Pauly v. Stanford Hospital

Filing 33

ORDER GRANTING 5 MOTION TO DISMISS. Signed by Judge Jeremy Fogel on 5/11/2011. (jflc2, COURT STAFF) (Filed on 5/11/2011)

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**E-filed 5/11/2011**

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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FAIZA MARIE PAULY,
Plaintiff,

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ORDER1 GRANTING MOTION TO
DISMISS

v.

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Case Number 10-CV-5582-JF (PSG)

[Re: Docket No. 5]
STANFORD HOSPITAL,
Defendants.

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Plaintiff Faiza Pauly (“Pauly”) asserts a single claim for relief pursuant to the Emergency

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Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C. § 1395dd(a). Defendant

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Stanford Hospital (“Stanford”) moves pursuant to Federal Rule of Civil Procedure 12(b)(6) to

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dismiss the complaint for failure to state a claim upon which relief may be granted. Pauly

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opposes the motion. For the reasons discussed below, the motion will be granted, with leave to

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amend.

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This disposition is not designated for publication in the official reports.

Case No. 10-CV-5582-JF (PSG)
ORDER GRANTING MOTION TO DISMISS
(JFEX2)

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I. BACKGROUND
On November 7, 2008, Makenzie Pauly2 “underwent exploratory laparoscopic surgery

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and an appendectomy for abdominal pain at Sutter Memorial Hospital.” (Compl. 3:6-8.) After

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the surgery, Mackenzie began experiencing pain around the site of the incision, and the medical

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staff at Sutter administered pain management medications. (Id. at 3:9-12.) Sutter physicians did

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not believe that they could provide adequate care for Makenzie, and as a result they contacted

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Stanford “to inquire if Makenzie’s case was appropriate for follow up.” (Id. at 3:12-16.)

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Apparently Makenzie’s case was deemed “appropriate,” and she was discharged from Sutter with

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instructions to schedule outpatient care at Stanford. (Id.)

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On November 14, 2008, Pauly took Makenzie to Stanford’s emergency room because

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Makenzie was experiencing “unbearable pain.” The emergency room staff conducted a medical

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screening, initiated pain management procedures, and attempted to determine the cause of the

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pain. (Id. at 3:19-21.) Although Makenzie obtained temporary relief, the emergency room staff

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was unable to diagnose the source of the pain. (Id. at 3:24-28.) Stanford then discharged

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Makenzie, providing her with new pain medications and instructing her to wait until her

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scheduled outpatient clinic appointment in January. (Id. at 3:26-28.)

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On December 4, 2008, Makenzie again began experiencing “unbearable pain” and was

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admitted to the emergency room at Sutter. (Id. at 4:1-2.) One day later, she was given an

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injection of Bupivacaine that caused a severe reaction and unmanageable pain. (Id. at 4:3-6.)

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Sutter physicians subsequently concluded once again that they could not provide adequate

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treatment for Makenzie, and they informed Pauly that her daughter needed treatment from a

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specialized facility. (Id. at 4:7-9.) On December 7, 2008, Sutter physician Dr. Gates contacted

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Stanford and requested that Makenzie be transferred. Stanford allegedly informed Dr. Gates that

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“they would accept Makenzie in transfer but did not currently have a bed available.” (Id. at 10-

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11.) Pauly claims that on December 10, 2008, someone at Stanford contacted the attending

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physician at Sutter and indicated “that the issue was not really the lack of a bed but that Stanford

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Makenzie Pauly is Pauly’s minor daughter.
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Case No. 10-CV-5582-JF (PSG)
ORDER GRANTING MOTION TO DISMISS
(JFEX2)

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had a policy not to admit anyone to inpatient pain management until they had ‘failed outpatient

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clinic.’” (Id. at 4:26-5:1.) After learning of Stanford’s policy, Pauly agreed to Makenzie’s

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discharge from Sutter, and she immediately took her daughter to Stanford’s emergency room in

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hopes of receiving “stabilizing treatment.” (Id. at 5:2-13.)

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Upon her arrival at Stanford, Makenzie received an initial examination that included

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documentation of her vital signs, assessment of her pain level, and administration of morphine.

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(Id. at 5:13-28.) However, the attending resident refused to administer further treatment or admit

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Makenzie to inpatient treatment because of the previously communicated “outpatient failure”

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rule. (Id. at 6: 1-8.) Pauly attempted to communicate her belief that Makenzie’s condition was a

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result not of “chronic pain” but of some type of post-surgical reaction. (Id. at 6:4-24.) Stanford’s

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physicians refused Pauly’s continued requests to have her daughter admitted, and Pauly was

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forced to remove Makenzie from the hospital in a wheel chair. (Id. at 6:15-7:9.) “Makenzie was

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later diagnosed and treated for a myotoxic drug reaction to the surgical anesthesia Bupivacaine,

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of which she received a second dose at Sutter Hospital on December 5, 2008 . . . .” (Id. at 7:10-

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12.)

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II. LEGAL STANDARD
Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable

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legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela

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Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). For purposes of a motion to dismiss, the

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plaintiff’s allegations are taken as true, and the court must construe the complaint in the light

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most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). “To survive a

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motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff

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pleads factual content that allows the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)). Thus, a court need not accept as true

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conclusory allegations, unreasonable inferences, legal characterizations, or unwarranted

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deductions of fact contained in the complaint. Clegg v. Cult Awareness Network, 18 F.3d 752,
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Case No. 10-CV-5582-JF (PSG)
ORDER GRANTING MOTION TO DISMISS
(JFEX2)

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754-755 (9th Cir. 1994). If a complaint lacks facial plausibility, leave to amend must be granted

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unless it is clear that the complaint’s deficiencies cannot be cured by amendment. Lucas v. Dep’t

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of Corr., 66 F.3d 245, 248 (9th Cir. 1995). When amendment would be futile, however,

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dismissal may be ordered with prejudice. Dumas v. Kipp, 90 F.3d 386, 393 (9th Cir. 1996).

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III. DISCUSSION

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Stanford contends that Pauly lacks standing to bring a direct EMTALA claim related to

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the treatment of her minor daughter, as EMTALA’s civil enforcement provision provides a

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private right of action only for the individual patient. (Mot. to Dismiss, 3:15-19.) Pauly argues

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in her opposition papers that both the language of the statute and authoritative precedent support

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third-party standing. (Pl.’s Reply, 2:22-4:2.) The issue of whether third parties have standing to

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bring claims under EMTALA appears to be one of first impression in the Ninth Circuit.

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A.

EMTALA’s civil enforcement provision (42 U.S.C. § 1395dd(d)(2)(A))
Pursuant to EMTALA’s civil enforcement provision, “[a]ny individual who suffers

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personal harm as a direct result of a participating hospital’s violation of a requirement of this

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section may, in a civil action against the participating hospital, obtain those damages available

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for personal injury under the law of the State in which the hospital is located, and such equitable

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relief as is appropriate.” 42 U.S.C. § 1395dd(d)(2)(A) (emphasis added).

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B.

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The parties’ contentions
Stanford argues that a non-patient third party lacks standing to bring a claim under

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EMTALA. It cites two district court decisions in support of its position: Zeigler v. Elmore

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County Health Care Authority, et al., 56 F. Supp. 2d 1324 (M.D. Ala. 1990), and Sastre v.

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Hospital Doctor’s Center, Inc., 93 F. Supp. 2d 105 (D. Puerto Rico 2000). Both opinions rely

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heavily upon EMTALA’s legislative history. Pauly argues that both cases apply faulty methods

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of statutory interpretation and fail to follow other authoritative precedent. (Pl.’s Reply, 2:22-26.)

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She asserts that “the plain language of EMTALA is clear and unambiguous on the issue of who

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may bring a claim in a civil EMTALA action,” (Id. at 4:1-2), and that it is clear that a third party

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may have standing to bring an EMTALA claim. Pauly relies primarily upon Moses v.

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Providence Hosp. And Medical Ctr. Inc., 561 F.3d 573 (6th Cir. 2009). She also observes
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Case No. 10-CV-5582-JF (PSG)
ORDER GRANTING MOTION TO DISMISS
(JFEX2)

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correctly that where the language of a statute is unambiguous, the significance of legislative

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history is significantly diminished.

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C.

Analysis

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In Zeigler, as is the case here, the plaintiff was a mother who sued for EMTALA

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violations related to the treatment of her infant daughter.3 The defendant hospital argued

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successfully that it was entitled to judgment as a matter of law because the plaintiff lacked

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standing. Id., 56 F. Supp. 2d at 1326. The court carefully detailed the legislative history of

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EMTALA’s civil enforcement provision, which is embodied in H.R. 3128. In its original form,

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the provision would have permitted “[a]ny person or entity that is adversely affected directly by

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a participating hospital’s violation” to sue in state or federal court. Id. (citing H.R.Rep. No. 99-

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241, pt. 1, at 132) (emphasis added). However, the provision later was amended to apply to

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“[a]ny individual who suffers personal harm and any medical facility which suffers financial loss

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as a direct result of a participating hospital’s violation . . . .” Id. (citing H.R.Rep. No. 99-241,

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pt.3, at 3) (emphasis added). The report of the House Judiciary Committee explains that the bill

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was intended to authorize “only two types of actions for damages.” Id. (citing H.R.Rep. No. 99-

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241, pt.3, at 3, reprinted in 1986 U.S.C.C.A.N. 42, 728). The first type of action “could be

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brought by the individual patient who suffers harm as a direct result of [the] hospital’s failure to

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appropriately screen, stabilize, or properly transfer the patient,” and the second type of action

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could be maintained by the adversely affected medical facility. Id. The final version of the bill

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contained virtually identical language, except that the reference to suits by a “medical facility”

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was deleted because another provision of the statute already provides for such suits. Id. at 1326-

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The court determined that the legislative history “suggests quite strongly that Congress

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intended to allow suit only by what the House Judiciary Committee called the ‘individual

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patient,’ that is, the individual for whose medical condition the emergency medical examination

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Notably, the plaintiff in Zeigler brought suit in both her individual and a representative
capacity. Pauly brings suit only on her own behalf. (See Pl.’s Opp., 2:5-6.)
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Case No. 10-CV-5582-JF (PSG)
ORDER GRANTING MOTION TO DISMISS
(JFEX2)

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or treatment was sought.” Zeigler, 56 F. Supp. 2d at 1327. It also found that this reading of the

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provision was supported by traditional principles of statutory construction. It noted that under

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§1395dd(a), “if any individual . . . comes to the emergency department and a request is made on

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the individual’s behalf for examination or treatment for a medical condition, the hospital must

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provide for an appropriate medical screening examination . . . .” In light of this use of

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“individual,” the court concluded that the term “clearly refers to the individual with the medical

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condition, and [that] it makes sense that Congress would carry this meaning forward to

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§1395dd(d)(2)(A).” Zeigler, 56 F. Supp. 2d at 1327. The court observed that the use of

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“individual” to refer to the “individual patient” is consistent throughout §1395dd. Id. (citing 42

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U.S.C. §§1395dd(a)-(i)).

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In Sastre, the plaintiffs were the patient, her husband, and their daughter. As in Zeigler,

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the defendant hospital argued that neither the husband nor the daughter had third-party standing;

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the court agreed on the basis of EMTALA’s legislative history. Sastre, 93 F. Supp. 2d at 111.

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However, the court also distinguished cases in which an “EMTALA claim passes on to a

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deceased patient’s heirs” from cases involving relatives of a living patient with an EMTALA

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claim. Id.4

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In Moses v. Providence Hosp. and Medical Ctr. Inc., 561 F.3d 573, 580 (6th Cir. 2009),

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the plaintiff was the representative for the estate of a deceased woman. The representative

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alleged that the defendants violated EMTALA by prematurely releasing the deceased’s husband,

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who later murdered her. The Sixth Circuit distinguished Zeigler and Sastre, reasoning that

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“because the estate of the individual who suffered an actual personal injury brings the suit in this

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case, claiming personal harm as a direct result of the hospital’s decision, those decisions are

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inapposite and of limited persuasive value.” Id. at 580. However, the court also commented that

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the “plain language of the civil enforcement provision of EMTALA contains very broad language

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The court distinguished Correa v. Hospital San Francisco, 69 F.3d 1184 (1st Cir. 1995)
on the basis that Correa “does not squarely address whether the relatives of a living patient have
a cause of action under EMTALA.” Sastre, 93 F. Supp. 2d at 111. It concluded that “the scope
of the First Circuit’s holding is circumscribed to a situation where the heirs of a dead patient
inherit his or her EMTALA cause of action.” Id.
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Case No. 10-CV-5582-JF (PSG)
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regarding who may bring a claim.” Id. The court minimized the legislative history relied upon

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by the courts in Zeigler and Sastre, noting that “where a House committee’s explanation of the

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meaning of a statute seems to differ from the statute’s actual wording, this Court should not rely

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on that committee’s statement as the exclusive explanation for the meaning of the statute.” Id.

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(citing Exxon Mobil Corp. v. Allapatah Servs., Inc., 545 U.S. 546, 568 (2005)). It concluded that

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“EMTALA’s plain language belies Defendants’ argument that Congress intended to deny non-

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patients the right to sue in every circumstance[,]” while at the same time “recogniz[ing] that [its]

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interpretation of the civil enforcement provision may have consequences for hospitals that

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Congress may or may not have considered or intended.” Id. at 581-82.

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The Sixth Circuit also addressed directly the argument that the words “any individual”

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contained in §1395dd(d)(2)(A) must be read in context with the rest of the statute. It observed

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that “the medical screening requirement and the stabilization requirement do not refer to the

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same ‘individual’ – the medical screening requirement of §1395dd(a) only applies to individuals

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who come to an ‘emergency department,’ presumably a smaller subset of individuals than those

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‘who come to a hospital’ and are the subject of §1395dd(b), and that “[t]his differing language

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indicates that Congress did not intend EMTALA’s entire statutory scheme to apply to the same

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‘individual’ in every part of the statute.” Id. at 580. The court concluded that “the fact that the

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statute expressly limits the individual to whom the hospital owes its EMTALA obligations in §§

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1395dd(a) and (b) indicates that the breadth of the civil enforcement provision was no accident.”

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Id. It also concluded that “[i]f Congress had intended to limit the right of action to any

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individual who ‘comes to a hospital’ as a patient, it could have done so, just as it did in other

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parts of the section.” Id. at 580-81 (citing United States v. Parrett, 530 F.3d 422 (6th Cir.

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2008)).

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Having considered all of the relevant case law carefully, this Court finds Zeigler and

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Sastre more persuasive than Moses. In light of the unique facts of that case, the statutory analysis

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in Moses was unnecessary to the holding. Because Congress did limit expressly the persons to

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whom a hospital owes its EMTALA obligations, it was unnecessary for it to limit expressly the

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private right of action for enforcing these obligations. Moses itself recognizes that §§ 1395dd(a)
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Case No. 10-CV-5582-JF (PSG)
ORDER GRANTING MOTION TO DISMISS
(JFEX2)

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and (b) apply to distinct groups of “individual patients,” and thus Congress’s decision to extend a

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private right of action to “any individual” properly may be understood as evidence of an intent to

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extend that right to each group of “individual patients” described in the statute.

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D.

Conclusion

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Extending a private right of action to a third party when the individual patient is still

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living would result in a significant expansion of liability for hospitals subject to EMTALA’s

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provisions. Because the language of the statute as a whole is inconsistent with such a result, this

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Court adopts the narrower reading upheld in Zeigler and Sastre. Nothing in this analysis

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precludes Pauly from bringing a representative action on behalf of her daughter or from asserting,

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based upon her allegations that she witnessed Makenzie’s suffering directly, a state-law claim for

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negligent infliction of emotional distress.

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IV. ORDER

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Good cause therefor appearing, the motion to dismiss is GRANTED, with leave to

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amend. Any amended pleading must be filed within thirty (30) days of the date of this order.

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DATED: May 11, 2011

__________________________________
JEREMY FOGEL
United States District Judge

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Case No. 10-CV-5582-JF (PSG)
ORDER GRANTING MOTION TO DISMISS
(JFEX2)