¶ 62. (dissenting). EMTALA is not a federal malpractice statute and is not designed to provide a federal remedy for general malpractice.1 Because the majority concludes otherwise, I dissent.
¶ 63. The legislative history to the act indicates that EMTALA was enacted to prevent" 'patient dumping,' which is the practice of refusing to. treat [emergency care] patients who are unable to pay." Marshall v. East Carroll Parish Hospital Service District, 134 F.3d 319, 322 (5th Cir. 1998); see H.R.Rep. No. 241, 99th Cong., 1st Sess., pt. 1, at 27 (1985). As the Fourth Circuit explained, "[u]nder traditional state tort law, hospitals are under no legal duty to provide this [emergency] care." Brooks v. Maryland General Hospital, 996 F.2d 708, 710 (4th Cir. 1993). EMTALA imposed such a duty, but not one "to guarantee that all patients are property diagnosed, or even to ensure that they receive *837adequate care." Baker v. Hospital Corp. of America, 977 F.2d 872, 880 (4th Cir. 1992).
¶ 64. In direct contrast, this court has concluded that the Patients Compensation Fund "applies only to negligent medical acts or decisions made in the course of rendering professional medical care." McEvoy v. Group Health Coop. of Eau Claire, 213 Wis. 2d 507, 570 N.W.2d 397 (1997); see also Wisconsin Patient's Compensation Fund v. WHCLIP, 200 Wis. 2d 599, 607, 547 N.W.2d 578 (1996); State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 499-500, 261 N.W.2d 434 (1978). As a result, "claims not based on malpractice, such as a bad faith tort action, survive application of [the] chapter" creating the Fund. McEvoy, 213 Wis. 2d at 530.
¶ 65. In light of these cases, I can come to no other conclusion than this: EMTALA covers "patient dumping" but not medical malpractice, and the Fund covers medical malpractice but not "patient dumping." Burks' remaining claim was based on a violation of EMTALA. The court had already dismissed her two medical malpractice claims.
¶ 66. Under our binding precedent combined with the persuasive precedent of other jurisdictions, the Fund is not an "excess liability insurance carrier" for causes of action stemming from an EMTALA violation. Patient's Compensation Fund v. Lutheran Hospital, 223 Wis. 2d 439, 452, 588 N.W.2d 35 (1999). Accordingly, I dissent.
See, e.g., Marshall v. East Carroll Parish Hospital Service District, 134 F.3d 319, 322 (5th Cir. 1998); Summers v. Baptist Med. Center Arkadelphia, 91 F.3d 1132,1136-37 (8th Cir. 1996) (en banc); Vickers v. Nash General Hosp., Inc., 78 F.3d 139, 142 (4th Cir. 1996); Correa v. Hospital San Francisco, 69 F.3d 1184, 1192 (1st Cir. 1995), cert. denied, 517 U.S. 1136 (1996); Eberhardt v. City of Los Angeles, 62 F.3d 1253, 1255, 1258 (9th Cir. 1995); Urban By and Through Urban v. King, 43 F.3d 523, 525 (10th Cir. 1994); Holcomb v. Monahan, 30 F.3d 116, 117 & n. 2 (11th Cir. 1994); Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1038-39 (D.C. Cir. 1991); Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266, 268, 272 (6th Cir. 1990).