Leimbach v. Hawaii Pacific Health
Filing
55
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS COMPLAINT, DOC. NO. 31 . Signed by JUDGE J. MICHAEL SEABRIGHT on 7/22/2015. (afc) Excerpt of conclusion: "[T]he court GRANTS Defendants' M otion to Dismiss with leave for Plaintiff to amend as stated in this Order. By August 17, 2015, Plaintiff may file a Second Amended Complaint." "Leave to amend is limited to the claims addressed in this Order; if Plaintiff wishes to ass ert any new claims, he must comply with Rule 15 and/or 16. If Plaintiff fails to file a Second Amended Complaint by August 17, 2015, this action will be closed." Written Order follows hearing held June 29, 2015 on defendant s' Motion to Dismiss. Minutes of Hearing: docket entry no. 54 CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MATTHEW R. LEIMBACH,
)
)
Plaintiff,
)
)
vs.
)
)
HAWAII PACIFIC HEALTH,
)
WILCOX MEMORIAL HOSPITAL, )
KAUAI MEDICAL CLINIC,
)
WILCOX HEALTH SYSTEM, and )
DOES 1-150,
)
)
Defendants.
)
_____________________________ )
CIV. NO. 14-00246 JMS-RLP
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS COMPLAINT,
DOC. NO. 31
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
COMPLAINT, DOC. NO. 31
I. INTRODUCTION
Plaintiff Matthew R. Leimbach (“Plaintiff”) brings this action against
Defendants Hawaii Pacific Health (“HPH”), Wilcox Memorial Hospital (“WMH”),
Kauai Medical Clinic (“KMC”), and Wilcox Health System (“WHS”)
(collectively, “Defendants”), alleging that they provided inappropriate, disparate,
and cursory care in treating what was ultimately determined to be necrotizing
fasciitis in Plaintiff’s left foot. Plaintiff’s First Amended Complaint (“FAC”)
asserts claims for violation of the Emergency Medical Treatment and Active Labor
Act (“EMTALA”), 42 U.S.C. § 1395dd(a) & (b).1
Currently before the court is Defendants’ Motion to Dismiss, arguing
that Plaintiff has failed to allege sufficient facts to support a plausible EMTALA
violation. For the reasons set forth below, the motion is GRANTED with leave to
amend.
II. BACKGROUND
A.
Factual Background
1.
Judicial Notice of Admission Records
In outlining the factual allegations of the FAC, the court must first
address a threshold issue raised by the parties -- whether the court may take
judicial notice of Plaintiff’s medical records, which document the emergency room
visits that are the basis of his claims, and which Defendants present with their
Motion. See Doc. Nos. 31-5, 31-6, Defs.’ Exs. B, C.
If a court considers evidence outside the pleadings when ruling on a
Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, “it must normally
1
The FAC also seeks a declaratory judgment that Plaintiff’s EMTALA claims are not
subject to the medical inquiry and conciliation panel process outlined in Hawaii Revised Statutes
§ 671-12(a). At the June 29, 2015 hearing, the parties agreed that this claim is moot, and the
court therefore dismisses it without leave to amend.
2
convert the 12(b)(6) motion into a Rule 56 motion for summary judgment.”
United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003) (citations omitted).
However, a court may consider “documents incorporated by reference in the
complaint . . . without converting the motion to dismiss into a motion for summary
judgment.” Id. at 908 (citations omitted). A document may be incorporated by
reference if (1) “the plaintiff refers extensively to the document,” or (2) “the
document forms the basis of the plaintiff’s claim.” Id. (citations omitted). The
court may treat the document as part of the complaint and assume its contents are
true for the purposes of a Rule 12(b)(6) motion, even if the defendant offers the
document. Id.
Although not attached to the FAC, Plaintiff refers to his medical
records extensively, quoting them at length in several paragraphs of the FAC. See
Doc. No. 21, FAC ¶¶ 10, 13, 27-28, 65, 72-73. The FAC also asserts that the
medical records are “incomplete and misleading,” id. ¶ 13, and Plaintiff bases his
claims, in part, on the allegation that Defendants failed to include specific
information in the records. Id. ¶ 47. Given the FAC’s extensive reference to the
medical records, the court finds that they may be treated as part of the FAC. See
Ritchie, 342 F.3d at 908.
3
In opposition, Plaintiff argues that the admission records and medical
terms used in them “are not matters of common knowledge within the experience
of non-experts,” and statements contained in the record are “required to be made
by an expert witness.” Doc. No. 51, Pl.’s Opp’n at 6 (citations omitted). The
court rejects this argument -- the records simply provide additional details of
Plaintiff’s treatment, and at the Motion to Dismiss stage, no expert testimony is
needed.
The court therefore proceeds to outline the facts based on the
allegations of the FAC and Plaintiff’s May 24 and 27, 2012 medical records.
2.
Plaintiff’s May 24, 2012 Treatment
In May of 2012, Plaintiff sustained mosquito bites and lacerations to
his left foot during a three-week trip to Indonesia. Doc. No. 21, FAC ¶ 7. On May
23, the day after Plaintiff returned to Kauai, he hurt, but did not cut, his left foot
while exiting a truck. Id.
On May 24, 2012, Plaintiff visited Defendants’ outpatient clinic,
presenting the following symptoms to clinic staff: acute and increasing pain to his
left foot, severe swelling and discoloration in his left foot, shortness of breath, a
bitter taste in his mouth, and severe and acute flu-like symptoms, including body
aches, headaches, nausea, dehydration, pain, and vomiting. Id. ¶ 8; see also Doc.
4
No. 31-5, Defs.’ Ex. B at W000004. Plaintiff informed clinic staff that he had no
job or health insurance. Doc. No. 21, FAC ¶ 9. Clinic staff recorded Plaintiff’s
temperature as 100.2° F and his blood pressure as 81/38, then informed him that
his blood pressure was too low for clinic services. Id. As a result, Plaintiff was
taken and admitted to Defendants’ emergency room (“ER”). Id.
At the ER, laboratory diagnostics were performed, resulting in a
diagnostic impression of “Viral infection. Sprain of ankle.” Id. ¶ 13; see also
Doc. No. 31-5, Defs.’ Ex. B at W000008. The FAC asserts that one of
Defendants’ nurses told Plaintiff that WMH patients with symptoms such as his
are usually given MRI or CT scans, Doc. No. 21, FAC ¶ 14, but that “the hospital
could not use its scan equipment for him, as the machine was ‘down.’” Id. ¶ 60.
Defendants did not attempt to transfer Plaintiff to another facility for this
screening, id., and as a result, Plaintiff was not given an MRI or CT scan on May
24, 2012. Id. ¶ 14.
Plaintiff was released from the ER that day, and was advised to “use
Tylenol or ibuprofen [for his fever] . . . stay hydrated and get plenty of bed rest.
Follow up in the urgent care clinic next week . . . [use] crutches and keep [his] leg
elevated.” Doc. No. 31-5, Defs.’ Ex. B at W000014.
5
3.
Plaintiff’s May 27-31, 2012 Treatment
From May 25 to May 27, 2012, Plaintiff’s temperature did not drop
below 100° F, and frequently reached temperatures as high as 104° F. Doc. No.
21, FAC ¶ 26. When Plaintiff called Defendants’ ER, he was told to take
ibuprofen. Id. This call was not charted in his file or otherwise recorded. Id.
On May 27, 2012 at about 9:10 p.m., Plaintiff was admitted to
Defendants’ ER a second time (where his forms again referred to “MED
QUEST”), and remained there overnight. Id. ¶ 27. Plaintiff presented many of the
same symptoms as at his first visit, in addition to a high white blood cell count,
bandemia, failing platelets, hypotension, and blood volume depletion. Id. ¶ 28;
see also Doc. No. 31-6, Defs.’ Ex. C at W000025. A chart note stated that his
symptoms suggested “early sepsis.” Doc. No. 21, FAC ¶ 28; Doc. No. 31-6, Defs.’
Ex. C at W000025.
Two hours after his admission, Plaintiff’s lab results revealed that he
was positive for systemic inflammatory response syndrome (SIRS) and was
suffering from sepsis. Doc. No. 21, FAC ¶ 64. Hospital staff also ascertained that
Plaintiff’s blood pressure and pulse were abnormal, and Plaintiff reported constant
pain in his ankle at a pain level of 9 on a scale of 10. Id. ¶ 67. Plaintiff was not
diagnosed or stabilized for necrotizing fasciitis -- which is “a progressive, rapidly
6
spreading inflammatory infection located in the deep fascia, causing secondary
necrosis of the subcutaneous tissues,” and which requires early identification,
administration of broad-spectrum antibiotics, and rapid surgical debridement.
Id. ¶ 20. Instead, Defendants ran more tests. Id. ¶ 64.
At some time in the morning of May 28, 2012, hospital staff recorded
that Plaintiff’s white blood cell count was elevated and his average temperature
was 101.3° F. Id. ¶ 68. At 6:37 a.m. on May 28, 2012, a “CBC test” showed that
Plaintiff’s “bands and platelets were low,” and at some point, “Defendant finally
got around to ‘recommending’ a CT scan and an orthopedic surgery consultation.”
Id. One of Defendants’ hospitalists noted discoloration, blister formation, and
increased swelling of Plaintiff’s left foot. Id. ¶ 71. Although the hospitalist was
“mildly concerned about necrotizing fasciitis, the hospitalist ignored the need for
rapid surgical intervention” or the need to transfer Plaintiff, and instead ordered a
culture for “Group A Strep.” Id. ¶¶ 71-72; see also Doc. No. 31-6, Defs.’ Ex. C at
W000025.
Plaintiff was admitted to WMH some time after 1:12 p.m. on May 28,
2012. Doc. No. 21, FAC ¶ 68. At 10:35 p.m. that evening, Plaintiff gave consent
for Defendants’ general surgeon to perform treatment for “cellulitis of left leg,
possible abscess, possible fasciitis.” Id. ¶ 73. Plaintiff was not, however, treated
7
for necrotizing fasciitis, and Defendants’ hospitalist told him that he did not have
necrotizing fasciitis after the surgery. Id. ¶ 74.
At about noon on May 29, 2012, Defendants called an infectious
disease specialist to examine Plaintiff. Id. ¶ 75. The specialist eventually ordered
a change in antibiotics and recommended further surgery. Id.
On May 31, 2012, Plaintiff’s family arranged for his transport to
Queen’s Medical Center (“QMC”) on Oahu, and Plaintiff was transferred that day,
“over objection and stalling by Defendant’s administrators . . . .” Id. ¶ 76. When
Plaintiff arrived at QMC, he was given an MRI scan and diagnosed with
necrotizing fasciitis, which was treated with surgeries and other procedures. Id.
¶¶ 23, 77.
B.
Procedural Background
On May 23, 2014 Plaintiff filed his Complaint against Defendants
asserting violations of EMTALA § 1395dd(a) & (b) and seeking declaratory
judgment under 28 U.S.C. § 2201. Doc. No. 1. After Defendants filed a Motion
to Dismiss, Plaintiff filed his FAC on April 1, 2015. Doc. No. 21.
8
On April 16, 2015, Defendants filed their Motion to Dismiss. Doc.
No. 31. Plaintiff filed an Opposition on June 1, 2015.2 Doc. No. 51. Defendants
filed a Reply on June 8, 2015, Doc. No. 52. On June 29, 2015, the court heard oral
arguments on the Motion. Doc. No. 54.
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss
a claim for “failure to state a claim upon which relief can be granted[.]” A Rule
12(b)(6) dismissal is proper when there is either a “‘lack of a cognizable legal
theory or the absence of sufficient facts alleged.’” UMG Recordings, Inc. v.
Shelter Capital Partners, LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting
Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)).
Although a plaintiff need not identify the legal theories that are the
basis of a pleading, see Johnson v. City of Shelby, Mississippi, 135 S. Ct. 346, 346
(2014) (per curiam), a plaintiff must nonetheless allege “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
2
In his Opposition, Plaintiff requested leave to file a supplemental brief or surreply to
address what he viewed as Defendants’ misleading and deceptive summarization of the
allegations of the FAC. Doc. No. 51, Pl.’s Opp’n at 7. Plaintiff also requested sanctions. Id.
at 8. The court denies both requests -- the court is perfectly capable of reading the FAC, and no
sanctions are warranted.
9
U.S. 544, 570 (2007)); see also Weber v. Dep’t of Veterans Affairs, 521 F.3d 1061,
1065 (9th Cir. 2008). This tenet -- that the court must accept as true all of the
allegations contained in the complaint -- “is inapplicable to legal conclusions.”
Iqbal, 556 U.S. at 678. Accordingly, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id.
(citing Twombly, 550 U.S. at 555); see also Starr v. Baca, 652 F.3d 1202, 1216
(9th Cir. 2011) (“[A]llegations in a complaint or counterclaim may not simply
recite the elements of a cause of action, but must contain sufficient allegations of
underlying facts to give fair notice and to enable the opposing party to defend
itself effectively.”).
Rather, “[a] claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). In other words, “the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such that it is not unfair to
require the opposing party to be subjected to the expense of discovery and
continued litigation.” Starr, 652 F.3d at 1216. Factual allegations that only
permit the court to infer “the mere possibility of misconduct” do not show that the
pleader is entitled to relief as required by Rule 8. Iqbal, 556 U.S. at 679.
10
IV. DISCUSSION
Defendants argue that Plaintiff has failed to allege a plausible claim
for violation of EMTALA. The court first outlines the legal framework for
EMTALA claims, and then addresses the allegations of the FAC.
A.
Legal Framework
“Congress enacted EMTALA to ensure that individuals, regardless of
their ability to pay, receive adequate emergency medical care.” Bryant v.
Adventist Health Sys./W., 289 F.3d 1162, 1165 (9th Cir. 2002) (quoting Jackson v.
E. Bay Hosp., 246 F.3d 1248, 1254 (9th Cir. 2001)). In particular, “Congress was
concerned that hospitals were ‘dumping’ patients who were unable to pay, by
either refusing to provide emergency medical treatment or transferring patients
before their conditions were stabilized.” Id. (quoting Eberhardt v. City of Los
Angeles, 62 F.3d 1253, 1255 (9th Cir. 1995)). EMTALA therefore imposes two
specific duties on a hospital -- the duty to provide “an appropriate medical
screening examination,” see 42 U.S.C. § 1395dd(a), and the duty to “stabilize” any
emergency medical conditions detected by the medical staff before transferring or
discharging the patient. Id. § 1395dd(b).
These two duties are limited -- EMTALA “was not enacted to
establish a federal medical malpractice cause of action nor to establish a national
11
standard of care.” Bryant, 289 F.3d at 1166 (citing Baker v. Adventist Health,
Inc., 260 F.3d 987, 993 (9th Cir. 2001)). Rather, “Congress enacted the EMTALA
not to improve the overall standard of medical care, but to ensure that hospitals do
not refuse essential emergency care because of a patient’s inability to pay.”
Eberhardt, 62 F.3d at 1258 (citing H.R. Rep. No. 241, 99th Cong., 1st Sess.
(1986), reprinted in 1986 U.S.C.C.A.N. 726-27). EMTALA therefore creates “a
new cause of action, generally unavailable under state tort law, for what amounts
to failure to treat and not to duplicate preexisting legal protections.” Bryant, 289
F.3d at 1168-69 (citation and quotations omitted). As a result, “[a]n individual
who receives substandard medical care may pursue medical malpractice remedies
under state law,” but a tort claim based on substandard care, alone, is not an
EMTALA violation. Id. at 1166.
As to the duty to provide an appropriate medical screening, EMTALA
provides that “[i]f an individual seeks emergency care from a hospital with an
emergency room and if that hospital participates in the Medicare program, then
‘the hospital must provide for an appropriate medical screening examination
within the capability of the hospital’s emergency department . . . to determine
whether or not an emergency medical condition . . . exists.’” Id. at 1165 (quoting
12
42 U.S.C. § 1395dd(a)). A hospital meets its obligation to provide an “appropriate
medical screening” if it:
provides a patient with an examination comparable to the
one offered to other patients presenting similar
symptoms, unless the examination is so cursory that it is
“not designed to identify acute and severe symptoms that
alert the physician of the need for immediate medical
attention to prevent serious bodily injury.”
Baker, 260 F.3d at 995; see also Jackson, 246 F.3d at 1256; Eberhardt, 62 F.3d at
1257-59.
Thus, an individual may establish an inappropriate screening claim by
showing that a hospital failed to provide a screening that is comparable to one
offered to other patients presenting similar symptoms, or by showing that the
examination was so cursory that it was not “designed to identify acute and severe
symptoms that alert [physicians] of the need for immediate medical attention[.]”
Jackson, 246 F.3d at 1256 (citation omitted); see also Eberhardt, 62 F.3d at 1258
(“[A] hospital can[not] discharge its duty under the EMTALA by not providing
any screening, or by providing screening at such a minimal level that it properly
cannot be said that the screening is ‘appropriate.’”) (emphasis omitted).
Additionally, “[e]vidence that a hospital did not follow its own screening
procedures can support a finding of EMTALA liability for disparate treatment.”
13
Baker, 260 F.3d at 995 (quoting Battle v. Mem. Hosp., 228 F.3d 544, 558 (5th Cir.
2000)); see also Repp v. Anadarko Mun. Hosp., 43 F.3d 519, 523 (10th Cir. 1994)
(noting that “slight deviation[s]” or “de minimus variations” from a hospital’s
standard screening policy “do not amount to a violation of hospital policy,” and do
not violate EMTALA).
“This standard [for appropriate screening] is consistent with
Congress’s purpose in enacting EMTALA, which was to limit the ability of
hospitals to avoid treating poor or uninsured patients,” Jackson, 246 F.3d at 1256,
and addresses the scenario where a hospital “intentionally fail[s] to diagnose an
emergency medical condition in order to avoid EMTALA’s stabilization
requirement.” Bryant, 289 F.3d at 1166 n.3. The overall test for appropriate
screening is whether the screening procedure “is designed to identify an
‘emergency medical condition,’ that is manifested by ‘acute” and ‘severe’
symptoms,” not “whether the procedure was adequate as judged by the medical
profession.” Eberhardt, 62 F.3d at 1258. Indeed, EMTALA does not provide
redress for negligent diagnosis by a hospital or physician, as a medical malpractice
claim might, Bryant, 289 F.3d at 1166 (collecting cases), and negligent or faulty
screening is not enough to violate EMTALA. Jackson, 246 F.3d at 1256
(collecting cases).
14
As to the duty to “stabilize,” EMTALA provides that where “the
hospital’s medical staff determines that there is an emergency medical condition,
then . . . the staff must ‘stabilize’ the patient before transferring or discharging the
patient.” Bryant, 289 F.3d at 1165 (citing 42 U.S.C. § 1395dd(b)(1); Baker, 260
F.3d at 992). EMTALA defines “to stabilize” as “to provide such medical
treatment of the condition as may be necessary to assure, within reasonable
medical probability, that no material deterioration of the condition is likely to
result from or occur during the transfer of the individual from a facility[.]” 42
U.S.C. § 1395dd(e)(3)(A). Transfer includes both discharge and movement to
another facility. Id. § 1395dd(e)(4).
The duty to stabilize extends to “only those emergency medical
conditions that its staff detects,” such that “a hospital does not violate EMTALA if
it fails to detect or if it misdiagnoses an emergency condition.” Bryant, 289 F.3d
at 1166; Baker, 260 F.3d at 993-94. Further, “EMTALA’s stabilization
requirement ends when an individual is admitted for inpatient care” and the statute
generally ceases to apply once the patient is admitted to the hospital. Bryant, 289
F.3d at 1168. From that point forward, “state tort law provides a remedy for
negligent care.” Id. at 1169.
15
B.
Analysis
In 84 paragraphs spanning 31 pages, the FAC asserts claims based on
both inappropriate screening and failure to stabilize and/or transfer. Despite the
FAC’s length, much of it simply parrots the basic contours of inappropriate
screening and failure to stabilize and/or transfer claims.
For example, as to Plaintiff’s inappropriate screening claims, the FAC
asserts that the screening examinations provided by the ER on May 24 and 27,
2012 were not appropriate because they were “not designed to identify the acute
and severe symptoms presented as to alert the Emergency Department staff of the
need for immediate medical attention to prevent the serious bodily injury which
resulted” from Plaintiff’s necrotizing fasciitis. Doc. No. 21, FAC ¶ 12; see also id.
¶¶ 24, 28, 37. The FAC also alleges that “Defendant hospital provided a medical
screening examination that was not comparable to other patients with similar
symptoms, and [Plaintiff] was provided a screening materially different than other
patients similarly situated.” Id. ¶ 14; see also id. ¶ 29.
With respect to Plaintiff’s stabilization and/or transfer claims, the
FAC further asserts that “Defendant Hospital cannot contend it determined that
[Plaintiff] had an emergency medical condition . . . If so, Defendant violated 42
U.S.C. § 1395dd(b) by failure to provide further examination and treatment
16
required to stabilize the medical condition, or to transfer Plaintiff to another
medical facility.” Id. ¶ 61; see also id. ¶ 63. The FAC also asserts that
“[s]tabilization was denied because Defendant Hospital’s pretextual, costconscious examinations failed to provide stabilizing treatment (or transfer to
another facility) for just some of [Plaintiff’s] cumulative, and . . . extremely
obvious symptoms of necrotizing fasciitis[.]” Id. ¶ 65; see also id. ¶ 28.
These conclusory statements and recitations of EMTALA’s
prohibitions are insufficient to allege a plausible claim. See Iqbal, 556 U.S. at
678; see also Somers v. Apple, Inc., 729 F.3d 953, 959-60 (9th Cir. 2013) (holding
that plausibility requires the pleading of facts, not conclusory allegations or a
formalistic recitation of the cause of action’s elements). The court therefore sets
aside the FAC’s many conclusory assertions and recitations of elements, and
analyzes whether the factual allegations assert a plausible violation of EMTALA
under any theory.
1.
Inappropriate Screening
Based on the following, the court finds that Plaintiff has failed to
allege a plausible inappropriate screening EMTALA claim based on cursory
examination, disparate treatment, or failure to follow procedures.
17
a.
Cursory examination
The FAC asserts that Defendants provided Plaintiff a cursory
examination, as shown by (1) Defendants’ failure to diagnose his necrotizing
fasciitis, and (2) Defendants’ failure to provide him with several specific screening
and treatment procedures. Doc. No. 21, FAC ¶¶ 13-14, 20, 23. The court finds
these allegations fail to allege a plausible EMTALA violation.
As to his failure to diagnose allegation, the FAC asserts that during
both his May 24 and 27, 2012 ER visits, Plaintiff met the relevant criteria for
necrotizing fasciitis, and the fact that Defendants did not properly diagnose his
necrotizing fasciitis “demonstrate[s] that the medical screening by Defendant’s
[ER] . . . was not appropriate.”3 Id. ¶¶ 12-13; see also id. ¶ 28. These allegations,
however, do not assert a plausible EMTALA claim -- Defendants cannot incur
EMTALA liability for what is merely an incorrect diagnosis. See Bryant, 289 F.3d
at 1166. Rather, an EMTALA claim based on cursory screening requires Plaintiff
to allege facts establishing that Defendants failed “to identify acute and severe
3
The FAC asserts that the relevant criteria for necrotizing fasciitis, met by Plaintiff,
includes high temperature, evidence of trauma, laceration/abrasions or mosquito bites at body
site, hypotension, fever, dehydration and flu-like symptoms, local pain and swelling, elevated
white blood count, and low sodium. Doc. No. 21, FAC ¶ 12.
18
symptoms . . . [to] alert [physicians] of the need for immediate medical attention.”
Eberhardt, 62 F.3d at 1257 (emphasis omitted and added).
As to the specific screening procedures Plaintiff asserts he should
have been provided, the FAC asserts that:
[Defendants] treated Plaintiff differently by withholding
key procedures used with other patients to identify acute
and serve [sic] symptoms of necrotizing fasciitis,
including, without limit, a diagnostic incision to search
for infection, ultrasound of the left foot near the
laceration site, as well as other scans, including an MRI
. . . or CT.
Doc. No. 21, FAC ¶ 23. These allegations are insufficient to state an appropriate
screening claim under EMTALA.
To the extent that Plaintiff asserts an MRI scan was necessary to
provide him with appropriate medical screening, the FAC states that an MRI scan
would have “permitted the visualization of tissue edema in the fasciitis planes for
localization of necrotic tissue and fluid accumulation.” Id. ¶ 23. That is, had an
MRI machine been available, it could have identified tissue edema, necrosis, and
fluid accumulation, id., -- i.e. “acute and severe symptoms that alert [physicians]
of the need for immediate medical attention.” Eberhardt, 62 F.3d at 1257
(emphasis omitted). The FAC also asserts, however, that a nurse told Plaintiff that
the MRI machines were “down.” Doc. No. 21, FAC ¶ 60. As a result, providing
19
Plaintiff with an MRI was not within the hospital’s capability, and Defendants
cannot be liable for failing to administer medical screening that was physically
beyond their ability. See 42 U.S.C. § 1395dd(a) (“[A] hospital must provide for an
appropriate medical screening examination within the capability of the hospital’s
emergency department.”) (emphasis added); see also Baker, 260 F.3d at 995
(“EMTALA explicitly recognizes the differences among the capabilities of
hospital emergency rooms, so the statute limits the screening required to one that
is within the capability of a given emergency department.”).
With respect to the diagnostic incision and ultrasound procedures, the
FAC is silent as to what acute and severe symptoms these procedures could have
revealed. Without such allegations, the FAC fails to provide a plausible basis to
support the inference that these procedures were necessary to identify the severe
and acute symptoms of necrotizing fasciitis. See Eberhardt, 62 F.3d at 1257. In
other words, merely reciting that Defendants should have performed these
procedures, without any explanation of what these procedures would have
revealed, fails to allege a plausible EMTALA claim.
In opposition, Plaintiff asserts that “[t]he emergency screening
examination required on May 24, 2012 was: MRI/CT scans, broad-spectrum
antibiotics biopsy [sic], and/or rapid surgically [sic] debridement of the involved
20
area.” Doc. No. 51, Pl.’s Opp’n at 21. The FAC does not include this allegation,
and in any event, this argument conflates screening with treatment.4 As described
above, the MRI was unavailable. Further, the FAC identifies the use of broadspectrum antibiotics and surgical debridement as treatment necessary to stabilize
necrotizing fasciitis, Doc. No. 21, FAC ¶¶ 20, 69, not as screening procedures
necessary to identify its acute and severe symptoms. And, once again, although
failing to provide this kind of treatment may support a state law tort claim, it is not
enough to state an EMTALA violation. See Bryant, 289 F.3d at 1168-69. As a
result, Plaintiff cannot rest his cursory screening claim on Defendants’ failure to
administer these procedures.
In sum, the court finds that the FAC fails to allege a plausible
EMTALA claim based on cursory screening. In making this determination, the
court recognizes that EMTALA creates a limited cause of action and places a
burden on Plaintiff to identify the symptoms that different screening procedures
would have found and that would have alerted Defendants to the need for
immediate medical attention to prevent serious bodily injury. See Eberhardt, 62
4
In his Opposition, Plaintiff also appears to raise a new claim that the delay in providing
specific screening methods, including an MRI scan, amounts to a failure to screen under
§ 1395dd(a). Doc. No. 51, Pl.’s Opp’n at 20-21. The FAC, however, does not assert such a
claim.
21
F.3d at 1257. And such allegations may not be within the general knowledge of
Plaintiff, raising the possible need for expert input, even at this pleading stage.
But these allegations are nonetheless necessary to take this claim outside the realm
of state malpractice law and bring it within an EMTALA cursory screening claim.
The court therefore GRANTS Defendants’ Motion to Dismiss
Plaintiff’s EMTALA claim based on cursory screening, with leave to amend.
b.
Disparate treatment
The FAC provides four examples of WMH patients who were
properly diagnosed with necrotizing fasciitis, who Plaintiff asserts had similar
symptoms to him. Doc. No. 21, FAC ¶¶ 15-18. The FAC asserts that unlike
Plaintiff, these patients “were provided appropriate screening in that the
examination was designed to identify the acute and severe symptoms presented.”
Id. ¶ 19. The FAC alleges that one of the patients received an MRI after transfer
to another hospital and three of the patients experienced a couple of Plaintiff’s
many symptoms. Compare id. ¶¶ 8, 13, 23, 28, with id. ¶¶ 15-18. The FAC does
not describe any symptoms of the fourth patient. Id. ¶ 16.
These allegations fail to support the plausible inference that Plaintiff
and these four patients had similar symptoms, let alone that Plaintiff’s screening
examination was in any way different. Indeed, the only identified similarity
22
between the patients and Plaintiff is the fact that they were all ultimately
diagnosed with necrotizing fasciitis after first seeking treatment at WMH. See id.
¶¶ 15-18. But the FAC fails to outline what symptoms each patient had, and what
screening procedures Defendants provided to those patients as compared to
Plaintiff. See id. ¶¶ 15-18. As a result, Plaintiff simply has not provided enough
information to make any plausible comparisons.5 See Jackson, 246 F.3d at 1255.
The court therefore GRANTS Defendants’ Motion to Dismiss
Plaintiff’s EMTALA claim based on disparate treatment, with leave to amend.
c.
Failure to follow procedures
The FAC asserts that Defendants violated their procedures and
standards (1) providing that inability to pay for care should not prevent a patient
from receiving medically necessary services; (2) requiring good judgment, high
ethical standards, compassionate and appropriate care; and (3) requiring
Defendants to keep honest and professional records. Doc. No. 21, FAC ¶¶ 45-47.
5
With respect to the MRI scan, the FAC does not assert any facts, aside from the nurse’s
alleged statement, that such a scan is typically offered to patients with symptoms similar to his.
Doc. No. 21, FAC ¶¶ 14, 60. Indeed, only one of Plaintiff’s example patients actually received
an MRI scan, according to the FAC. Id. ¶ 16. And again, EMTALA does not impose liability on
hospitals for failing to provide medical procedures outside their emergency department’s
capacity. See 42 U.S.C. § 1395dd(a); Jackson, 246 F.3d at 1254-55.
Further, at the hearing on the Motion, Plaintiff’s attorney indicated that the other patients’
information was obtained via Google searches about necrotizing fasciitis. Needless to say, the
mere fact that a Google search disclosed that other patients were diagnosed with necrotizing
fasciitis at WMH, standing alone, is not a plausible basis for a disparate treatment claim.
23
Although the FAC does not specify how Defendants allegedly violated each of
these policies, it appears that (1) and (2) are based on Defendants’ provision of
allegedly inappropriate, cursory, and/or disparate treatment, possibly motivated by
Plaintiff’s employment and insurance status.6 See id. ¶¶ 48, 50. In support of (3),
the FAC points to (a) a nurse’s uncharted assertion to Plaintiff on May 24, 2012
that MRI and CT scans are usually used for symptoms such as Plaintiffs; and
(b) the failure to chart Plaintiff’s low blood pressure test taken by the clinic staff
on May 24, 2012. Id. ¶ 47.
These allegations are insufficient to state a plausible claim based on
Defendants’ failure to follow their own procedures -- the policies and standards
identified in the FAC are so vague that they place no clear obligations upon
Defendants, and have no clear relevance to the EMTALA screening claims in this
case. Specifically, the FAC does not establish that any of the polices identified are
screening procedures or are otherwise related to Defendants’ EMTALA obligation
to provide Plaintiff with appropriate medical screening. Cf. Battle v. Mem’l Hosp.
at Gulfport, 228 F.3d 544 (5th Cir. 2000) (discussing claim that hospital failed to
follow standard procedure providing that “[i]nfants and elderly are usually
6
The FAC further asserts that Defendants were aware that if Plaintiff was properly
screened, his hospital stay would have lasted four to six weeks. Doc. No. 21, FAC ¶¶ 50-51.
24
hospitalized if no definitive source for fever/infection” is determined). And
although Plaintiff claims that Defendants violated their standard of care by
discriminating against him because of his employment and insurance status, the
FAC fails to allege any facts establishing that Plaintiff was treated differently
based on his financial status in either of his hospital visits. See Doc. No. 21, FAC
¶¶ 51, 53. Finally, to the extent Plaintiff asserts that Defendants failed to chart his
low blood pressure or the assertion of their nurse, the FAC provides no allegations
explaining how these omissions are linked to Plaintiff’s injury or amount to an
EMTALA claim. See id. ¶¶ 43, 47.
The court therefore GRANTS Defendants’ Motion to Dismiss
Plaintiff’s EMTALA claim based on failure to follow their own procedures, with
leave to amend.
2.
Failure to Stabilize and/or Transfer
The FAC alleges that Defendants violated § 1395dd(b) when they
failed “to provide further examination and treatment required to stabilize
[Plaintiff’s] medical condition, or to transfer Plaintiff to another facility.” Id.
¶¶ 61, 63. The FAC appears to base this claim on Plaintiff’s treatment on May 24
and May 27, 2012, including the failure to transfer Plaintiff to another facility for
an MRI, Defendants’ delays in performing tests to diagnose Plaintiff’s necrotizing
25
fasciitis, treating Plaintiff for necrotizing fasciitis, and transferring Plaintiff. Id.
¶¶ 60, 63-77.
These allegations are insufficient to allege a plausible failure to
stabilize or failure to transfer claim. As to a failure to stabilize, the allegations
regarding the May 24, 2012 ER visit are insufficient because Defendants were
obligated to stabilize only the medical conditions they actually diagnosed, not
what Plaintiff alleges they should have identified. See Eberhardt, 62 F.3d at 1259.
Although Plaintiff asserts that Defendants should have detected his necrotizing
fasciitis, Doc. No. 21, FAC ¶¶ 13, 23, Plaintiff does not allege that Defendants did
diagnose him with necrotizing fasciitis. See id. ¶¶ 13, 22, 61. Rather, Plaintiff
was only diagnosed with a viral infection and an ankle sprain on May 24, 2012,
for which he was treated. Id. ¶¶ 13, 25. Again, EMTALA is not a medical
malpractice statute, and failing to correctly diagnose Plaintiff’s illness does not
give rise to liability under § 1395dd. See Bryant, 289 F.3d at 1165.
Plaintiff has also failed to state a stabilization claim with respect to
his second ER visit on May 27, 2012. His second visit resulted in his admission to
the hospital, see Doc. No. 21, FAC ¶ 68, and as a result, Defendants’ duty to
stabilize Plaintiff ended when he was admitted to WMH. See Bryant, 289 F.3d at
1168.
26
As to a failure to transfer, the FAC asserts that Defendants should
have, but did not, transfer Plaintiff to another facility. Doc. No. 21, FAC ¶¶ 63,
72. This assertion falls outside EMTALA’s transfer provisions -- once an
emergency medical condition is detected, § 1395dd(b) requires hospitals to
stabilize the medical condition or transfer the patient to another facility. 42 U.S.C.
§ 1395dd(b). The facts alleged in the FAC suggest that Defendants elected to
admit Plaintiff to their ER to provide further examination, see Doc. No. 21, FAC
¶¶ 64, 67, and then elected to admit him to the hospital instead of transferring him.
Id. ¶ 68. And, as with his stabilization claim for this visit, any EMTALA
requirement to transfer Plaintiff ended when he was admitted to WMH. See
Bryant, 289 F.3d at 1168.
In opposition, Plaintiff asserts that the delay in admitting him to the
hospital on May 27, 2012 is actionable under § 1395dd(h), which prohibits
hospitals from delaying the provision of medical screening or treatment “in order
to inquire about [a patient’s] method of payment or insurance status.” Doc. No.
51, Pl.’s Opp’n at 29; 42 U.S.C. § 1395dd(h). The FAC, however, does not allege
(that is, set forth any facts) that Defendants delayed treatment or screening in order
to inquire about Plaintiff’s financial status. In fact, the FAC asserts that his status
was known to Defendants almost immediately after he arrived at the ER. Doc. No.
27
21, FAC ¶¶ 9, 10, 27. As a result, the FAC does not state a plausible claim for
violation of § 1395dd(h).
In sum, the court GRANTS Defendants’ Motion to Dismiss as to
Plaintiff’s failure to stabilize and failure to transfer claims, with leave to amend.
V. CONCLUSION
Based on the above, the court GRANTS Defendants’ Motion to
Dismiss with leave for Plaintiff to amend as stated in this Order. By August 17,
2015, Plaintiff may file a Second Amended Complaint. Plaintiff is notified that a
Second Amended Complaint will supersede the FAC. Ferdik v. Bonzelet, 963
F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896
F.2d 1542, 1546 (9th Cir. 1990). After amendment, the court will treat the FAC as
nonexistent. Ferdik, 963 F.2d at 1262. Leave to amend is limited to the claims
addressed in this Order; if Plaintiff wishes to assert any new claims, he must
///
///
///
///
///
///
28
comply with Rules 15 and/or 16. If Plaintiff fails to file a Second Amended
Complaint by August 17, 2015, this action will be closed.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 22, 2015.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
Leimbach v. Haw. Pac. Health, et al., Civ. No. 14-00246 JMS-RLP, Order Granting Defendants’
Motion to Dismiss Complaint, Doc. No. 31
29
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?