Vance v. McCurtain Memorial Hospital et al

Filing 8

ORDER by Judge Frank H. Seay granting 6 Motion to Remand. (case terminated) (Documents Terminated: 6 MOTION to Remand and Brief in Support ) (trl, Chambers)

Vance v. McCurtain Memorial Hospital et al

Doc. 8

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA BARBARA VANCE, as Personal Representative of the Estate of JOYCE JESSIE, Deceased, Plaintiff, v. MCCURTAIN MEMORIAL HOSPITAL, MCCURTAIN MEMORIAL MEDICAL MANAGEMENT, INC., and WILLIAM J. HARRISON, D.O., and CREATE A STOREHOUSE, L.L.C. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. CIV-10-282-FHS

ORDER AND OPINION This matter is before the Court on Plaintiff's Motion to Remand (Dkt. No. 6) pursuant to 28 U.S.C. § 1447(c). Plaintiff contends this medical malpractice action should be remanded to the District Court of McCurtain County, Oklahoma, as federal question jurisdiction Defendant, pursuant to 28 U.S.C. § 1331 does not exist. McCurtain Memorial Medical Management, Inc., d/b/a

McCurtain Memorial Hospital ("MMH"), removed this action on July 29, 2010, claiming this Court has federal question jurisdiction because Plaintiff has pursued a claim against MMH under the Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd, et seq. For the reasons stated below, the Court This action finds the removal of this action was inappropriate. Oklahoma.

should be remanded to the District Court of McCurtain County,

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Dockets.Justia.com

BACKGROUND On October 28, 2008, Plaintiff filed a Petition in the District Court of McCurtain County, Oklahoma, against MMH and Defendant, William J. Harrison, D.O. ("Harrison"), alleging the defendants' medical negligence resulted in the wrongful death of Joyce Jessie on March 13, 2007. and adding Create A On March 2, 2009, Plaintiff filed L.L.C. ("Storehouse") as a an Amended Petition asserting the same medical negligence claims Storehouse, defendant. As acknowledged by MMH, neither the Petition nor the In particular, neither the Petition

Amended Petition contain any allegations supporting the exercise of federal court jurisdiction. EMTALA. On June 17, 2010, MMH filed a motion to strike the testimony of Plaintiff's expert, Dr. Robert Bitterman ("Dr. Bitterman"), on the basis that Dr. Bitterman did not provide any medical standard of care testimony during his deposition.1 Bitterman's testimony should have been MMH contended that Dr. stricken because Dr. nor the Amended Petition include any claim for violations of

Bitterman, an emergency medicine/EMTALA expert, only testified as to MMH's policies and procedures designed to comply with EMTALA. Because Dr. Bitterman did not testify as to the standard of care provided by MMH and because no EMTALA claim was presented on the face of either the Petition or the Amended Petition, MMH moved to strike Dr. Bitterman's testimony. In her response filed on July 2, 2010, Plaintiff stated that Dr. Bitterman's testimony was clearly proper in that she was asserting MMH violated EMTALA and her "EMTALA CLAIM IS A SEPARATE FULLY SUPPORTED ELEMENT OF HER CASE."

MMH, Harrison, and Storehouse also moved for summary judgment. 2

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Plaintiff's Response to Motion to Strike, p. 3 (Exhibit 3 to MMH's Response to Plaintiff's Motion to Remand (Dkt. No. 7))(emphasis in original). On July 12, 2010, Judge Willard Driesel of the District Court of McCurtain County, Oklahoma, conducted a hearing on the Motion to Strike. At the hearing, Plaintiff clarified her position by stating that her claims were limited to those brought under state common law and that she did not intend to pursue any claims under EMTALA. At the conclusion of the hearing, Judge Driesel denied MMH's Motion to Strike and found that "[n]o cause of action under federal law is stated" by Plaintiff.2 ANALYSIS In support of her request for remand, Plaintiff argues that this action does not "arise[] under the Constitution, laws, or treaties of the United States" for purposes of federal question jurisdiction under 28 U.S.C. § 1331 as she has asserted only state law claims for medical negligence.3 Plaintiff contends she has

The motions for summary judgment filed by MMH, Harrison, and Storehouse were also denied. The Court notes the failure of Defendants Harrison and Storehouse to join in the removal. Generally, a remand is appropriate if all defendants have not joined in the removal petition. Akin v. Ashland Chemical Co., 156 F.3d 1030, 1034 (10th Cir. 1998). An exception to this "unanimity rule," however, allows for removal without unanimous joinder under circumstances involving a separate and independent claim conferring federal question jurisdiction. 28 U.S.C. § 1441(c); see Urban Renewal Authority of City of Trinidad, Colo. v. Daugherty, 271 F.Supp. 729, 731 (D. Colo. 1967)("recognized exception [to unanimity rule] permits removal without unanimous joinder where the claims are separate and independent"). An EMTALA claim supporting federal question jurisdiction would be limited to MMH, as a participating hospital, and thus it would qualify as a separate and independent claim from those asserted against Harrison and Storehouse. Under those circumstances, 3
3

2

chosen

not

to

bring

any

claims

against

MMH

under

EMTALA

as

evidenced by both the Petition and Amended Petition filed in the state court and her declarative statement before the state court that she did not intend to pursue any EMTALA claims. Plaintiff argues that under the "well-pleaded complaint" rule she is the master of her complaint and she is entitled to avoid federal court jurisdiction by asserting only state law medical negligence claims against Defendants. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)(plaintiff is the "master of the claim" and may prevent removal by choosing not to plead an available federal claim). claims In response, MMH contends Plaintiff's use of purported is a "thinly veiled attempt to circumvent federal EMTALA violations to support her common law medical negligence jurisdiction" and under the "complete preemption" doctrine any analysis and interpretation of a purported EMTALA regulation, arising from the testimony of Dr. Bitterman, invests this Court with subject matter jurisdiction. Under the "well-pleaded complaint" rule for evaluating whether a case arises under federal law, removal is proper "only when the plaintiff's statement of his own cause of action shows that it is based" on federal law. Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152 (1908). In this matter, it is clear that no federal claim appears on the face of either Plaintiff's state court Petition or Amended Petition as neither document contains any reference to the "Constitution, laws, or treaties of the United States," including Petition; EMTALA. this Plaintiff has asserted purely state Court is without subject matter law claims for medical negligence in her Petition and Amended consequently,

joinder in the removal petition by Harrison and Storehouse is not necessary. 4

jurisdiction based on Plaintiff's well-pleaded complaint. The doctrine of "complete preemption" operates as an exception or corollary to the "well-pleaded complaint" rule and authorizes removal jurisdiction under certain rare circumstances where "the preemptive power of a statute is so `extraordinary' that it `converts an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.'" Lamm v. Bekins Van Lines Co., 139 F.Supp.2d 1300, 1304 (M.D. Ala. 2001)(citing Metropolitan Life Insurance Company v. Taylor, 482 U.S. 58, 65 (1987)). is completely negligence claims. Thus, this court must decide whether EMTALA of Plaintiff's state law medical See Schmeling v. Nordham, 97 F.3d 1336, 1338 preemptive

(10th Cir. 1996)(propriety of removal jurisdiction in case where state court petition raises no federal question claims hinges on whether federal law asserted by defendant "completely" preempts the state law claims, as opposed to whether the defendant's "ordinary" preemption defense constitutes a valid defense to the state law claims). In Schmeling, the Tenth Circuit Court of Appeals adopted a two-part test for determining whether removal of a case is proper under the "complete preemption" rule. Id. at 1343. Under this test, the court evaluates (1) whether the federal law preempts the state laws relied on and (2) whether Congress has provided a federal cause of action to enforce the federal law, thus revealing an intent to allow removal in such cases. Id. While an intent to allow removal of cases asserting EMTALA claims can be found in the statute's provision for a cause of action relating to screening, stabilizing treatment, and transfer violations, 42 U.S.C. §

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1395dd(d)(2)(A)4, EMTALA's provision regarding the interplay with state law unequivocally demonstrates that EMTALA does not preempt state medical negligence laws, to the extent that such laws do not conflict with EMTALA regulations. 1395dd(f) provides: (f) Preemption The provisions of this section do not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section. This provision of EMTALA "makes pellucidly clear that Congress had no intention of providing the exclusive cause of action for claims relating to screening, stabilizing treatment, and transfer restrictions for persons with emergency medical conditions or who are in labor when it enacted EMTALA." McCullough v. River Region Rather than Medical Center, 2008 WL 2157118 (S.D. Miss. 2008). In this respect, 42 U.S.C. §

being completely preemptive of state law claims covering the same subject, "EMTALA is complementary to state tort remedies for malpractice in the sense that it `create[s] a remedy for patients in certain contexts in which a claim under state medical malpractice law was not available.'" Zinn v. Valley View Hospital, 2010 WL 301860 (E.D. Okla. 2010)(quoting Reynolds v. Maine General Health, 218 F.3d 78, 83 (1st Cir. 2000)). Consequently, since EMTALA does not completely preempt state medical negligence claims, MMH's removal of Plaintiff's state medical negligence claims was improper. negligence See McCullough, 2008 WL 2157118 (removal of medical claim based on allegations of EMTALA violations

Section 1395dd(d)(2)(A) authorizes a private right of action to "[a]ny individual who suffers personal harm as a direct result of a participating hospital's violation of a requirement of this section." 6

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contained in expert designation and discovery responses not proper as EMTALA is not completely preemptive of state law claims). Finally, to the extent MMH is arguing that Plaintiff's claims arise under federal law because they depend on the resolution of a substantial question of federal law, i.e. EMTALA regulations for the provision of care in hospital emergency rooms, removal is nonetheless inappropriate. In limited circumstances, jurisdiction may be triggered in federal court over "federal issues embedded in state-law claims." Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg'g, 545 U.S. 308, 314 (2005). Under Grable, federal jurisdiction over a state law claim which implicates federal issues is appropriate if such claim "necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities." Id. This standard is met in only a "special and small category" of cases. Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 699 92006). This is not such a case as no substantial question of Here, Plaintiff's state law medical federal law is present.

negligence claims are not dependent on the resolution of the appropriate interpretation and relevance of EMTALA regulations governing emergency room procedures. Plaintiff may ultimately See 140 prevail on her medical negligence claims by relying on expert standard of care testimony unrelated to EMTALA requirements. Sercye-McCollum v. Ravenswood Hospital Medical Center,

F.Supp.2d 944, 946 (N.D. Ill. 2001)(use of EMTALA violation to support state law medical negligence claims does not justify removal as "plaintiffs need not prove that defendants violated the EMTALA in order to prevail"). To the extent issues of interpretation and relevance need to be resolved in the context of EMTALA regulations, however, the state court is quite competent to 7

resolve those issues.

The mere mention of EMTALA regulations in

the state court proceedings, or the fact that such regulations may need to be interpreted by the state court, does not necessarily equate with the existence of a substantial question of federal law. See Williams v. Edcare Management, Inc., 2008 WL 4755744, at *6 (E.D. Tex.)(where state court petition asserts traditional common law claims, federal question jurisdiction not conferred "[e]ven if Plaintiff's causes of action require the court to interpret EMTALA") and First Pryority Bank v. F&M Bank & Trust Company, 2010 WL 3547431 (N.D. Okla.)(interpretation and application of federal banking regulation does not equate with substantial federal issue in action for common law conversion). result in the balance between To hold otherwise would and state court federal

responsibilities being disturbed by the opening of federal courts to any state court action touching upon or mentioning federal law. Id. at *5, n. 9. CONCLUSION Based on the forgoing reasons, Plaintiff's Motion to Remand (Dkt. No. 6) is granted. Oklahoma. It is so ordered this 4th day of October, 2010. The Clerk of the Court is directed to remand this case to the District Court of McCurtain County,

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