¶ 59. (concurring). I join the mandate of the majority opinion but write separately to state my disagreement with the conclusion that the Wisconsin Patients Compensation Fund has a duty to provide excess coverage for "medically-based" violations of the federal Emergency Medical Treatment and Active Labor Act (EMTALA), but not "economically-based" violations. The distinction drawn by the'majority opinion was not raised or briefed by the parties, is unsupported by law and is unnecessary for the holding in this case.
¶ 60. The EMTALA claim in this case is, as the majority recognizes, a failure to treat within the definition of medical malpractice used in the majority opinion. See Majority op. at 825. Further, I conclude that the majority should hold, as St. Joseph's Hospital urges, that EMTALA claims are failure to treat claims arising out of the delivery of health care services. EMTALA imposes a legal duty of care on hospitals. Both EMTALA and the common law of medical malpractice establish standards of care, the breach of which gives rise to liability. The Wisconsin legislature intended the Fund to cover claims against hospitals alleging failure to provide appropriate medical treatment, regardless of whether the standard for treatment is set by common law or statute. Accordingly, I see no basis for the distinction made by the *836majority opinion that would condition the Fund's duty to provide excess liability on whether a hospital's decision not to treat was a medical or economic decision.
¶ 61. For the reasons stated, I concur.