Reynolds v. Mainegeneral Health

United States Court of Appeals
For the First Circuit
____________________

No. 99-2153

CINDY REYNOLDS, INDIVIDUALLY, AND AS
PERSONAL REPRESENTATIVE OF THE ESTATE
OF WILLIAM D. REYNOLDS; TINA MOORE, AS NEXT
FRIEND OF KELLIANN RAE REYNOLDS, A MINOR;
Plaintiffs, Appellants,

v.

MAINEGENERAL HEALTH,
Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]

____________________

Before

Torruella, Chief Judge,

Lipez, Circuit Judge,

and Keeton,* District Judge.

_____________________

Joseph M. Jabar, with whom Daviau, Jabar & Batten and David M.
Glasser were on brief, for appellants.
George C. Schelling, with whom Gross, Minsky, Mogul & Singal, P.A.
was on brief, for appellee.

* Of the District of Massachusetts, sitting by designation.
____________________

July 17, 2000
____________________

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 KEETON, District Judge. This appeal requires us to interpret

the scope of coverage under the Emergency Medical Treatment and Active

Labor Act (EMTALA), 42 U.S.C. § 1395dd, for secondary risks associated

with emergency conditions. After reviewing the record in light of the

statutory scheme, we affirm the district court's summary judgment in

favor of defendant-appellee MaineGeneral Health.

I. The Facts

Because we are reviewing the district court's summary

judgment in favor of defendant-appellee, we recite the facts in the

light most favorable to the plaintiffs-appellants. See Fed. R. Civ. P.

56.

On September 8, 1996, William D. Reynolds was driving a car

that collided head-on with another vehicle. As a result of the

accident, Mr. Reynolds suffered various injuries including several

fractures of bones in his lower right leg and left foot. Mr. Reynolds

was taken immediately by ambulance from the accident scene to the

emergency room of Kennebec Valley Medical Center (now known as the

MaineGeneral Medical Center and referred to throughout this opinion for

convenience as "MaineGeneral" or the "hospital"). After an emergency

room nurse had triaged Mr. Reynolds, he was examined by Dr. Harry

Grimmnitz, the emergency room physician. Dr. Grimmnitz evaluated Mr.

Reynolds, took an oral medical history, and ordered a series of

laboratory tests, x-rays, and an abdominal CT scan. After considering

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this information, Dr. Grimmnitz determined that Mr. Reynolds suffered

from multiple trauma to his lower right leg, including a probable open

fracture of the right tibia and fibula and possible fracture of the

left foot, and from a possible intra-abdominal injury.

Dr. Grimmnitz then requested consultations from Dr. Alexander

Wall, a surgeon, and Dr. Anthony Mancini, an orthopedic surgeon. Dr.

Wall reported slight right upper quadrant tenderness with a negative CT

scan of the abdomen. Dr. Mancini examined Mr. Reynolds in the

emergency room and took another oral medical history. Dr. Mancini

determined that the injuries to Mr. Reynolds' lower extremities

required surgery. Mr. Reynolds was transferred to the operating room

where Dr. Mancini performed a closed reduction and intramedullary

rodding of the right tibia fracture and a closed reduction and

percutaneous pinning of the left second, third, and fourth metatarsal

neck and head fractures. Following surgery, Mr. Reynolds was admitted

to the hospital floor, where the hospital staff monitored his condition

and he began receiving physical therapy.

On September 13, 1996, Mr. Reynolds was returned to the

operating room for closure of his right lower leg wound. On September

14, 1996, he was discharged from the hospital. On September 19, 1996,

he died of a massive pulmonary embolism that emanated from deep veinous

thrombosis ("DVT") at the fracture site on his right leg.

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 Plaintiffs proffered the affidavit of Mr. Reynolds' mother-

in-law, Shirley Kimball, who was in the emergency room at MaineGeneral

after the accident but before Mr. Reynolds had surgery. Ms. Kimball

states that she saw a man in a white lab coat ask Mr. Reynolds if he

had any allergies or medical problems of which the hospital should be

aware. Ms. Kimball alleges that Mr. Reynolds told the man "that his

family had a blood clotting problem on his father's and brothers' side

of the family whenever they had a trauma." Appendix to Appellants'

Brief at 130.

Plaintiffs proffered the affidavits of several family

members, each of whom alleges that he or she told a MaineGeneral

employee in the hospital room after Mr. Reynolds underwent surgery that

Mr. Reynolds had a family history of hypercoagulability.

II. Procedural Background

On September 8, 1998, plaintiff-appellant Cindy Reynolds,

widow of the decedent William D. Reynolds, filed a complaint in the

United States District Court for the District of Maine in her personal

capacity and as the personal representative of the Estate of the

decedent. Mr. Reynolds' minor daughter, Kelliann Reynolds, is also a

plaintiff-appellant. The complaint alleged that Mr. Reynolds presented

to the emergency department at MaineGeneral on September 8, 1996, with

an emergency medical condition as defined by EMTALA, 42 U.S.C. §

1395dd(e)(1); that MaineGeneral failed to screen Mr. Reynolds

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appropriately for DVT, as required under 42 U.S.C. § 1395dd(a); and

that MaineGeneral failed to stabilize Mr. Reynolds for DVT before

releasing him on September 14, 1996, thus violating the requirements of

42 U.S.C § 1395dd(b).

In a memorandum of decision dated September 8, 1999,

Magistrate Judge Beaulieu granted defendant-appellee's motion for

summary judgment, having concluded that the facts did not support a

federal claim for failure to screen under EMTALA even though they

supported a state-law claim for negligent diagnosis and treatment.

Magistrate Judge Beaulieu further held that plaintiffs' claim for

failure to stabilize fails as a matter of law because the hospital was

not aware that Mr. Reynolds was suffering from DVT. Plaintiffs filed

their notice of appeal to this court on October 6, 1999.

III. Merits of the Appeal

A. Screening Claim

At issue in this case is the precise scope of a participating

hospital's duty to screen for risks or related conditions associated

with or aggravated by an emergency medical condition. In this

instance, MaineGeneral does not dispute that William Reynolds suffered

from an emergency medical condition at the time he arrived in the

emergency room. The parties agree that the injuries to Mr. Reynolds'

lower extremities constituted an emergency medical condition requiring

appropriate screening and stabilization before discharge or transfer.

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In dispute is the answer to the following question: Does the increased

risk of DVT associated with this type of injury, combined with Mr.

Reynolds' family history of hypercoagulability, trigger a duty to

screen for DVT?

Appellants argue that the risk of DVT constituted a discrete

"emergency medical condition," which required screening and

stabilization under EMTALA, just as the fractures of the lower

extremities required screening and stabilization. Appellee contends

that the increased risk of DVT was not an "emergency medical condition"

within the meaning of EMTALA and did not require particularized

screening or stabilization. Appellee argues generally that risks and

conditions associated with or following from emergency medical

conditions that do not constitute independent "emergency medical

conditions" within the meaning of EMTALA will not fall within the

requirements of EMTALA. In evaluating these arguments, we consider

three analytically separable propositions.

First. Appellants' first argument is premised on a meaning

of "symptom" that we cannot accept. Appellants argue that summary

judgment was not appropriate because Mr. Reynolds was exhibiting

symptoms of an emergency medical condition – DVT – when he came to the

emergency room. Appellants contend that this court should interpret

the word "symptom" in EMTALA's definition of "emergency medical

condition" to include any evidence or communication of information that

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an emergency medical condition may exist. Appellants allege first that

injuries to the lower extremities such as those suffered by Mr.

Reynolds create a substantial risk of the development of DVT. They

contend that the knowledge that Mr. Reynolds' injuries indicated a risk

of DVT should be construed as a "symptom" under EMTALA, warranting

further screening and stabilization. Appellants argue alternatively

that Mr. Reynolds' alleged statement that he had a family history of

hypercoagulability, combined with the particular injuries, constituted

a "symptom" of an emergency medical condition. The hospital's failure

to screen when confronted with these symptoms of DVT, appellants aver,

violates EMTALA's screening requirement.

Appellants' proposed interpretation of "symptoms" is contrary

to ordinary usage, not supported by statutory text or purpose, and not

supported in caselaw.

EMTALA defines "emergency medical condition" as follows, in

pertinent part:

(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 . . . 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). Appellee argues that information about

family history provided by a patient, without any accompanying

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psychological or physiological symptoms, cannot reasonably be

understood to be an "acute symptom[] of sufficient severity" that is

"manifest[ed]" by a "medical condition."

We need not and do not adopt this more circuitous path of

reasoning instead of the direct inference that the words of the

statute, in their literal context, do not support appellants' proposed

meanings of "symptoms."

Caselaw provides no clear answer to the issue of statutory

interpretation before us.

A patient who communicates that she feels nauseous or dizzy

could be describing a symptom of an emergency medical condition. See

Correa v. Hospital San Francisco, 69 F.3d 1184, 1192 (1st Cir. 1995)

("[N]ausea and dizziness ... might well herald the onset of an

emergency medical condition in the case of a hypertensive diabetic.").

In such a case the condition manifests itself by the dizziness or

nausea, a symptom that is then communicated verbally by the patient.

Information about risk-factors, such as injuries or medical history,

would inform a physician's interpretation of that symptom. Nausea and

dizziness alone do not necessarily indicate that an emergency medical

condition exists but, when coupled with a history of hypertension and

diabetes, as in Correa, may indicate the presence of an emergency

medical condition. Several important differences exist, however,

between the facts of this case and those of Correa. First, the patient

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in Correa was at the time of the examination experiencing physiological

symptoms of a pathological condition, symptoms that were communicated

to the staff of the emergency department. Here, Mr. Reynolds was not

experiencing any physiological symptoms of DVT that he expressed to

anyone at MaineGeneral. Also, the patient in Correa came to the

emergency room complaining of these symptoms and received no screening

or treatment for any condition that she may have had. Here,

Mr. Reynolds was brought to the emergency room with significant trauma

to his lower legs for which he received extensive screening and

treatment. Although appellants ask us to accept as compelling an

analogy between the absence of any screening and treatment in Correa

and the lack of screening and treatment for DVT here, we find this

argument unpersuasive.

Second. Appellants claim that a court (including this court)

should hold in this case that, for purposes of applying EMTALA's

screening requirement, Mr. Reynolds came to the emergency department

twice.

Appellants cite López-Soto v. Hawayek, 175 F.3d 170 (1st Cir.

1999), to support the proposition that the duty to screen does not

arise only at the moment a patient first comes to the emergency room,

but may arise later in the face of new information or changed

circumstances. Appellants materially misread this court's holding in

López-Soto. The circumstances in López-Soto involved a woman who came

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to the hospital to deliver her baby and was admitted to the maternity

ward. Problems developed during delivery and the child was born in

severe respiratory distress and later died after being transferred to

a different hospital. Defendant in López-Soto argued that the infant

did not "[come] to the emergency room" and that the hospital,

therefore, was not under an obligation to stabilize his emergency

medical condition before transferring him to another hospital. In

ruling against defendant, this court determined that subsection (a) and

subsection (b) of 42 U.S.C. § 1395dd are to be read disjunctively. See

id. at 173. That is, the phrase "comes to the emergency room" relates

only to the duty to screen embodied in subsection (a). Subsection (b),

on the other hand, provides that if any individual "comes to a

hospital" and the hospital determines that the individual has an

emergency medical condition, the hospital has a duty to stabilize that

condition. In López-Soto the court concluded that the duty to

stabilize before transfer attaches "as long as an individual enters any

part of the hospital and the hospital determines that an emergency

medical condition exists." Id. at 174 (citation omitted). Because the

court clearly distinguished the requirements imposed by subsection (a),

which are triggered by a patient's coming to the emergency department,

from those imposed by subsections (b) and (c), which are triggered by

a patient's coming to the hospital, appellants' reliance on López-Soto

is misplaced.

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 Appellants try a somewhat different, but related, tack in

arguing that the hospital room should be treated as the functional

equivalent of the emergency department for purposes of this case.

Appellants acknowledge that the need to treat immediately the traumatic

injuries to Mr. Reynolds' lower extremities postponed full screening

for and treatment of DVT until after Mr. Reynolds' traumatic injuries

had been treated. Appellants also note that Mr. Reynolds may not have

had DVT when he first arrived at MaineGeneral, but may have developed

DVT while at the hospital. They propose that because of these

circumstances, the duty to screen should be tolled, in effect, until

after the traumatic injuries had been treated and clotting was more

likely to have begun. Appellants argue that it would be unreasonable

for this court to interpret 42 U.S.C. § 1395dd(a) in a way that

requires Mr. Reynolds to leave the hospital and reenter the emergency

room a second time in order to receive screening and treatment for

potential DVT. Not only does the text of the statute fail to support

appellants' contention, but neither does the purpose of the statute as

manifested by Congress.

As numerous courts have noted, including this one, "EMTALA

is a limited 'anti-dumping' statute, not a federal malpractice

statute." Bryan v. Rectors and Visitors of the Univ. of Va., 95 F.3d

349, 351 (4th Cir. 1996) (citation omitted); see Correa, supra, 69 F.3d

at 1192; Summers v. Baptist Med. Ctr. Arkadelphia, 91 F.3d 1132, 1137

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(8th Cir. 1996) ("So far as we can tell, every court that has

considered EMTALA has disclaimed any notion that it creates a general

federal cause of action for medical malpractice in emergency rooms.");

Urban v. King, 43 F.3d 523, 525 (10th Cir. 1994). Congress enacted

EMTALA in 1996, in the face of "the increasing number of reports that

hospital emergency rooms are refusing to accept or treat patients with

emergency conditions if the patient does not have medical insurance."

H.R. Rep. No. 241(I), 99th Cong., 1st Sess. 27 (1986), reprinted in

1986 U.S.C.C.A.N. 42, 605. EMTALA created a remedy for patients in

certain contexts in which a claim under state medical malpractice law

was not available. Although the exact scope of the rights guaranteed

to patients by EMTALA is still not fully defined, it is clear that at

a minimum Congress manifested an intent that all patients be treated

fairly when they arrive in the emergency department of a participating

hospital and that all patients who need some treatment will get a first

response at minimum and will not simply be turned away. See Baber v.

Hospital Corp. of America, 977 F.2d 872, 880 (4th Cir. 1992) ("The

avowed purpose of EMTALA was not to guarantee that all patients are

properly diagnosed, or even to ensure that they receive adequate care,

but instead to provide an 'adequate first response to a medical crisis'

for all patients and 'send a clear signal to the hospital community .

. . that all Americans, regardless of wealth or status, should know

that a hospital will provide what services it can when they are truly

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in physical distress.'") ( quoting 131 Cong. Rec. S13904 (Oct. 23, 1985)

(statement of Sen. Durenberger)). Appellants' argument that because

Mr. Reynolds was in a hospital room receiving treatment for his

injuries when the risk of DVT became manifest, it would be unreasonable

to deny him the protections of subsection (a) is unpersuasive. The

fact that Mr. Reynolds was in the hospital receiving treatment is a

prima facie showing that the purpose of subsection (a) was satisfied;

any failures of diagnosis or treatment were then remediable under state

medical malpractice law.

Third. Appellants argue that MaineGeneral screened

Mr. Reynolds differently than it did other patients exhibiting similar

symptoms. Appellants contend that a complete medical history, under

MaineGeneral's hospital policy, includes questioning patients

concerning any family history of hypercoagulability. They aver that

because Mr. Reynolds was not asked questions about his family history

of blood-clotting, he received disparate treatment.

Appellants proffered evidence that MaineGeneral's only

written policy regarding the taking of medical histories from patients

required that a "complete history" be taken from all patients.

Appellants proffered expert testimony to support the proposition that

a "complete history" in Mr. Reynolds' context necessarily included

asking questions about any family history of hypercoagulability.

Appellants aver that this expert testimony, in conjunction with the

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absence of any more detailed hospital policies, compels an inference

that MaineGeneral gave disparate treatment to Mr. Reynolds when it did

not ask him questions concerning his family history of

hypercoagulability.

Appellants' argument attempts again to bring a malpractice

standard into the interpretation and application of a statute designed

to complement and not incorporate state malpractice law. To recover

for disparate treatment, appellants must proffer evidence sufficient to

support a finding that Mr. Reynolds received materially different

screening than that provided to others in his condition. It is not

enough to proffer expert testimony as to what treatment should have

been provided to a patient in Mr. Reynolds' condition. Appellants have

not proffered evidence sufficient to support a finding that

Mr. Reynolds received materially different screening than did other

patients in his condition.

Insofar as appellants are continuing to make a general case

for interpreting EMTALA as providing a federal-law remedy for any

inappropriate treatment in a hospital to which a patient in need of

emergency attention is brought, this attempt fails for the reasons

explained above. In Correa, this court recognized appropriate

emergency screening as the EMTALA objective and sketched out the

contours of appropriate screening under EMTALA:

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 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 and provides that level of screening uniformly to
all those who present substantially similar complaints. . .
. The essence of this requirement is that there be some
screening procedure, and that it be administered even-
handedly.

Correa, 69 F.3d at 1192 (emphasis added) (internal citations omitted).

Because we conclude, based on the record before us, that appellants

failed to proffer evidence sufficient to support a finding that Mr.

Reynolds was "symptomatic" for DVT, within the meaning of the statute,

the hospital was not required under the statute to screen for DVT.

B. Stabilization Claim

In addition to their claim for failure to screen Mr. Reynolds

appropriately for DVT, appellants argue that a genuine dispute of

material fact exists as to whether MaineGeneral stabilized Mr. Reynolds

for DVT before releasing him. Appellants argue extensively about the

nature of the stabilization requirements under EMTALA in support of

their contention that Mr. Reynolds was not stabilized before release.

A critical flaw in this claim of appellants under § 1395dd(b)(1),

however, is that appellants have failed to demonstrate that Mr.

Reynolds had an emergency medical condition at the time of his

discharge from MaineGeneral.

As a corollary to the right to be appropriately screened,

EMTALA guarantees patients the right, if an emergency medical condition

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is determined to exist, to have that condition stabilized before

discharge or transfer to another hospital. The statute provides, in

pertinent part:

If any individual . . . comes to a hospital and the hospital
determines that the individual has an emergency medical
condition, 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 in accordance with subsection (c).

42 U.S.C. § 1395dd(b)(1) (emphasis added). This court need not reach

any questions about the nature of stabilization if we determine that

the predicates to stabilization have not been satisfied. Appellants

proffered expert testimony that it was likely that the clot that later

became the pulmonary embolism that caused Mr. Reynolds' death formed

before Mr. Reynolds was discharged from MaineGeneral. Appellants'

expert further testified that a 17 to 30% likelihood existed that Mr.

Reynolds had formed blood clots at the time of his discharge.

Appellants' expert also proffered testimony that some research

indicates a 2% mortality rate in cases of untreated DVT. Evidence of

one expert that it is more likely than not in his opinion that the

blood clot that eventually caused Mr. Reynolds' death had formed by the

time of his discharge, combined with the evidence that 2% of untreated

DVT cases result in death, is not sufficient to support a determination

that Mr. Reynolds had an emergency medical condition at the time of his

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discharge. To invoke subsection (b), appellants must proffer more than

evidence of a possibility of the existence of a blood clot at the time

of Mr. Reynolds' discharge. They must proffer evidence sufficient to

support a finding, reasoned from evidence, that an emergency medical

condition, within the meaning of the statute, was already in existence

at the time of Mr. Reynolds' discharge. Appellants have not proffered

evidence sufficient to support a finding that Mr. Reynolds had an

emergency medical condition at that time, and for this reason have

failed to satisfy a necessary predicate to the duty to stabilize.

Furthermore, as noted by Magistrate Judge Beaulieu,

appellants' case is centered on the asserted fact that MaineGeneral did

not take steps to determine whether Mr. Reynolds was at risk of

developing DVT. It is doubtful that the text of the statute would

support liability under the stabilization provision for a patient who

had DVT, absent evidence sufficient to support a finding that the

hospital knew of his DVT. See Marshall v. East Carroll Parish Hosp.

Serv. Dist., 134 F.3d 319, 325 (5th Cir. 1998); Summers, supra, 91 F.3d

at 1140 (no duty to stabilize unless hospital "has actual knowledge of

the individual's unstabilized emergency medical condition"); Vickers v.

Nash Gen. Hosp., Inc., 78 F.3d 139, 145 (4th Cir. 1996) ("The Act 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."). It appears quite likely that one important respect in

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which EMTALA's requirements are narrower than those imposed by state

law concerns prophylactic care. Subsection (b) requires stabilization

of only those conditions that a participating hospital has determined

to be emergencies. It may be that in exceptional circumstances of

proof of an existing emergency need for immediate stabilization, a

hospital would have a duty of stabilization under EMTALA. We need not

and do not reach that issue, however, since it is not presented by the

record before us in this case.

IV. Conclusion

Because appellants' claims essentially are claims that

MaineGeneral misdiagnosed and negligently treated William Reynolds, we

believe the district court appropriately granted defendant's motion for

summary judgment on plaintiffs' EMTALA claims. For the reasons stated

in this opinion, the judgment of the district court is AFFIRMED.

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