Arrington v. Wong

FERNANDEZ, Circuit Judge,

Dissenting:

As the majority indicates, the Estate of Harold E. Arrington and a number of family members (collectively “the Estate”) brought this action against the Queen’s Medical Center, Dr. Norbert Wong, the City and County of Honolulu, Clarence Uyema, and Jerry Ho. The district court dismissed the portion of the action against Queen’s which was based on the Emergency Medical Treatment and Active Labor Act (EMTALA). See 42 U.S.C. § 1395dd. It held that the Act did not apply. It then dismissed the remaining supplemental state claims. See 28 U.S.C. § 1367(c).

If Queen’s violated the substantive provisions of EMTALA, any person harmed thereby could sue it for damages for personal injuries. See 42 U.S.C. § 1395dd(d)(2)(A).1 Our task, therefore, is *1075to decide whether Queen’s did violate EM-TALA’s requirement that “if any individual ... comes to the emergency department and a request is made on the individual’s behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospital’s emergency department.... ” 42 U.S.C. § 1395dd(a). More specifically, we must decide if Arrington did come to the hospital. In my opinion, it is plain that he did not.

Congress could have used many different locutions and drawn many different lines when it enacted EMTALA. It could have, for example, said that a hospital could be liable when a request for services was made and somebody was willing and able to bring the person in distress to the hospital. It could have declared that if the person making the request was operating an ambulance heading toward the hospital, the hospital must accept the patient. Congress did not do so. Rather, it said that in addition to a request for services, the person must come to the hospital’s emergency department. The plain meaning of that requirement is that a person must be at the hospital physically. It will not do for him to be in contact through electronic connection, or for him or someone else to hold a hope that he can get there. It surely does not mean “move toward;” it clearly means to arrive at the place in question.2

As the Supreme Court recently reiterated: “ ‘[a]s in any case of statutory construction, our analysis begins with the language of the statute.... And where the statutory language provides a clear answer, it ends there as well.’” Harris Trust & Savings Bank v. Salomon Smith Barney Inc., 530 U.S. 238, 120 S.Ct. 2180, 2191, 147 L.Ed.2d 187, (2000) (citation omitted); see also Pavelic & LeFlore v. Marvel Entm’t Group, 493 U.S. 120, 123, 110 S.Ct. 456, 458, 107 L.Ed.2d 438 (1989). Certainly that is entirely true when we do not encounter some “ ‘rare and exceptional circumstance’” that would, for example, make the plain reading absurd or demonstratively at odds with the statute’s purpose. Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981) (citation omitted). We have held the same. See Oregon Natural Res. Council, Inc. v. Kantor, 99 F.3d 334, 339 (9th Cir.1996); Tang v. Reno, 77 F.3d 1194, 1196-97 (9th Cir.1996); Farr v. United States, 990 F.2d 451, 455 (9th Cir.1993). The statute at hand is just that plain. In fact, if a request without actual arrival is enough, the “comes to” language is read out of the statute for all practical purposes.3 That, itself, violates the “ ‘elementary canon of construction that a statute should be interpreted so as not to render one part inoperative.’ ” Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 249, 105 S.Ct. 2587, 2594, 86 L.Ed.2d 168 (1985) (citation omitted). In other words, the plain reading of the “comes to” provision is neither absurd nor demonstratively at odds with the purpose of the statute, which is to prevent the dumping of patients who arrive at the hospital. Again, had Congress wished to do so, it could have drawn the line at some point other than the time when a person comes to an emergency department.

In so stating, I follow the circuits that have spoken to the issue already. See Miller v. Med. Ctr. of Southwest Louisiana, 22 F.3d 626, 627-30 (5th Cir.1994) (a *1076rejected request to transfer an emergency patient to a hospital did not violate EMTA-LA because the patient never arrived there); cf. Johnson v. Univ. of Chicago Hosps., 982 F.2d 280, 233 & n. 7 (7th Cir.1992) (where a patient never came to the hospital for medical assistance, she never crossed the threshold of liability, but an ambulance was not in touch with the emergency department). Other courts which have not specifically decided the issue have nevertheless read the language to mean that the patient has entered or arrived at the hospital itself. See Bryan v. Rectors & Visitors of Univ. of Virginia, 95 F.3d 349, 351 (4th Cir.1996); Correa v. Hosp. San Francisco, 69 F.3d 1184, 1192 (1st Cir.1995); Green v. Touro Infirmary, 992 F.2d 537, 539 (5th Cir.1993); Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266, 269 (6th Cir.1990).

The Estate argues that two courts have, indeed, expanded the “comes to” language. I disagree. In both of those cases, the courts were focusing on the treatment portion of the statute. See 42 U.S.C. § 1395dd(b). That section prevents the dumping of an emergency patient, who has already come to the hospital, but who may not be in the emergency room itself. See Thornton v. Southwest Detroit Hosp., 895 F.2d 1131, 1135 (6th Cir.1990); McIntyre v. Schick, 795 F.Supp. 777, 780-81 (E.D.Va.1992); see also Lopez-Soto v. Hawayek, 175 F.3d 170, 174 (1st Cir.1999). In neither of those cases was the court required to concern itself about whether the patient was at the hospital; she was.

The final string to the Estate’s bow is a regulation issued by the Department of Health and Human Services, which rather than adding clarity adds an ambiguity. The regulation first states that a person has “come to” an emergency department if he is on hospital property, including an ambulance “owned and operated by the hospital.” 42 C.F.R. § 489.24(b). It goes on to say that a person in a “nonhospital-owned” ambulance has not come to the emergency department “even if a member of the ambulance staff contacts the hospital by telephone or telemetry communications and informs the hospital that they want to transport the individual to the hospital for examination and treatment.” Id. So far so good — at least a coming to hospital property of some kind is clearly required.4 But the regulation then adds “[i]n these situations, the hospital may deny access if it is in ‘diversionary status,’ that is, it does not have the staff or facilities to accept any additional emergency patients.” Id.5 The Estate reads this latter sentence to mean that in all other instances the hospital is forbidden to deny access. Therein lies the ambiguity, but I do not read the regulation the way the Estate does. Rather, I read it to set forth an instance when the hospital may deny access, without attempting to indicate that the hospital may deny access in that situation only.

At any rate, if the regulation does constitute an attempt to make a mere request for services unaccompanied by an actual arrival at the hospital sufficient to bring the hospital within the strictures of EM-TALA, I would find the regulation itself to be invalid. Where, as here, the intent of Congress is clear “that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-843, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984); see also Lujanr-Armendariz v. INS, 222 F.3d 728, 749 (9th Cir.2000). Of course, in that respect, “[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.” Id. at 843 n. 9, 104 S.Ct. at 2781 n. 9. So it is here. The agency simply does not have *1077the authority to extend the statute beyond the plain limits set by Congress. Nor does this court, by the way.

Congress does not always express itself with great lucidity. But there is nothing lutaceous about the language that we are called upon to construe here. It takes no great conning of the phrase “comes to” as used in this statute to discover that it means to physically arrive at the hospital. That being so, the Estate has no cause of action under EMTALA because Harold Arrington never did come to Queen’s. If the Estate is to recover damages for what it sees as improper conduct, it must seek those in state court based upon state causes of action.6

Therefore, I respectfully dissent.

. Only a hospital is subject to an action under EMTALA; no other person or entity is. See *1075Eberhardt v. City of Los Angeles, 62 F.3d 1253, 1256-57 (9th Cir.1995).

. For example, if we say that someone has "come home,” we mean that he has arrived. We do not mean that he is on the way; to express that, we would say that he is "coming home.” If we say come to court at 9:00 a.m., we mean "be here,” we do not mean "be in route.”

. At the very least, a plain statutory command becomes subject to an endless series of amendments, each created by well-meaning judges (or regulators) who seek to solve a problem that Congress did not. That ad hoc and serial amending process then creates a quagmire of uncertainty for hundreds of hospitals, and those who run them.

. For purposes of this case, I assume, without deciding, that being somewhere on hospital property is a sufficient coming to the emergency department.

. If the ambulance, nevertheless, brings the patient to the hospital, he has come to it and EMTALA applies. Id.

. It was not an abuse of discretion to dismiss the state claims once the only federal claim was dismissed at this early stage of the litigation. See 28 U.S.C. § 1367(c); Fang v. United States, 140 F.3d 1238, 1241 (9th Cir.1998); Executive Software N. Am., Inc. v. United States District Court, 24 F.3d 1545, 1555-56 (9th Cir. 1994).