United States Court of Appeals,
Fifth Circuit.
No. 97-30592
Summary Calendar.
Shirley MARSHALL, Individually and on behalf of Nydia MARSHALL,
Plaintiff-Appellant,
v.
EAST CARROLL PARISH HOSPITAL SERVICE DISTRICT, doing business as
East Carroll Parish Hospital, Defendant-Appellee.
Feb. 9, 1998.
Appeal from the United States District Court for the Western
District of Louisiana.
Before WIENER, BARKSDALE and EMILIO M. GARZA, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Simply put, this appeal concerns the effect to be given an
affidavit filed in opposition to a motion for summary judgment.
Shirley Marshall, individually and on behalf of her minor daughter,
Nydia Marshall, contests the summary judgment granted East Carroll
Parish Hospital Service District (the Hospital), dismissing her
action, brought under the Emergency Medical Treatment and Active
Labor Act (EMTALA), 42 U.S.C. § 1395dd. We AFFIRM.
I.
Fifteen-year-old Nydia Marshall was brought by ambulance to
the Hospital's emergency room on 18 October 1994, because she
"wouldn't move" while at school after the bell rang. Upon her
arrival, Hospital personnel took her history and vital signs. She
was unable to verbally communicate while at the emergency room, but
cooperated when removing her clothing and watched movement of
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persons coming in and out of the emergency room. She was examined
by Dr. Marc Horowitz, who also had several medical tests performed
on her.
Dr. Horowitz diagnosed Nydia Marshall as having a respiratory
infection and discharged her. He informed Shirley Marshall that
her daughter's failure to communicate was of unknown etiology, and
advised her to continue administering the medications which had
been prescribed by the family doctor on the previous day and to
return to the emergency room if the condition deteriorated. The
complaint alleged that, later that same day, Nydia Marshall's
symptoms continued to worsen, and she was taken to the emergency
room at a different hospital, where she was diagnosed as suffering
from a cerebrovascular accident consistent with a left middle
cerebral artery infarction.
This action claimed that the Hospital violated EMTALA by
failing to provide Nydia Marshall with an appropriate medical
screening examination and failing to stabilize her condition prior
to discharge. The Hospital moved for summary judgment and
submitted supporting affidavits from Dr. Horowitz and a registered
nurse who had participated in Nydia Marshall's treatment in the
Hospital's emergency room.
The district court allowed Marshall three months in which to
conduct discovery necessary to respond to the motion. In
opposition to that motion, Marshall submitted a statement of
contested facts and the sworn affidavit of Lena Middlebrooks, a
licensed practical nurse, who had been on duty at the Hospital
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emergency room when Nydia Marshall was treated.
The district court granted summary judgment for the Hospital
on the ground that no material fact issues were in dispute.
II.
Marshall contends that Middlebrooks' affidavit created a
genuine issue of material fact. Of course, we review a grant of
summary judgment de novo. E.g., Green v. Touro Infirmary, 992 F.2d
537, 538 (5th Cir.1993).
Summary judgment "shall be rendered forthwith 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 moving party
is entitled to a judgment as a matter of law." FED. R. CIV. P.
56(c); e.g., Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir.1994) (en banc). Along this line, the evidence, and the
inferences to be drawn from it, are viewed in the light most
favorable to the non-movant. E.g., LeJeune v. Shell Oil Co., 950
F.2d 267, 268 (5th Cir.1992). And, if the movant meets the initial
burden of showing that there is no material fact issue, the burden
shifts to the non-movant to produce evidence or set forth specific
facts showing the existence of a genuine issue for trial. FED. R.
CIV. P. 56(e); e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 324,
106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
The Act provides in relevant part:
In the case of a hospital that has a hospital emergency
department, 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
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hospital must provide for an appropriate medical screening
examination within the capability of the hospital's emergency
department, including ancillary services routinely available
to the emergency department, to determine whether or not an
emergency medical condition ... exists.
42 U.S.C. § 1395dd(a) (emphasis added). The Act defines an
"emergency medical condition", in pertinent part, as
(A) 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—
(i) placing the health of the individual (or, with
respect to a pregnant woman, the health of the woman or
her unborn child) in serious jeopardy,
(ii) serious impairment to bodily functions, or
(iii) serious dysfunction of any bodily organ or
part....
42 U.S.C. § 1395dd(e)(1). And, if the hospital determines that the
individual has an "emergency medical condition", then
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....
42 U.S.C. § 1395dd(b)(1).
Marshall contends that Middlebrooks' affidavit demonstrates
that Hospital personnel knew that Nydia Marshall had an emergency
medical condition and were very concerned about the cursory
examination provided by Dr. Horowitz; that Dr. Horowitz should
have performed a fundoscopic examination, cranial nerve testing,
motor strength testing, and deep tendon reflex testing; and that
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Nydia Marshall should have been admitted to the Hospital for
observation of her unexplained altered mental status. In essence,
Marshall is contending that Dr. Horowitz committed malpractice in
failing to accurately diagnose an emergency medical condition.
We agree with the other courts which have interpreted EMTALA
that the statute was not intended to be used as a federal
malpractice statute, but instead was enacted to prevent "patient
dumping", which is the practice of refusing to treat patients who
are unable to pay. See 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, --- U.S. ----, 116 S.Ct. 1423, 134 L.Ed.2d 547 (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).
Accordingly, an EMTALA "appropriate medical screening
examination" is not judged by its proficiency in accurately
diagnosing the patient's illness, but rather by whether it was
performed equitably in comparison to other patients with similar
symptoms. See Summers, 91 F.3d at 1138; Vickers, 78 F.3d at 143;
Correa, 69 F.3d at 1192-93; Repp v. Anadarko Mun. Hosp., 43 F.3d
519, 522 (10th Cir.1994); Holcomb, 30 F.3d at 117. If the
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Hospital provided an appropriate medical screening examination, it
is not liable under EMTALA even if the physician who performed the
examination made a misdiagnosis that could subject him and his
employer to liability in a medical malpractice action brought under
state law. See Eberhardt, 62 F.3d at 1258 ("The hospital's failure
to detect the decedent's alleged suicidal tendency may be
actionable under state medical malpractice law, but not under the
EMTALA."); Baber v. Hospital Corp. of America, 977 F.2d 872, 879-
80 (4th Cir.1992) ("Questions regarding whether a physician or
other hospital personnel failed properly to diagnose or treat a
patient's condition are best resolved under existing and developing
state negligence and medical malpractice theories of recovery.");
Gatewood, 933 F.2d at 1039 ("In the absence of any allegation that
the [hospital] departed from its standard emergency room procedures
in treating [patient], questions related to [patient's] diagnosis
remain the exclusive province of local negligence and malpractice
law."). Therefore, a treating physician's failure to appreciate
the extent of the patient's injury or illness, as well as a
subsequent failure to order an additional diagnostic procedure, may
constitute negligence or malpractice, but cannot support an EMTALA
claim for inappropriate screening. See Summers, 91 F.3d at 1138-39
(" "faulty' screening ... does not come within EMTALA"); Vickers,
78 F.3d at 143-44 (citation omitted) (EMTALA "does not impose any
duty on a hospital requiring that the screening result in a correct
diagnosis").
In order to avoid summary judgment, Marshall was required to
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present evidence showing a material fact issue as to whether the
Hospital provided an EMTALA appropriate medical screening
examination. But, an "appropriate medical screening examination"
is not defined by EMTALA. Most of the courts that have interpreted
the phrase have defined it as a screening examination that the
hospital would have offered to any other patient in a similar
condition with similar symptoms. See Summers, 91 F.3d at 1138 ("An
inappropriate screening examination is one that has a disparate
impact on the plaintiff"); Vickers, 78 F.3d at 144 (emphasis in
original) ("EMTALA is implicated only when individuals who are
perceived to have the same medical condition receive disparate
treatment"); Correa, 69 F.3d at 1192 ("The essence of this
requirement is that there be some screening procedure, and that it
be administered even-handedly."); Eberhardt, 62 F.3d at 1258
(hospital did not fail to provide "appropriate medical screening
examination" where there was no "evidence to show that the
screening provided ... was not comparable to that provided to other
patients who manifested similar symptoms"); Repp, 43 F.3d at 522
("a hospital violates section 1395dd(a) when it does not follow its
own standard [screening] procedures"); Williams v. Birkeness, 34
F.3d 695, 697 (8th Cir.1994) (plaintiffs must prove that hospital
treated patient "differently from other patients"); Holcomb, 30
F.3d at 117 (EMTALA "only requires a hospital to provide indigent
patients with a medical screening similar to one which they would
provide any other patient"); Baber, 977 F.2d at 878 ("EMTALA only
requires hospitals to apply their standard screening procedure for
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identification of an emergency medical condition uniformly to all
patients"); Gatewood, 933 F.2d at 1041 ("the Act is intended not
to ensure each emergency room patient a correct diagnosis, but
rather to ensure that each is accorded the same level of treatment
regularly provided to patients in similar medical circumstances");
Cleland, 917 F.2d at 268-69 ("we interpret the vague phrase
"appropriate medical screening' to mean a screening that the
hospital would have offered to any paying patient").* It is the
plaintiff's burden to show that the Hospital treated her
differently from other patients; a hospital is not required to
show that it had a uniform screening procedure. Williams v.
Birkeness, 34 F.3d at 697.
The affidavits of Dr. Horowitz and Nurse Green, submitted by
the Hospital as part of its evidence in support of summary
judgment, both state that Nydia Marshall was given an appropriate
medical screening examination that would have been performed on any
*
The Sixth Circuit also requires proof of an improper
motivation on the part of the hospital. See Roberts v. Galen of
Virginia, Inc., 111 F.3d 405, 409 (6th Cir.1997) ("To distinguish
an EMTALA claim from a state law claim for negligence, a plaintiff
must establish something more than a hospital's breach of the
applicable standard of care"; "plaintiff [has] a burden to bring
forth some showing of improper motivation"); Cleland, 917 F.2d at
272 (" "Appropriate' " refers to "the motives with which the
hospital acts"). And, some courts have added the requirement that
the examination be one that is reasonably calculated to identify an
emergency medical condition. See Correa, 69 F.3d at 1192 ("A
hospital fulfills its statutory duty to screen patients in its
emergency room if it provides for a screening examination
reasonably calculated to identify critical medical conditions that
may be afflicting symptomatic patients"); Eberhardt, 62 F.3d at
1257, 1258 (emphasis in original) ("a medical screening examination
is "appropriate' if it is designed to identify acute and severe
symptoms that alert the physician of the need for immediate medical
attention to prevent serious bodily injury").
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other patient and that she was not diagnosed as having an emergency
medical condition. Marshall contends that both of these assertions
were refuted by Middlebrooks' affidavit. In her affidavit,
Middlebrooks stated that she witnessed a disagreement between Nurse
Arrington and Dr. Horowitz over whether Marshall should be admitted
or transferred to another hospital, rather than discharged, and
that, during her 14-year employment at the Hospital, she had seen
several other patients with symptoms similar to Nydia Marshall's,
who had all been admitted for observation and further testing and
treatment.
The Hospital moved to strike portions of Middlebrooks'
affidavit on the grounds that it contained inadmissible hearsay,
conjecture, and speculation and was not made on the basis of her
personal knowledge. The district court granted that motion as to
any information, "if any there be", in the affidavit which did not
comply with FED. R. CIV. P. 56(e) (requiring affidavits to be made
on personal knowledge, to set forth facts which would be admissible
in evidence, and to show affirmatively that affiant is competent to
testify to the matters stated therein). In any event, the court
considered the entire affidavit when ruling on summary judgment.
Considering that Middlebrooks is a licensed practical nurse,
not a doctor, we question whether she is competent to compare the
symptoms and treatment of Nydia Marshall to other patients. See
Power v. Arlington Hosp. Ass'n, 42 F.3d 851, 858 (4th Cir.1994)
(emphasis added) (where hospital offers evidence that "patient was
accorded the same level of treatment that all other patients
9
receive, or that a test or procedure was not given because the
physician did not believe that the test was reasonable or necessary
under the particular circumstances of that patient", plaintiff may
"challenge the medical judgment of the physicians involved through
her own expert medical testimony "); Baber, 977 F.2d at 882
(patient's brother, who was not a doctor, was not qualified to
evaluate whether emergency room doctor's actions constituted a
medical screening examination); id. at 884 (patient's brother's
"testimony is not competent to prove his sister actually had an
emergency medical condition since he is not qualified to diagnose
a serious internal brain injury"). Nevertheless, we, too, will
consider the entire affidavit.
We agree with the district court that the conclusory,
unsupported statements in Middlebrooks' affidavit are insufficient
to create a material fact issue as to whether Nydia Marshall was
denied appropriate medical screening procedures, or the screening
procedures provided her were different from those provided other
patients with similar symptoms. Middlebrooks' affidavit contains
no description or identification of the other patients who
allegedly came to the Hospital's emergency room with symptoms
similar to those of Nydia Marshall, and provides no details of the
kind of treatment those patients were given. It goes without
saying that such conclusory, unsupported assertions are
insufficient to defeat a motion for summary judgment. See, e.g.,
Clark v. America's Favorite Chicken Co., 110 F.3d 295, 297 (5th
Cir.1997) ("Unsupported allegations or affidavit or deposition
10
testimony setting forth ultimate or conclusory facts and
conclusions of law are insufficient to defeat a motion for summary
judgment."); Duffy v. Leading Edge Products, Inc., 44 F.3d 308,
312 (5th Cir.1995) ("conclusory allegations unsupported by concrete
and particular facts will not prevent an award of summary
judgment"); Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1449
(5th Cir.1993) (internal quotation marks and citation omitted)
(summary judgment is appropriate if "nonmoving party rests merely
upon conclusory allegations, improbable inferences, and unsupported
speculation").
As a result, and in the light of the summary judgment record,
because there is no material fact issue as to whether Dr. Horowitz
conducted an appropriate medical screening examination or as to his
determination that Nydia Marshall did not have an emergency medical
condition, the Hospital was entitled to judgment, as a matter of
law, that it did not have a duty under EMTALA to provide further
medical treatment, to stabilize her condition prior to discharge,
or to transfer her to another facility. See 42 U.S.C. §
1395dd(b)(1); see also Summers, 91 F.3d at 1140 (duty to stabilize
does not arise unless hospital has "actual knowledge of the
individual's unstabilized emergency medical condition"); Vickers,
78 F.3d at 145 (EMTALA "does not hold hospitals accountable for
failing to stabilize conditions of which they are not aware, or
even conditions of which they should have been aware"); Eberhardt,
62 F.3d at 1259 ("the hospital's duty to stabilize the patient does
not arise until the hospital first detects an emergency medical
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condition"); Urban, 43 F.3d at 526 ("The statute's stabilization
and transfer requirements do not apply until the hospital
determines the individual has an emergency medical condition.");
Gatewood, 933 F.2d at 1041 (internal quotation marks and citation
omitted) (stabilization and transfer provisions of EMTALA "are
triggered only after a hospital determines that an individual has
an emergency medical condition"); Cleland, 917 F.2d at 271 n. 2
(hospital has no duty under EMTALA to stabilize condition that was
not ascertained in appropriate screening examination).
III.
For the foregoing reasons, the summary judgment is
AFFIRMED.
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