concurring in part and dissenting in part.
I agree with the court’s disposition of Mrs. Johnson’s negligence claim. As explained in Part IV of Judge Kennedy’s opinion, the surgical residents could not properly be found to have been ostensible agents of defendant Humana — and absent an agency relationship, the residents’ alleged negligence could not properly be imputed to Humana.
I disagree with the court’s disposition of Mrs. Johnson’s claim under the Emergency Medical Treatment and Active Labor Act. A covered hospital that is acting from an improper motive is prohibited by the Act from discharging a patient such as Mrs. Johnson for transfer to another facility without first having stabilized her medical condition. Stabilization has not been achieved if the transfer is likely to result in material deterioration of the patient’s condition. Like my colleagues on the panel, I believe that there is a genuine issue of fact as to whether Mrs. Johnson was stabilized at the time of her transfer from Humana to the Crestview facility. Unlike my colleagues, I believe that there is also a genuine issue of fact as to whether Humana acted from an improper *414motive. The issue is a material one, under our case law, so it seems to me that summary judgment ought not to have been granted on the statutory claim.
As far as the record discloses, to be sure, Dr. Abou-Jaoude — the physician who issued Mrs. Johnson’s discharge order — was not knowingly influenced by improper financial considerations when he decided that it was appropriate for Mrs. Johnson to be discharged. But as Dr. Abou-Jaoude made clear in his deposition testimony, the discharge decision was not made in a vacuum. Mrs. Johnson was a “high-risk” patient who needed “skilled nursing care,” Dr. Abou-Jaoude testified. He clearly would not have discharged her had he thought she was going to a boarding house, for example. The doctor talked to social worker Nancy Fred “multiple times” about Mrs. Johnson’s discharge plan, and he engaged in “frequent discussions” with Ms. Fred about where Mrs. Johnson was going to go and who was going to take care of her. He specified placement in a skilled nursing care facility, according to his testimony, and he assumed that the social workers would locate a facility with nurses who could take care of the patient. As far as selection of a specific placement was concerned, Dr. Abou-Jaoude testified, “we just left it in the hands of the social workers.... ”
The social workers’ hands may not have been as clean as the doctor’s apparently were. There is evidence from which a jury could infer that Ms. Fred was receiving pressure from Humana’s administration to get Mrs. Johnson discharged, there being no prospect that Humana would ever be paid for taking care of this patient. There is evidence from which a jury could infer that the Crestview facility was not an appropriate placement for Mrs. Johnson. And given the extent to which Dr. Abou-Jaoude relied on Ms. Fred to locate a facility to which Mrs. Johnson could be transferred without any material deterioration in her condition, it seems to me that it would be permissible for a jury to find that rather than letting Mrs. Johnson stay put until an appropriate placement could be found elsewhere, Humana sent Mrs. Johnson to an inappropriate facility because Humana was not being paid. Such a finding would make Humana liable under the Act. Accordingly, I respectfully dissent from affirmance of the summary judgment for Hu-mana on Mrs. Johnson’s statutory claim.