Mullins v. Johns-Hopkins Suburban Hospital (JHHC & SHHC) et al

Filing 83

MEMORANDUM OPINION. Signed by Judge Paula Xinis on 10/12/2018. (c/m 10/12/2018 - jf3s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
*
JERRY W. MULLINS,
*
Plaintiff,
*
v.

Civil Action No. PX 16-1113
*

THE UNION MEMORIAL HOSPITAL, INC.,
d/b/a MedStar Union Memorial Hospital
*
Defendant.

*
******
MEMORANDUM OPINION

Pending before the Court is Defendant MedStar Union Memorial Hospital’s motion for
summary judgment. 1 ECF No. 75. Plaintiff Jerry Mullins has opposed the motion, and the
matter is now ripe for decision. See D. Md. Loc. R. 105.2. No hearing is necessary. See D. Md.
Loc. R. 105.6. Upon consideration of the parties’ briefing and the evidence in the record, the
Court GRANTS Defendant’s motion.
I.

Background
The following facts are undisputed. On April 15, 2014, Plaintiff Jerry Mullins’

(“Mullins”) finger was injured by a fan blade. ECF No. 5 ¶8, ECF No. 75 at 2. Mullins traveled
in an ambulance to John’s Hopkins Suburban Hospital (“Suburban”). There, a physician’s
assistant treated Mullins by applying a numbing agent and splinting his injured hand. ECF No. 5
¶17, ECF No. 75-1 at 14. Emergency department physician, Dr. Leonard, then examined
Mullins. ECF No. 75-1 at 24. Suburban is a Level II Trauma center, with on-call orthopedic and
hand specialists. ECF No. 75-1 at 33-39. Dr. Leonard consulted with the first on-call hand
1

This is a consolidated case. Plaintiff initially filed two complaints, docketed as PX 16-1113 and PX 161114. The cases were consolidated on August 4, 2016, with PX 16-1113 as the lead case.

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specialist who was too busy to see Mullins, but suggested contacting the second on-call hand
specialist at Suburban Hospital or transferring Mullins to Medstar Union Memorial Hospital
(“Union Memorial”). The second on-call hand specialist could not be located. Dr. Leonard also
tried to contact the two hand surgeons affiliated with Suburban without success. Dr. Leonard
then discussed Mullins’ medical situation with Dr. Elliot at Union Memorial. Dr. Elliot advised
that after Mullins was seen by a Suburban orthopedic or hand specialist, they should follow up
with Union Memorial to determine the appropriate course of care. ECF No. 75-1 at 33-34.
In the interim, Suburban’s on-call orthopedic surgeon, Dr. Gasho, evaluated Mullins. Dr.
Gasho concluded that Mullins’ hand required surgery and advised Mullins of the risks, benefits,
and alternatives regarding the surgery. ECF No. 75-1 at 20. Mullins consented to the surgery
and did not request a second opinion. ECF No. 75-1 at 20. Mullins’ finger currently has not
returned to full function and is physically deformed. ECF No. 5 ¶¶49, 55.
As a result, Mullins, pro se, brought claims against Suburban and its affiliates, Union
Memorial and its affiliates, and physicians Dr. Feledy (Suburban’s on-call hand specialist), Dr.
Leonard, Dr. Elliot, and Dr. Zimmerman (Union Memorial’s on-call attending physician) for
violations of the Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C.
§ 1395dd, and for medical malpractice. See ECF. No. 49 at 3-4 (describing claims). On
February 6, 2017, the Court dismissed all claims against all defendants except for the EMTALA
claim against Union Memorial. ECF No. 49.2 At the close of discovery, Union Memorial
moved for summary judgment. ECF No. 75. Union Memorial argues that Mullins’ EMTALA
claim fails as a matter of law. For the reasons articulated below, the Court agrees.

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Mullins’ medical malpractice claims were dismissed without prejudice for failure to first file his action
with Maryland’s Health Care Alternative Dispute Resolution Office. Those claims are now pending in the Circuit
Court for Montgomery County, Case No. 449865V (filed June 1, 2018).

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II.

Standard of Review
Summary judgment is appropriate when the court, viewing the evidence in the light most

favorable to the non-moving party, finds no genuine disputed issue of material fact, entitling the
movant to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). “A party opposing
a properly supported motion for summary judgment ‘may not rest upon the mere allegations or
denials of [his] pleadings,’ but rather must ‘set forth specific facts showing that there is a
genuine issue for trial.’” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522
(4th Cir. 2003) (quoting former Fed. R. Civ. P. 56(e)). “A mere scintilla of proof . . . will not
suffice to prevent summary judgment.” Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003).
Importantly, “a court should not grant summary judgment ‘unless the entire record shows a right
to judgment with such clarity as to leave no room for controversy and establishes affirmatively
that the adverse party cannot prevail under any circumstances.’” Campbell v. Hewitt, Coleman
& Assocs., Inc., 21 F.3d 52, 55 (4th Cir. 1994) (quoting Phoenix Sav. & Loan, Inc. v. Aetna
Casualty & Sur. Co., 381 F.2d 245, 249 (4th Cir. 1967)). Where the party bearing the burden of
proving a claim or defense “fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at
trial,” summary judgment against that party is likewise warranted. Celotex, 477 U.S. at 322.
Although a pro se party is “given some latitude,” he may not avoid summary judgment by
“relying on bald assertions and speculative arguments.” Mansfield v. Kerry, No. DKC 15-3693,
2016 WL 7383873, at *2 (D. Md. Dec. 21, 2016) (citing Smith v. Vilsack, 832 F. Supp. 2d 573,
580 (D. Md. 2011)).

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III.

Discussion
The Court previously allowed Mullins’ claim against Union Memorial to proceed under

EMTALA’s “nondiscrimination” provision, on the theory that Union Memorial violated
EMTALA when it refused to accept Mullins as an “urgent transfer request.” ECF No. 49 at 910. Now, Union Memorial argues broadly that Mullins’ case falls outside EMTALA because
Mullins was stabilized at Suburban, contending that no duty attaches to any medical provider
under the Act once a patient is stable. Alternatively, Union Memorial contends that EMTALA
does not reach this case because Union Memorial did not have any more specialized forms of
care than did Suburban, nor did it have the capacity to accept Mullins as a transfer. Finally,
Union Memorial argues that it did not “decline” Mullins as a patient, but instead offered to
consult on his care.
“EMTALA was passed by Congress in 1986 in response to a growing concern that
hospitals were ‘dumping’ patients unable to pay, by either refusing to provide emergency
medical treatment or transferring patients before their emergency conditions were stabilized.”
Brooks v. Maryland Gen. Hosp., Inc., 996 F.2d 708, 710 (4th Cir. 1993). Notably, “[t]he Act
was not designed to provide a federal remedy for misdiagnosis or general malpractice,” but
rather to ensure that hospitals will provide emergency care to all. Id. See also Baber v. Hosp.
Corp. of Am., 977 F.2d 872, 880 (4th Cir. 1992) (“The avowed purpose of EMTALA was not to
guarantee that all patients are properly diagnosed, or even to ensure that they receive adequate
care, but instead to provide an ‘adequate first response to a medical crisis’ for all patients[.]”
(quoting 131 Cong. Rec. S13904 (Oct. 23, 1985))).
In addition to the “anti-dumping” provisions that require hospitals to screen and stabilize
patients who present to the emergency department for treatment, 42 U.S.C. § 1395dd (a)–(b),

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EMTALA includes a “nondiscrimination” provision which expressly provides that “participating
hospitals” with “specialized capabilities or facilities,” may not refuse “an appropriate transfer of
an individual who requires such specialized capabilities or facilities if the hospital has the
capacity to treat the individual.” 42 U.S.C. § 1395dd (g). Known also as the “reverse-dumping”
provision of EMTALA, hospitals with such “specialized capabilities” must not refuse transfer if
such hospital can provide such necessary services. See Ercan E. Iscan, Emtala's Oft-Overlooked
"Reverse Dumping" Provision and the Implications for Transferee Hospital Liability Following
St. Anthony Hospital, 82 Wash. U. L.Q. 1201, 1202 (2004).
Accordingly, assuming that Mullins has demonstrated his condition was not stable and
thus warranted transfer, he must also show that Union Memorial, as the putative receiving
hospital, possessed “specialized capabilities” relative to the transferring hospital. St. Anthony
Hosp. v. U.S. Dep’t of Health & Human Servs., 309 F.3d 680, 701 (10th Cir. 2002). Assuming
without deciding that Union Memorial is a “participating hospital,” and thus covered under
EMTALA, Mullins has failed to put forward sufficient evidence to survive summary judgment.
The record evidence reflects that Suburban retained on-call hand specialists and orthopedic
surgeons. ECF No. 75-1 at 33-39. Indeed, that Mullins had his surgery performed by an
orthopedic surgeon at Suburban further supports the relative parity of the two hospitals. 3
Viewing the evidence most favorably to Mullins, he cannot show that Suburban was lacking
such “specialized capabilities.”
Attempting to generate a genuine dispute of fact in this regard, Mullins submits Union
Memorial’s webpage to highlight claimed material differences between it and Suburban. ECF
No. 81-10. Although this website touts Union Memorial’s accomplishments and expertise in the
3

The Court expresses no opinion on whether the surgery was performed within the standard of care, which
is the subject of Mullins’ separate medical malpractice action. Indeed, “EMTALA is no substitute for state law
medical malpractice actions.” Baber, 977 F. 2d at 880.

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relevant field, it offers nothing to advance that Suburban lacked similar specialized capabilities.
Mullins also concedes that Suburban is a Level II Trauma Center with both orthopedic and hand
specialists on call. ECF No. 81-1 at 3. Because Mullins has not generated sufficient evidence
showing Union Memorial is any more “specialized” than Suburban, the EMTALA claim fails.
See St. Anthony, 309 F.3d at 701 (affirming a finding that “Congress intended th[is] term to
encompass those capabilities and facilities which enable a hospital to offer specialized care that
is not offered by hospitals that are less well-endowed[.]”).
Alternatively, Union Memorial contends that even if Mullins could demonstrate that the
hospital was a “specialized facility,” the record evidence viewed most favorably to Mullins
shows that Union Memorial lacked the capacity to treat him. Federal regulations implementing
EMTALA define capacity as “the ability of the hospital to accommodate the individual
requesting examination or treatment of the transferred individual. Capacity encompasses such
things as numbers and availability of qualified staff, beds and equipment and the hospital’s past
practices of accommodating additional patients in excess of its occupancy limits.” 42 C.F.R. §
489.24 (2013). See St. Anthony, 309 F.3d at 701 (applying this regulatory definition). Union
Memorial’s on-call fellow, Dr. Elliot, attests without contradiction that at the time he received
the call about Mullins, Union Memorial’s hand specialists were also called to operate on a multidigit amputation case which would have been triaged as a higher priority than Mullins if he had
been accepted as a patient. ECF No. 75-1 at 35. Because of this other surgery, Mullins would
not have received treatment at Union Memorial until the next day. Id. In contrast, the
orthopedic surgeon at Suburban operated on Mullins just a few hours after admission. ECF No.
75-1 at 22, ECF No. 81-1 at 4. Because Mullins has not generated any evidence to challenge

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Union Memorial’s demonstrated lack of capacity to treat him, the EMTALA claim cannot
survive. ECF No. 81 at 13-14. Summary judgment is granted in Union Memorial’s favor. 4
IV.

Conclusion
For the foregoing reasons, Defendant Union Memorial’s motion for summary judgment is

GRANTED. A separate order follows.

October 12, 2018
Date

/S/
Paula Xinis
United States District Judge

4

Because the EMTALA claim fails for the reasons discussed above, the Court declines to reach Union
Memorial’s alternative argument as to whether Dr. Leonard’s call to Union Memorial constituted a transfer request
rather than a consultation call.

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