Etter et al v. Bibby et al

Filing 98

ORDER granting 76 Defendant DCMHs motion for summary judgment on Plaintiffs EMTALA claims; Furthermore, because my jurisdiction over Plaintiffs malpractice claims is dependent upon my jurisdiction over their EMTALA claim, I decline to exercise supplemental jurisdiction over what are uniquely state law claims. 28 USC 1367(c)(3). Accordingly, IT IS ALSO ORDERED that Plaintiffs three claims for relief under malpractice are DISMISSED WITHOUT PREJUDICE, by Judge John L. Kane on 3/14/2012.(ervsl, )

UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 10-cv-00557-JLK
JOHANNA ETTER and ARTHUR ETTER,
Plaintiffs,
v.
CHARLES KING BIBBY JR., M.D.,
TIMOTHY CARTER MEILNER, M.D., and
DELTA COUNTY MEMORIAL HOSPITAL DISTRICT
Defendants.

ORDER
Kane, J.,
Plaintiffs Johanna and Arthur Etter bring four claims on behalf of their daughter,
Gabrielle Etter, against Dr. Charles Bibby, Dr. Timothy Meilner, and Delta County Memorial
Hospital District (DCMH). Three claims allege negligence and a breach of duty of care under
state malpractice law by all three defendants and a fourth claim alleges that Defendant DCMH
violated the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. 1395dd(e)(3)(b)
(EMTALA). Under the EMTALA claim, Plaintiffs allege that Defendant DCMH failed to
provide a proper medical screening to Gabrielle and discharged her in an unstable condition.
This matter is currently before me on Defendant DCMH’s Motion for Summary Judgment on
both the EMTALA claim and the state malpractice claims (doc. 76). Being fully appraised of the
arguments contained in the parties’ briefs, Defendant DCMH’s motion for summary judgment as
1

to Plaintiff’s EMTALA claim is GRANTED. Because I lack jurisdiction over the remaining
state malpractice claims they are DISMISSED WITHOUT PREJUDICE.
BACKGROUND1
This case arises from the tragic and untimely death of Gabrielle Etter, an active thirteenyear old teenager living in Paonia, Colorado. After she complained of a worsening illness, her
mother Johanna Etter took her to be seen by their family physician. Gabrielle was diagnosed
with and treated for influenza. This treatment, however, failed to ameliorate Gabrielle’s
symptoms. At home late the next evening, March 22, 2008, her condition worsened, prompting
her mother and grandmother to take her to Delta County Memorial Hospital’s (DCMH)
Emergency Department (ED).
Upon her arrival in the ED, Gabrielle was evaluated by triage nurse Linda Johnson.
Nurse Johnson collected information relating to Gabrielle’s medical history, current medications
she was taking, and her reason for visiting the hospital. During this evaluation Nurse Johnson
measured Gabrielle’s vital signs and Gabrielle described her pain level. Patient Registration
Form (doc. 76-1) at 4.
Based on her initial intake assessment, Nurse Johnson classified Gabrielle in triage
category NU, non-urgent. Patient Registration Form (doc. 76-1) at 4. Gabrielle and her family
were taken to an examination room and seen forty minutes later by ED Physician Dr. Charles

1

These facts are taken from the parties’ briefs and exhibits. The filings are not entirely
consistent in their recitation of the facts, but I have reconciled all discrepancies in favor of the
Plaintiffs. Furthermore I draw all reasonable inferences in favor of Plaintiffs (the non-moving
party). Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
2

Bibby.2 Deposition of Johanna Etter (doc. 83-2) at 3, 96:15-23; Deposition of Margaret
Hollander (doc. 83-3) at 2, 76:16-22. Dr. Bibby collected Gabrielle’s medical history, performed
a physical examination, and ordered a chest x-ray and multiple laboratory studies. Patient
Registration Form (doc. 76-1) at 7. Blood and urine were collected to perform a panel of
laboratory studies, but two tests were canceled by an unidentified hospital employee because of
an insufficient blood volume in the original sample. Patient Registration Form (doc. 76-1) at 7;
Deposition of Charles King Bibby (doc. 76-3) at 4, 101:1-102:3. Gabrielle’s chest x-ray
indicated pneumonia, the blood tests suggested a bacterial infection, and the urinalysis
potentially indicated dehydration. Patient Registration Form (doc. 76-1) at 15; Deposition of
Michael Jobin (doc. 83-5) at 7, 69:22-70:7; DCMHD Records (doc. 83-6) at 2.
Based on his review of the results from the completed tests and his physical examination
of Gabrielle, Dr. Bibby determined that additional tests were not medically necessary. Because
he did not want to subject Gabrielle to more blood draws, Dr. Bibby approved the previous
cancellation of additional tests and diagnosed Gabrielle with influenza and pneumonia.
Deposition of Charles King Bibby (doc. 76-3) at 4, 102:12-23, 110:13-23; Patient Registration
Form (doc. 76-1) at 6. He ordered pain medications and antibiotics to treat Gabrielle’s
symptoms and illness. These medications were administered in the ED and prescribed to be
taken at home following discharge. Gabrielle’s family was provided oral care instructions by Dr.
Bibby and Nurse Johnson and a written copy of the instructions to take home. Before releasing
Gabrielle, Nurse Johnson collected her discharge vital signs. Gabrielle was discharged at 4:08

2

The timing of Dr. Bibby’s examination is disputed. Because DCMH documentation is
internally inconsistent and conflicts with Plaintiff’s recitation of the facts, I have adopted forty
minutes as the timing of the examination, in favor of the Plaintiffs.
3

a.m. on March 22, 2008 and returned home in the care of her mother and grandmother. On
March 23, 2008, Gabrielle died.3
STANDARD OF REVIEW
Defendant DCMH is entitled to summary judgment “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that Defendant is entitled to judgment as a matter of law.” Fed R. Civ. P.
56(c)(2); Adamson v. Multi. Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008).
A material fact is one which a rational jury could use in finding for the Plaintiffs on the basis of
the evidence, ultimately affecting the outcome of the suit under governing law. Adamson, 514
F.3d at 1145.
To meet their burden of proof, the Plaintiffs may only rely upon evidence setting forth
facts that would be admissible at trial. Adams v. Am. Guar. and Liab. Ins. Co., 233 F.3d 1242,
1246 (10th Cir. 2000). Accordingly, neither unsupported conclusory allegations, speculation,
opinion, nor hearsay testimony are acceptable substitutions for admissible evidence or are
sufficient to create a genuine dispute of material fact on summary judgment. Mackenzie v. City
& Cty. of Denver, 414 F.3d 1266, 1273 (10th Cir. 2005); Thomas v. Int’l Bus. Mach., 48 F.3d
478, 485 (10th Cir.1995).
In assessing the provided facts, I draw all reasonable inferences in favor of Plaintiffs as
the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986); Delaney v. Cade, 986 F.2d 387, 392 (10th Cir.1993). Because the Plaintiffs bear the
ultimate burden of proof, however, Defendant DCMH, as the moving party, may prevail by

3

No autopsy was performed and the parties dispute the cause of death.
4

showing the absence of any one necessary element. With the standard of review established, I
will now address Plaintiffs’ claims.
ANALYSIS
Plaintiffs’ federal claim against Defendant DCMH is governed by the Emergency
Medical Treatment and Active Labor Act (EMTALA). Congress enacted EMTALA in 1986 to
guarantee equal access to screening and stabilization procedures for all individuals requesting
medical services in a hospital’s Emergency Department (ED). Collins v. DePaul Hosp., 963
F.2d 303, 308 (10th Cir.1992). Significantly, EMTALA is limited to preventing the “dumping”
of patients; it is not a federal malpractice statute. Urban v. King, 43 F.3d 523, 525 (10th
Cir.1994); Abercrombie v. Osteopathic Hosp. Founders Ass’n, 950 F.2d 676, 680 (10th
Cir.1991).
Because Defendant DCMH has an ED, under EMTALA it has two obligations to patients
requesting service: (1) it must conduct an “appropriate medical screening examination”(MSE) to
determine the existence of an emergency medical condition (EMC); and (2) if the hospital
acquires actual knowledge of an EMC, it must carry out “treatment as may be required to
stabilize the medical condition.” 42 U.S.C. § 1395dd(a)(1), (b)(1). Plaintiffs allege that
Defendant DCMH failed to meet either of these obligations in its assessment and treatment of
their daughter. Defendant DCMH alleges that Plaintiffs have failed to show a genuine issue of
material fact regarding either Gabrielle’s MSE or her EMC diagnosis and stabilization. I address
each argument seriatim.
Appropriate Medical Screening Exam
To prevail on their claim that Defendant DCMH failed to provide an adequate medical

5

screening evaluation (MSE), Plaintiffs must show that Gabrielle was not treated in the same
manner as other patients with similar medical conditions. Phillips v. Hillcrest Med. Ctr., 244
F.3d 790, 797 (10th Cir.2001). Defendant DCMH’s policies are the touchstone of this analysis.
Repp v. Anadarko Mun. Hosp., 43 F.3d 519, 522 n.4 (10th Cir.1994). In making a determination
of whether Defendant DCMH treated Gabrielle in the same manner as other patients, I do not
assess the adequacy of its policies. I only consider whether the policies were followed. Id.
In support of their MSE claim, Plaintiffs bring three arguments: (1) Defendant DCMH
carried out an insufficient panel of metabolic tests; (2) it failed to administer additional tests
which ought to have been administered; and (3) it violated its policy when it assigned Gabrielle
to an incorrect triage category. I address them in succession.
As a threshold matter, the first two arguments fail to claim a violation of hospital policy.
Plaintiffs first assert that Gabrielle’s MSE was inadequate because Defendant DCMH
administered an insufficient panel of metabolic tests. Defendant DCMH’s MSE policy requires
a physician’s medical screening to include the collection of a patient history, an appropriate
physical examination, and a supportive diagnostic evaluation. Delta County Memorial Hospital
Emergency Department Policy (doc. 83-11) at 5. Uncontested evidence demonstrates that Dr.
Bibby collected Gabrielle’s medical history, administered a comprehensive examination, and
ordered further tests to effectuate a diagnostic evaluation. Dr. Bibby’s actions fall well within
those dictated by Defendant DCMH’s medical screening policy. Though Plaintiffs’ experts
assert that Gabrielle’s screening should have included the cancelled metabolic tests, these
assertions fail to identify a genuine issue of material fact because they have not shown a DCMH
policy that was violated by the test cancellation.

6

Plaintiffs also assert that the MSE was inadequate because Defendant DCMH failed to
administer additional tests to diagnose Gabrielle’s state of dehydration. Every ED has a
multitude of medical tests at its availability; whether or not the tests are performed on a given
patient is up to the discretion of trained professionals. Unless mandated by hospital policy, I
decline to intervene and dictate which tests could or should have been administered. Plaintiffs
have not identified a DCMH policy which was violated by the absence of additional medical
tests and have failed to identify a genuine issue of material fact with respect to Gabrielle’s MSE.
Although Plaintiffs’ third argument suggests a violation of DCMH policy, Plaintiffs fail
to provide any admissible evidence in support of this claim. Plaintiffs allege that Defendant
DCMH violated its policy when it assigned Gabrielle an arguably incorrect triage category.
Neither of Plaintiffs’ experts had read Defendant DCMH’s policies before giving their opinions.
Their statements regarding these policies are therefore inadmissible for purposes of resolving
Defendant DCMH’s summary judgment motion. Fed. R. Civ. P. 26(a)(2)(b), 37(c)(1).
Accordingly, Plaintiffs have failed to provide a genuine issue of material fact regarding the
assertion that Defendant DCMH violated its triage policy. Even if the testimony of Plaintiffs’
expert witnesses were admissible, however, Plaintiffs’ EMTALA claim would not prevail.
Defendant DCMH’s triage policy requires nursing personnel to evaluate the symptoms of
each patient arriving in the ED and classify the immediacy of their medical needs into one of
four categories. The purpose of this policy is to assure that patients are treated by physicians in a
timely fashion. Delta County Memorial Hospital Emergency Department Policy (doc. 83-11) at
1. When Gabrielle arrived in Defendant DCMH’s ED she was assessed by a triage nurse and
diagnosed as having a non-urgent (NU) condition.

7

Plaintiffs argue that Defendant DCMH’s triage categorization was incorrect and that
based on the severity of her symptoms, Gabrielle should have been classified as having an
“emergent” medical condition.4 This classification mandates a physician evaluation within five
to ten minutes. Gabrielle was seen by Dr. Bibby within forty minutes. Plaintiffs have failed to
present evidence that a thirty-minute delay from ten to forty minutes actually impacted
Gabrielle’s diagnosis or treatment. In the absence of this evidence, these thirty minutes amount
to a de minimus variation from Defendant DCMH’s policy; this does not amount to a violation of
the policy. Repp, 43 F.3d at 523. Plaintiffs have, therefore, failed to identify a genuine issue of
material fact about whether Gabrielle was afforded an appropriate MSE; any challenge to the
medical diagnosis by Plaintiffs rests in their negligence claims, not EMTALA.
Emergency Medical Condition and Stabilization
Plaintiffs also argue that Defendant DCMH failed to stabilize Gabrielle. When a
hospital knows that a patient has an emergency medical condition (EMC), it must stabilize the
patient before transfer or discharge. 42 U.S.C. § 1395dd(b)(1); Urban, 43 F.3d at 525. When
the patient has no diagnosed EMC, the duty to stabilize does not apply. Id. at 526. Under this
standard, Plaintiffs must show that Defendant DCMH had actual knowledge that Gabrielle had
an unstabilized EMC, and that it failed to properly stabilize her before discharging her. Id. at
525.
Plaintiffs’ experts assert that the hospital should have known that Gabrielle had an EMC,
but Defendant DCMH has shown that its medical personnel had no actual knowledge of an

4

Although the basis for this allegation is not directly supported by Defendant DCMH’s
policy, I construe the policy in the light most favorable to Plaintiffs’ argument. Delta County
Memorial Hospital Emergency Department Policy (doc. 83-11) at 1-2.
8

EMC. Undisputed testimony by Plaintiffs’ experts supports this position. Deposition of Michael
Jobin (doc. 88-9) at 2, 102:6-22; Deposition of Timothy Hutchinson (doc. 88-1) at 3-4, 124:20125:4 . In the absence of actual hospital knowledge, there is no EMTALA liability for failure to
stabilize.
Although Plaintiffs argue that EMTALA liability can attach in the absence of actual
knowledge, when it should have known that there was an EMC, there is no legal authority
supporting this proposition. In fact, every circuit considering the issue has reached the opposite
conclusion: actual knowledge of an EMC is a prerequisite to the duty to stabilize. Urban, 43
F.3d at 525-26; Torretti v. Paoli Mem’l Hosps., Inc., 580 F.3d 168 (3d Cir. 2009); Smith v.
Botsford Gen. Hosp., 419 F.3d 513, 515-516 (6th Cir. 2005); Vickers v. Nash Gen. Hosp., Inc.,
78 F.3d 139, 145 (4th Cir.1996); Eberhardt v. City of Los Angeles, 62 F.3d 1253, 158 (9th
Cir.1995); Holcomb v. Monahan, 30 F.3d 116, 117 (11th Cir.1994); Gatewood v. Washington
Healthcare Corp., 933 F.2d 1037, 1041 (D.C.Cir.1991). The reason for this conclusion is
apparent: if EMTALA dictated a ‘should have known’ standard, it would swallow malpractice
and overextend Congress’ intended reach. See H.R. Rep. No. 241 (I), 99th Cong., 1st Sess. 27,
reprinted in U.S. Code Cong. & Admin News, 42, 605.
Because they acknowledge that Defendant DCMH had no actual knowledge of an EMC,
Plaintiffs have failed to provide a genuine issue of material fact regarding Defendant DCMH’s
duty to stabilize.5

5

EMTALA has limited reach and purpose and does not require hospital personnel to
render a correct diagnosis from a medical screening. Collins, 963 F.2d at n.5. By complying
with its policies, a hospital has an absolute defense to an EMTALA claim. Consequently,
formulation of substandard policies would seem an easy way to avoid liability. This is not the
case, however, as such practices are not a defense to state malpractice liability.
9

CONCLUSION
Because Plaintiffs have failed to present evidence either that Defendant DCMH’s MSE
was inadequate or that it failed to stabilize an EMC possessed by Gabrielle, Defendant DCMH is
entitled to summary judgment. Accordingly, Defendant DCMH’s motion for summary judgment
on Plaintiffs’ EMTALA claims is GRANTED.
Furthermore, because my jurisdiction over Plaintiffs’ malpractice claims is dependent
upon my jurisdiction over their EMTALA claim, I decline to exercise supplemental jurisdiction
over what are uniquely state law claims. 28 USC 1367(c)(3). Accordingly, IT IS ALSO
ORDERED that Plaintiff’s three claims for relief under malpractice are DISMISSED WITHOUT
PREJUDICE.

Dated: March 14, 2012

BY THE COURT:
/s/ John L. Kane
Senior U.S. District Court Judge

10