA, includes
any mention of non-patients. Moreover, this Court is not aware of any federal appellate
court that has addressed whether non-patients who allege harm as a result of a hospital’s
violation of EMTALA have standing to sue. Defendants cite two district court decisions
from other circuits, which hold that the relatives of a patient who suffers harm cannot sue
a hospital in their individual capacities for harm suffered by the patient. See Zeigler v.
Elmore Health Care Auth., 56 F. Supp. 2d 1324 (M.D.Ala. 1999); Sastre v. Hosp.
Doctors Center, Inc., 93 F. Supp. 2d 105 (D. Puerto Rico 2000). However, because the
estate of the individual who suffered an actual personal injury brings the suit in this case,
claiming personal harm as a direct result of the hospital’s decision, those decisions are
inapposite and of limited persuasive value.

“In the absence of an indication to the contrary, words in a statute are assumed
to bear their ‘ordinary, contemporary, common meaning.’” Walters v. Metro. Educ.
No. 07-2111 Moses v. Providence Hospital and Medical Ctrs., et al. Page 9

Enters., Inc., 519 U.S. 202, 207 (1997) (quoting Pioneer Inv. Servs. Co. v. Brunswick
Ass’ns Ltd. P’ship, 507 U.S. 380, 388 (1993)). The plain language of the civil
enforcement provision of EMTALA contains very broad language regarding who may
bring a claim: “any individual who suffers personal harm as a direct result” of a
hospital’s EMTALA violation may sue. § 1395dd(d)(2)(A) (emphasis added). This
language would seem to include Plaintiff, whose suit alleges that Moses-Irons’ death was
the direct result of the hospital’s decision to release her husband before his psychiatric
emergency medical condition had stabilized.

In arguing that only harmed patients may sue, Defendants contend that the phrase
“any individual” in § 1395dd(d)(2)(A) must be read in the context of other parts of the
statute. Because the medical screening requirement in § 1395dd(a) refers to an
“individual” who “comes to the emergency department” and the stabilization
requirement in § 1395dd(b) refers to an “individual” who “comes to a hospital,” the
term “any individual” in the civil enforcement provision should also be so limited.
There are two problems with reading the statute this way. First, the medical screening
requirement and the stabilization requirement do not refer to the same “individual”–the
medical screening requirement of § 1395dd(a) only applies to individuals who come to
an “emergency department,” presumably a smaller subset of individuals than those “who
come[] to a hospital” and are the subject of § 1395dd(b). This differing language
indicates that Congress did not intend EMTALA’s entire statutory scheme to apply to
the same “individual” in every part of the statute. Second, the fact that the statute
expressly limits the individual to whom the hospital owes its EMTALA obligations in
§§ 1395dd(a) and (b) further indicates that the breadth of the civil enforcement provision
was no accident. “[W]here Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion or exclusion.”
Russello v. United States, 464 U.S. 16, 23 (1983); see also Gozlon-Peretz v. United
States, 498 U.S. 395, 404-05 (1991). If Congress had intended to limit the right of action
to any individual who “comes to a hospital” as a patient, it could have done so, just as
it did in other parts of the statute. See United States v. Parrett, 530 F.3d 422 (6th Cir.
No. 07-2111 Moses v. Providence Hospital and Medical Ctrs., et al. Page 10

2008) (“Plain meaning is examined by looking at the language and design of the statute
as a whole.”).

Defendants also argue that EMTALA’s legislative history supports their narrower
construct of the civil enforcement provision. The original bill, reported out of the House
Ways and Means Committee, extended the private right of action to “any person or
entity that is adversely affected directly by a participating hospital’s violation[.]” H.R.
Rep. No. 99-241, pt. 1, at 132, reprinted in 1986 U.S.C.C.A.N. 579, 605. The bill was
referred to the House Judiciary Committee, which amended the civil enforcement
provision to a version essentially the same as its current form, changing “adversely
affected” to “suffers harm as a direct result,” and changing “person or entity” to
“individual.” H.R. Rep. No. 99-241, pt. 3 at 6, reprinted in 1986 U.S.C.C.A.N. 726, 728.
The report from the House Judiciary Committee states that as a result of its amendment
to the bill, the only individual who can sue is the “individual patient who suffers harm
as a direct result of hospital’s failure to appropriately screen, stabilize, or properly
transfer that patient.” Id.

However, where a House committee’s explanation of the meaning of a statute
seems to differ from the statute’s actual wording, this Court should not rely on that
committee’s statement as the exclusive explanation for the meaning of the statute. See
Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005) (“[J]udicial
reliance on legislative materials like committee reports, which are not themselves subject
to the requirements of Article I, may give unrepresentative committee members–or,
worse yet, unelected staffers and lobbyists–both the power and the incentive to attempt
strategic manipulations of legislative history to secure results they were unable to
achieve through the statutory text.”). In this case, the parties have not pointed to any
further legislative history, other than the one statement from the report of the House
Judiciary Committee, as proof of Congress’ intent with respect to the scope of the civil
enforcement provision. We have also failed to uncover any substantive debate over the
provision on either the House or Senate floors. As this Court has previously noted in
examining EMTALA’s legislative history, “[t]he only clear guidance from the legislative
No. 07-2111 Moses v. Providence Hospital and Medical Ctrs., et al. Page 11

history is that Congress intended to prevent hospitals from dumping patients who
suffered from an emergency medical condition because they lacked insurance to pay the
medical bills.” Thornton, 895 F.2d at 1134.

Regardless of the paucity of the legislative record on the standing issue, we
believe that the civil enforcement provision, read in the context of the statute as a whole,
plainly does not limit its reach to the patients treated at the hospital. We therefore need
not–and ought not–consult an isolated statement in a committee report. See United
States v. Choice, 201 F.3d 837, 840 (6th Cir. 2000) (“The language of the statute is the
starting point for interpretation, and it should also be the ending point if the plain
meaning of that language is clear.”).

We recognize that our interpretation of the civil enforcement provision may have
consequences for hospitals that Congress may or may not have considered or intended.
However, our duty is only to read the statute as it is written, as we have in our past
analysis of EMTALA. In Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266,
269 (6th Cir. 1990), the defendants argued that because Congress sought to protect the
rights of the indigent and uninsured in enacting EMTALA, only the indigent or
uninsured should be allowed to sue under the act. This Court expressly rejected this
narrow reading of the civil enforcement provision, stating that “[u]nfortunately for this
theory, Congress wrote a statute that plainly has no such limitation on its coverage.” Id.
Similarly here, EMTALA’s plain language belies Defendants’ argument that Congress
intended to deny non-patients the right to sue in every circumstance.

Thus, for the foregoing reasons, we conclude that Plaintiff has standing to sue
pursuant to EMTALA.

IV. The Hospital’s Obligations Upon Finding an Emergency Medical Condition

Defendants argue that, if Howard did have an emergency medical condition when
he came to the hospital, the hospital’s decision to admit him for six days and perform
further testing satisfied its obligations under EMTALA to treat so as to stabilize the
patient. We disagree.
No. 07-2111 Moses v. Providence Hospital and Medical Ctrs., et al. Page 12

Contrary to Defendants’ interpretation, EMTALA imposes an obligation on a
hospital beyond simply admitting a patient with an emergency medical condition to an
inpatient care unit. The statute requires “such treatment as may be required to stabilize
the medical condition,” § 1395dd(b), and forbids the patient’s release unless his
condition has “been stabilized,” § 1395dd(c)(1). A patient with an emergency medical
condition is “stabilized” when “no material deterioration of the condition is likely, within
reasonable medical probability, to result from or occur during” the patient’s release from
the hospital. § 1395dd(e)(3)(B). Thus, EMTALA requires a hospital to treat a patient
with an emergency condition in such a way that, upon the patient’s release, no further
deterioration of the condition is likely. In the case of most emergency conditions, it is
unreasonable to believe that such treatment could be provided by admitting the patient
and then discharging him.

In Thornton, this Court examined whether EMTALA requires hospitals to do
more for patients with emergency medical conditions than just admit them. 895 F.2d at
1134. In that case, it was undisputed that the patient initially had an emergency medical
condition when the defendant hospital admitted her to the emergency room for a stroke;
the issue was whether the hospital violated EMTALA by releasing her twenty-one days
later from the hospital’s regular inpatient care unit. Id. Although ultimately affirming
summary judgment because the patient’s condition had stabilized prior to her release,
this Court first rejected the hospital’s argument that once it transferred the patient from
the emergency room to inpatient care, its obligations under EMTALA were fulfilled:

Congress sought to insure that patients with medical emergencies would
receive emergency care. Although emergency care often occurs, and
almost invariably begins, in an emergency room, emergency care does
not always stop when a patient is wheeled from the emergency room into
the main hospital. Hospitals may not circumvent the requirements of the
Act merely by admitting an emergency room patient to the hospital, then
immediately discharging that patient. Emergency care must be given
until the patient’s emergency medical condition is stabilized.
Id. at 1135 (emphasis added). Thus, the statute requires more than the admission and
further testing of a patient; it requires that actual care, or treatment, be provided as well.
No. 07-2111 Moses v. Providence Hospital and Medical Ctrs., et al. Page 13

Accordingly, Defendants could not satisfy their EMTALA obligations merely by
screening Howard and admitting him to conduct further testing.

To support their narrower reading of EMTALA’s requirements, Defendants point
to a rule promulgated by the Centers for Medicare and Medicaid Services (“CMS”), the
agency responsible for implementing EMTALA, that effectively ends a hospital’s
EMTALA obligations upon admitting an individual as an inpatient. 42 C.F.R.
§ 489.24(d)(2)(i). According to the CMS regulation, “[i]f a hospital has screened an
individual under paragraph (a) of this section and found the individual to have an
emergency medical condition, and admits that individual as an inpatient in good faith in
order to stabilize the emergency medical condition, the hospital has satisfied its special
responsibilities under this section with respect to that individual.” Id.

Although “[a]n agency’s construction of a statutory scheme that it is entrusted
to administer is entitled to a degree of deference. . . . we must . . . ‘reject administrative
constructions which are contrary to clear congressional intent.’” Gallagher v. Croghan
Colonial Bank, 89 F.3d 275, 277-78 (6th Cir. 1996) (quoting Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984)). The CMS rule appears
contrary to EMTALA’s plain language, which requires a hospital to “provide . . . for
such further medical examination and such treatment as may be required to stabilize the
medical condition[.]” § 1395dd(b)(1)(A) (emphasis added). Although “treatment” is
undefined in the statute, it is nevertheless unambiguous, because it is unreasonable to
believe that “treatment as may be required to stabilize” could mean simply admitting the
patient and nothing further. Moreover, the statute requires the patient to be “stabilized”
upon release; “[i]f an individual at a hospital has an emergency medical condition which
has not been stabilized . . . the hospital may not transfer the individual unless” the patient
requests a transfer in writing or a physician or qualified medical person certifies that the
risks of further treatment outweigh the benefits. § 1395dd(c)(1)(A). Therefore, a
hospital may not release a patient with an emergency medical condition without first
determining that the patient has actually stabilized, even if the hospital properly
admitted the patient. Such a requirement would be unnecessary if a hospital only needed
No. 07-2111 Moses v. Providence Hospital and Medical Ctrs., et al. Page 14

to admit the patient in order to satisfy EMTALA. Because the CMS rule is contrary to
the plain language of the statute, this Court does not afford it Chevron deference. See
Gallagher, 89 F.3d at 278.

Even if the CMS regulation could somehow be deemed consistent with the
statute, its promulgation in 2003, after Howard’s stay in the hospital ended, would
preclude this Court from applying it to this case. “As a general rule, a court ‘must apply
the law in effect at the time it renders its decision. Because ‘[r]etroactivity is not favored
in the law,’ however, courts should not construe ‘congressional enactments and
administrative rules . . . to have retroactive effect unless their language requires this
result.’” BellSouth Telecomms., Inc. v. Se. Tel., Inc., 462 F.3d 650, 657 (6th Cir. 2006)
(quoting Landgraf v. USI Film Prods., 511 U.S. 244, 263-64 (1994)). To determine
whether a regulation should be applied to events arising prior to the regulation’s
enactment, courts first inquire whether the regulation expressly reaches retroactively; if
the regulation is silent on the issue, then the court asks “‘whether applying the statute to
the person objecting would have a retroactive consequence in the disfavored sense of
affecting substantive rights, liabilities, or duties on the basis of conduct arising before
its enactment.’” Id. at 658 (quoting Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37 (6th
Cir. 2006)). If such rights are affected, then courts must apply a presumption against
retroactivity. Id. Here, the CMS regulation is silent on retroactivity, and because the
regulation would affect the extent of the care that Howard could have expected upon
admission as an inpatient, the regulation “attaches legal consequences to events
completed before its enactment,” Landgraf, 511 U.S. at 270. The CMS regulation
therefore does not apply to this case, regardless of whether its interpretation of the statute
is reasonable.

In short, the hospital was required under EMTALA not just to admit Howard into
the inpatient care unit, but to treat him in order to stabilize him. Accordingly,
Defendants are not entitled to summary judgment simply on the ground that the hospital
admitted Howard as an inpatient and subjected him to several days of testing.
No. 07-2111 Moses v. Providence Hospital and Medical Ctrs., et al. Page 15

V. Existence of an Emergency Medical Condition

The district court’s reasoning in granting summary judgment was partially
predicated on its finding that the hospital conducted an appropriate screening, and that
“no emergency medical condition was recognized on the screening.” (J.A. at 216.) We
believe that whether Howard had an emergency medical condition that the hospital
recognized upon screening him is an issue of fact that the court should have left for a
jury to decide.

As an initial matter, “before summary judgment may be granted against a party,
Fed. R. Civ. P. 56(c) mandates that the party opposing summary judgment be afforded
notice and a reasonable opportunity to respond to all issues to be considered by the
court.” Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir. 1989).
“Rule 56(c) requires at a minimum that an adverse party be extended at least ten days
notice before summary judgment may be entered.” Id. “Noncompliance with the time
provision of the rule deprives the court of authority to grant summary judgment, unless
. . . [inter alia] there has been no prejudice to the opposing party by the court’s failure
to comply with this provision of the rule.” Kistner v. Califano, 579 F.2d 1004, 1006 (6th
Cir. 1978) (citations omitted).

In this case, the district court granted summary judgment from the bench at the
end of oral argument, and based its decision in part on the fact that the hospital never
detected an emergency medical condition–a ground that Defendants had not raised prior
to oral argument. Moreover, Defendants’ briefs in support of their summary judgment
motion did not include any supporting evidence whatsoever, as their written arguments
were based purely on statutory interpretation; to the extent that the district court relied
on any evidence at all with respect to this ground, such evidence came from exhibits
Defendants attached to previous filings. Although there is no rule prohibiting the district
court from considering previously submitted evidence–see Fed. R. Civ. P. 56(c)
(allowing court to consider “the pleadings, the discovery and disclosure materials on
file” in resolving a motion for summary judgment) (emphasis added)–it is still difficult
to discern how Plaintiff could have received sufficient notice of this argument, or a
No. 07-2111 Moses v. Providence Hospital and Medical Ctrs., et al. Page 16

reasonable opportunity to oppose it with evidence, without being advised that this issue
would determine the district court’s ruling on the motion.

With respect to prejudice, Plaintiff argues that had she known Defendants would
raise the absence of an emergency medical condition at oral argument, she would have
included Dr. Bursztajn’s expert report in her opposition to Defendants’ motion.
Defendants had notice of Dr. Bursztajn’s report, because it was filed in connection with
a previous motion to compel during discovery. We therefore will consider Dr.
Bursztajn’s report on appeal. In reviewing this report as well as the remainder of the
evidence in the record, we find that issues of fact exist with respect to whether the
hospital physicians actually believed Howard lacked an emergency medical condition.

An “emergency medical condition” is “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 . . . [inter alia]
placing the health of the individual . . . in serious jeopardy[.]” § 1395dd(e)(1)(A)(i).
The language in the statute does not appear to preclude classifying a psychiatric
condition as an emergency medical condition, and “the health of the individual” could
certainly include the individual’s mental health. Moreover, we are not aware of any
discussion of this issue in the legislative history. Without such guidance, we hold that
a mental health emergency could qualify as an “emergency medical condition” under the
plain language of the statute.

A. Howard’s Condition Upon Arrival at the Hospital

At the time he came to the hospital, Howard was experiencing slurred speech,
disorientation, hallucinations and delusions, and was making threatening statements,
including telling his wife that he had “bought caskets.” (J.A. at 150.) Howard’s
condition included physical symptoms such as severe headaches, muscle soreness, high
blood pressure and vomiting. Moreover, Dr. Bursztajn’s report, based on a review of
Howard’s hospital records, concluded that Howard had an emergency medical condition
upon arriving at the hospital. Thus, there is plenty of evidence in the record to create an
issue of fact with respect to whether Howard’s condition was a mental health emergency.
No. 07-2111 Moses v. Providence Hospital and Medical Ctrs., et al. Page 17

However, in order to trigger further EMTALA obligations, the hospital
physicians must actually recognize that the patient has an emergency medical condition;
if they do not believe an emergency medical condition exists because they wrongly
diagnose the patient, EMTALA does not apply. Roberts ex rel. Johnson v. Galen of
Virginia, Inc., 325 F.3d 776, 786 (6th Cir. 2003).1 Yet while actual knowledge is
required, “any hospital employee or agent that has knowledge of a patient’s emergency
medical condition might potentially subject the hospital to liability under EMTALA.”
Id. at 788.

Howard was admitted to the hospital so that the hospital physicians could
conduct further tests, including an MRI, a lumbar puncture and a psychiatric evaluation.
On the first day of testing, Dr. Silverman’s note that “an acute psychotic episode [must]
be ruled out” indicated both the possible seriousness of Howard’s condition and the need
for further testing before a complete diagnosis could be made. (J.A. at 153, 158.) Dr.
Lessem diagnosed Howard on December 17, 2002 as having “atypical psychosis,”
determined that Howard should be transferred to 4 East, and instructed 4 East doctors
to take “suicide precautions.” (J.A. at 173.) A legitimate possibility that the patient
might commit suicide would appear to “place the health of the individual . . . in serious
jeopardy,” and could thus fall under the category of “emergency medical condition.” See
§ 1395dd(e)(1)(A)(i). It is noteworthy that Dr. Lessem recommended Howard be
transferred to 4 East, the unit for patients “who are acutely mentally ill.” (J.A. at 160.)
This evidence supports Plaintiff’s claim that the hospital physicians believed Howard
had an emergency medical condition upon his admission.

B. Howard’s Condition Upon Discharge

Defendants argue further that, to the extent that Howard had an emergency
medical condition at the time of his admission, the hospital physicians no longer believed
that he had such a condition when they released him–i.e., that he was stable upon

1
To the extent Plaintiff argues that the hospital’s physicians were negligent in failing to recognize
that Howard had an emergency medical condition, such an allegation is reserved for state malpractice law.
See, e.g., Bryant v. Adventist Health Sys., 289 F.3d 1162, 1166 (9th Cir. 2002).
No. 07-2111 Moses v. Providence Hospital and Medical Ctrs., et al. Page 18

discharge. In Cleland, this Court, in affirming summary judgment for the defendant,
explained why it was clear that the responsible doctors reasonably believed the patient
had been stable upon discharge:

To all appearances, the plaintiff’s condition was stable. He was not in
acute distress, neither the doctors nor the patient or his parents made the
slightest indication that the condition was worsening in any way, or that
it presented any risk that might become life-threatening, or that it would
worsen markedly by the next day.
917 F.2d at 271.

Plaintiff has introduced evidence that challenges whether any of these signs of
stability noted in Cleland existed with respect to Howard. First, the “final diagnosis”
of Howard upon discharge of an “atypical psychosis [with] delusional disorder” was
substantially the same as Dr. Lessem’s diagnosis on December 17, 2002, which included
“atypical psychosis.” (J.A. at 169, 178.) Moreover, Dr. Bursztajn’s report concludes
that “the symptoms and mental state described by Dr. Lessem could not be resolved in
one to two days, yet the decision to discharge Mr. Howard was made one day later.”
(J.A. at 68-69.) The doctors were aware on the day they released Howard that Howard’s
wife did not think he had improved, and in fact still “fear[ed] him.” (J.A. at 219.)
Finally, Dr. Lessem’s note dated December 17, 2002, in which he writes “will accept
[Howard] to 4 east if [Howard]’s insurance will accept criteria” (J.A. at 172), creates at
the very least a credibility issue with respect to whether the hospital physicians actually
believed that no emergency condition existed upon Howard’s release.

To support their argument, Defendants cite Dr. Mitchell’s progress note dated
December 18, 2002, which states, “[Howard’s] affect is brighter. No physical symptoms
now. [He] wishes to go home, wife fears him. Denies any suicidality.” (J.A. at 219.)
Defendants also cite Dr. Mitchell’s progress report dated December 19, 2002 stating that
Howard “cannot stay as he is medically stable and now does not need 4 [East].” (J.A.
at 89.) First, these notes do not refute Plaintiff’s evidence that Dr. Lessem believed
Howard was still unstable at the time of his release. But more importantly, while these
notes may arguably provide a basis for a jury to find for Defendants, for the reasons
No. 07-2111 Moses v. Providence Hospital and Medical Ctrs., et al. Page 19

discussed, Plaintiff’s evidence still raises a dispute of fact with respect to whether
Howard had an emergency condition on the day of his release, and what the hospital’s
doctors believed when they released him.

Because issues of fact exist relating to Howard’s medical condition–upon his
initial screening as well as prior to his release–the district court erred in granting
summary judgment on this ground.

VI. Plaintiff’s EMTALA Claim Against Dr. Lessem

Plaintiff has brought suit against both the hospital and Dr. Lessem. EMTALA’s
provision authorizing private suits expressly allows claims “against the participating
hospital,” but does not refer to claims against individuals. 42 U.S.C. § 1395dd(d)(2)(A).
Although the question of whether EMTALA allows a private right of action against an
individual physician is one of first impression for this Court, other circuits to have
considered the issue have held or opined that EMTALA does not authorize an action
against an individual physician. See Baber v. Hosp. Corp. of Am., 977 F.2d 872, 877-78
(4th Cir. 1992); King v. Ahrens, 16 F.3d 265, 271 (8th Cir. 1994); Eberhardt v. City of
L.A., 62 F.3d 1253, 1256-57 (9th Cir. 1995); Delaney v. Cade, 986 F.2d 387, 393-94
(10th Cir. 1993); Gatewood v. Wash. Healthcare Corp., 933 F.2d 1037, 1040 n.1 (D.C.
Cir. 1991) (dicta).

We agree with our sister circuits that EMTALA does not authorize a private right
of action against individuals. “The question of the existence of a statutory cause of
action is, of course, one of statutory construction.” Touche Ross & Co. v. Redington,
442 U.S. 560, 568 (1979). It is possible that Congress meant to include individual
physicians in the civil enforcement provision and simply neglected to do so; however,
in comparing the civil enforcement provision with the government enforcement
provision that precedes it, the omission of any reference to physicians in the civil
enforcement provision appears intentional. The government enforcement provision
authorizes the Department of Health and Human Services to commence its own actions
against violators of EMTALA. 42 U.S.C. § 1395dd(d)(1). Unlike the civil enforcement
provision, the provision authorizing government enforcement expressly states that “any
No. 07-2111 Moses v. Providence Hospital and Medical Ctrs., et al. Page 20

physician who is responsible for the examination, treatment, or transfer of an individual
in a participating hospital, including a physician on-call for the care of such an
individual, and who negligently violates a requirement of this section . . . is subject to
a civil penalty” and exclusion from further participation in government programs.
§ 1395dd(d)(1)(B). As previously discussed, “where Congress includes particular
language in one section of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” Russello, 464 U.S. at 23. Congress clearly knew how to make
individuals responsible under the statute, because it did so in the provision subjecting
violators to federal enforcement. Given the contrast in these two consecutive
subsections of the statute, Congress’ omission of any reference to individuals in the civil
enforcement provision must have been intentional.

Moreover, to the extent that the absence of such a reference arguably causes
ambiguity with respect to this issue, the legislative history reveals an intent to preclude
private suits against individuals. According to the report of the House Judiciary
Committee, the committee recommended amendments changing the civil enforcement
provision to its current form in order to “clarif[y] that actions for damages may be
brought only against the hospital which has violated the requirements of [the statute].”
H.R. Rep. No. 99-241, pt. 1, at 132, reprinted in 1986 U.S.C.C.A.N. 579, 728. No other
statement from Congress suggests any alternative reading of the provision. Because the
statute contains no language plainly at odds with this stated purpose, we view the
Judiciary Committee’s report as further support for our conclusion that private plaintiffs
may not sue individuals under EMTALA.

Thus, the district court’s grant of summary judgment dismissing Plaintiff’s claim
against Dr. Lessem pursuant to EMTALA is affirmed.
No. 07-2111 Moses v. Providence Hospital and Medical Ctrs., et al. Page 21

CONCLUSION

For the reasons set forth above, with respect to Plaintiff’s claims against the
hospital, the judgment of the district court is REVERSED and REMANDED for further
proceedings consistent with this opinion. With respect to Plaintiff’s claim against Dr.
Lessem pursuant to EMTALA, the district court’s order granting summary judgment is
AFFIRMED.