[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-10228 June 18, 2004
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 02-80410-CV-KLR
ANNE MARIE NOLEN, individually,
and as natural heir of the
Estate of Baby_B, and Baby_C,
Plaintiff-Appellant,
versus
BOCA RATON COMMUNITY HOSPITAL, INC.,
a Florida corporation,
GEOFFREY ZANN, M.D.,
JOAN REINSVOLD, RN,
SUSAN SLAVICEK,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 18, 2004)
Before CARNES, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Anne Marie Nolen appeals from a summary judgment entered against her.
The district court held that Nolen’s complaint, brought under both the Emergency
Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. section 1395dd,
and Florida law, failed as a matter of law. We affirm; the district court properly
granted summary judgment in favor of the Boca Raton Community Hospital, Inc.
(Hospital).
I. FACTS AND PROCEDURAL HISTORY
Nolen was a pediatric nurse at the Hospital. She was about twenty-two
weeks pregnant with triplets and had insurance coverage. At approximately 5:00
p.m. on May 4, 2000, Nolen arrived at the Hospital for a labor check at the
direction of her physician, Dr. Zann. The Hospital admitted Nolen as an outpatient
about twenty minutes later. She complained of cramping and a mucous discharge
that she feared signaled the onset of labor.
Nolen was first treated by a Hospital nurse, Reinsvold, in the labor and
delivery unit of the Hospital, One Family Place. Reinsvold undertook preliminary
care processes, including the following measures: taking Nolen’s vital signs, taking
Nolen’s medical history, listening to the unborn babies’ hearts, conducting a fetal
monitor, and giving an initial examination of Nolen’s abdomen. Nolen was
attached to a fetal monitor, which detects uterine contractions and uterine
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irritability, for more than an hour. Reinsvold also paged Dr. Zann to see Nolen
shortly after Nolen’s admission to One Family Place.
After the initial assessment performed by Reinsvold, Dr. Zann arrived to
examine Nolen, who was still on outpatient status, about an hour and ten minutes
after she was first registered by the Hospital. Dr. Zann performed a visual exam of
Nolen’s cervix, took a culture of her vagina, and fully evaluated Nolen’s cervix.
Nolen’s cervix was found to be neither dilated nor thinned. The laboratory results
from the culture were negative. Dr. Zann concluded that Nolen’s lower uterine
segment was consistent with what he expected from a normal pregnancy in this
circumstance. Dr. Zann performed an ultrasound to evaluate each of the three fetal
heart rates. He did not order further testing.
Dr. Zann concluded that Nolen was not dilated and that she had only one
conclusive episodic contraction, which occurred at 5:32 p.m. Another potential
episodic contraction occurred at 6:04 p.m., but it was inconclusive because Nolen
was being repositioned when the fetal monitor registered that movement. Satisfied
that Nolen had been adequately diagnosed and stabilized, Dr. Zann discharged her
from the Hospital at 6:48 p.m. He ordered Nolen to keep her scheduled
appointment with her perinatologist, Dr. Scott, the next morning.
After leaving the Hospital, Nolen’s condition changed for the worse. She
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testified at deposition that she began cramping after leaving the Hospital. She
made no effort to contact Dr. Zann or the Hospital after this change in condition.
When she reached Dr. Scott’s office the next morning, Nolen fully described
the events of the previous day. Nolen also told Dr. Scott of the change in condition
she experienced after leaving the Hospital. Dr. Scott examined Nolen and
concluded that she may have been entering pre-term labor on that day because the
partial effacement and dilation of her cervix. Dr. Scott determined that Nolen
could not have been entering pre-term labor on the previous day when she was at
the Hospital in the care of Dr. Zann.
Dr. Scott sent Nolen back to the Hospital to suppress her pre-term labor.
Nolen stayed there until May 7, 2000, when she was transferred to Broward
General Hospital because it had a superior neonatal care unit. Nolen went into pre-
term labor. Her first baby was stillborn, and her other two babies were born alive.
Neither of her two live births survived past May 24, 2000, however.
Nolen filed a complaint under 42 U.S.C. section 1395dd on May 3, 2002,
and alleged that the Hospital (1) did not provide her with an adequate screening
examination, (2) did not stabilize her labor condition adequately, and (3)
discharged her in violation of the EMTALA. Nolen received leave from the
district court to amend her complaint to include six counts of medical malpractice
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under Florida law. Dr. Zann, Reinsvold, and Slavicek, another nurse from the
Hospital, were added as defendants on those claims. The district court declined to
exercise jurisdiction over all but one of the state-law claims.
Both parties filed cross-motions for summary judgment after the close of
discovery. The district court granted the motions made by the Hospital and the
other defendants on all three counts under the EMTALA and the remaining state
law claim. Nolen does not address the grant of summary judgment by the district
court on her state-law claim in her brief before this Court, so any arguments on that
claim are waived. Farrow v. West, 320 F.3d 1235, 1242 (11th Cir. 2003); Kelliher
v. Veneman, 313 F.3d 1270, 1274 n.3 (11th Cir. 2002); Greenbriar, Ltd. v. City of
Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).
II. STANDARD OF REVIEW
Summary judgment is only appropriate 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); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2510 (1986) (quoting
Fed. R. Civ. P. 56(c)). Summary judgment should be granted when, after an
adequate time for discovery, a party fails to make a showing sufficient to establish
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the existence of an essential element of that party’s case. Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986). “We review the district court’s
rulings on motion for summary judgment de novo, applying the same legal
standards that bound the district court.” Carter v. Galloway, 352 F.3d 1346, 1348
(11th Cir. 2003).
III. ANALYSIS
Nolen asserts two grounds on which the district court erred in holding that
the Hospital gave her an appropriate screening when she entered as an outpatient
on May 4, 2000. First, she contends that the Hospital did not have a standard
written screening procedure or, alternatively, that the Hospital did not follow its
screening procedure, either of which, she contends, violated the EMTALA.
Second, Nolen argues that the district court should not have considered the
evidence submitted by the Hospital that proved Nolen was not, in fact, in pre-term
labor when she was examined at the Hospital on May 4, 2000, by her personal
physician, Dr. Zann. Each of these arguments is addressed and rejected below.
As we have previously stated,
In 1986, Congress enacted EMTALA in response to widely
publicized reports of emergency care providers transferring indigent
patients from one hospital to the next while the patients’ emergency
medical conditions worsened. EMTALA was designed specifically to
address this important societal concern; it was not intended to be a
federal malpractice statute. Under EMTALA, hospital emergency
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rooms are subject to two principal obligations, commonly referred to
as the appropriate medical screening requirement and the stabilization
requirement. ... The appropriate medical screening requirement
obligates hospital emergency rooms to provide an appropriate medical
screening to any individual seeking treatment in order to determine
whether the individual has an emergency medical condition. ... If an
emergency medical condition exists, the hospital is required to
provide stabilization treatment before transferring the individual.
Harry v. Marchant, 291 F.3d 767, 770 (11th Cir. 2002) (en banc).
First, we address Nolen’s contention that the Hospital was required to have a
written screening procedure. A similar argument was rejected by the Eighth
Circuit. Summers v. Baptist Med. Center Arkadelphia, 91 F.3d 1132, 1140 (8th
Cir. 1996) (en banc). The Eighth Circuit held that a hospital with emergency
screening procedures that were unwritten, in whole or in part, did not violate the
EMTALA. Id. (stating that “the hospital did have a screening procedure, even if
unwritten in part, and the statute makes no additional requirement”). Nolen’s
argument that the Hospital was required to have a written screening procedure also
fails because a written procedure is not required by the terms of section 1395dd(a).
Nolen alternatively contends that the Hospital did not follow its policies for
screening patients in pre-term labor situations. Nolen relies on several policies
propagated by the Hospital to create doubt about the quality of screening she
received. As long as the Hospital screened Nolen in a manner consistent with the
screening that any other patient in the care of a private physician would have
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received, there can be no liability under the EMTALA. The Hospital presented
undisputed evidence that Reinsvold performed exactly the type of screening that
would have been given to any other outpatient in Nolen’s position according to the
only policy that applied to Nolen’s case. Because the Hospital met its initial
burden of disproving the applicability of the EMTALA, the burden shifts back to
Nolen to show the existence of a genuine issue of material fact. Hammer v. Slater,
20 F.3d 1137, 1141 (11th Cir. 1994). Nolen did not meet that burden.
The undisputed record shows that Nolen, if anything, received superior care
from the Hospital. Reinsvold promptly summoned Dr. Zann to perform an in-
person exam of Nolen, which only 6 percent of similarly situated patients receive.
The uncontroverted evidence showed that 94 percent of other patients who came to
the Hospital for a labor check did not receive as extensive a screening as the one
Nolen received. As the Fourth Circuit has explained, a hospital has every right to
tailor its screening procedures to a patient to account for her condition, stated
symptoms, and the determinations made by her personal physician. Baber v. Hosp.
Corp. of Am., 977 F.2d 872, 879 n.6 (4th Cir. 1992); see also Baker v. Adventist
Health, Inc., 260 F.3d 987, 995 (9th Cir. 2001) (“Hospitals are not required to
provide patients presenting different symptoms with identical screenings.”).
Nolen’s treatment was provided primarily by her private physician, who was in a
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better position to provide care beyond the screening mandated by the EMTALA.
So long as the Hospital gave to Nolen the same quality screening that it would
have given a similarly situated outpatient, there is no violation of the EMTALA.
Harry, 291 F.3d at 770.
Second, we turn to Nolen’s argument that the district court impermissibly
weighed evidence and usurped the function of a jury. We disagree. The Hospital
proffered evidence from experts and the principals that confirmed that Nolen
received an adequate screening. It was Nolen’s responsibility then to present
evidence of a genuine issue of material fact, which would have precluded summary
judgment. Celotex, 477 U.S. at 322-24, 106 S. Ct. at 2552-54. Nolen did not
satisfy that burden, and the district court properly granted summary judgment.
Baber is also instructive on this point. The Fourth Circuit held in Baber that
one cursory affidavit from a physician was insufficient to create a genuine issue of
material fact as to the adequacy of the screening that the patient received. 977 F.2d
at 881-82. Nolen has failed to present even a single affidavit of a physician to
dispute the adequacy of the screening provided by the Hospital.
Accordingly, the summary judgment entered by the district court is
AFFIRMED.
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