FREEDMAN et al v. FISHER et al

Filing 101

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE J. WILLIAM DITTER, JR ON 2/2/15. 2/3/15 ENTERED AND COPIES E-MAILED.(kw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GARY FREEDMAN, et al.
Plaintiffs
v.
STEVEN FISHER, M.D., et al.
Defendants

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CIVIL ACTION

No. 13-3145

MEMORANDUM
An appropriate federal law addresses the problem of “patient dumping,” a practice
of some hospitals that, for economic and other reasons, sent prospective patients to
another institution without first evaluating that patient’s needs. In brief, the law known as
the Emergency Treatment and Labor Act (“EMTALA”), provides that whatever the
hospital’s protocol may be for a given condition, every patient must receive the same
tests, evaluation, care, and treatment as every other patient with the same condition. In
addition, the hospital must stabilize any known emergency medical condition prior to
transfer of a patient to another facility. Notwithstanding, EMTALA does not create a
federal cause of action for malpractice. Presently before me are cross motions for
summary judgment along with responses and sur-replies related to Plaintiffs’ claim under
that law.
Defendant Abington Memorial Hospital (“AMH”) argues that summary judgment
should be entered in its favor on the plaintiffs’ claims brought under EMTALA, 42
U.S.C. § 1395dd(a), as pled by plaintiffs in Count XI of the Amended Complaint. In

support thereof, AMH contends that the plaintiffs’ EMTALA claim is time-barred by the
statute of limitations and that undisputed material facts demonstrate that the plaintiffs’
EMTALA claim is legally insufficient.
In their cross-motion, the plaintiffs also move for summary judgment on the
EMTALA claim. Plaintiffs argue that judgment should be entered in their favor as there
is no genuine dispute as to the material facts which establish an EMTALA violation.
For the reasons that follow, the plaintiffs motion for summary judgment is denied
and AMH’s motion is partially denied and partially granted.
I.

FACTUAL BACKGROUND
I will review the facts once again for clarity’s sake. Abraham Strimber presented

to the emergency department at Abington Memorial Hospital at approximately 11:40 a.m.
with multiple complaints, including chest and abdominal pain. Within minutes, Mr.
Strimber was evaluated by an emergency department nurse and then assigned to a primary
nurse. Both nurses documented his complaints, their examinations, and their observations
of Mr. Strimber.
At 12:23 p.m., Mr. Strimber was examined by an emergency department physician,
Steven Fisher, M.D., who made a differential diagnosis and ordered extensive laboratory
tests. At 2:27 p.m., Dr. Fisher discharged Mr. Strimber from the emergency department
and transferred him within the hospital for further observation.
Margo Turner, M.D., who specializes in internal medicine, next observed,

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examined, and ordered further testing. Mr. Strimber was then seen by Dr. Muttreja, a
cardiologist, at 6:30 p.m. Dr. Muttreja noted that he doubted Mr. Strimber suffered from
acute coronary syndrome based upon cardiac markers and an EKG, but recommended an
echocardiogram.1
At 8:30 p.m., the floor nurse alerted Dr. Turner to a dangerous change in Mr.
Strimber’s cardiac condition. Shortly thereafter he was taken to the catheterization lab
where testing revealed pericardial hemorrhage. Mr. Strimber rapidly deteriorated and
despite a series of emergency measures, he died at 10:49 p.m. of a dissecting aorta.2
IIL

STANDARD OF REVIEW
A reviewing court may enter summary judgment where there are no genuine issues

as to any material fact and a party is entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(c). The evidence presented must be viewed in the light most favorable to the
non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574
, 587 (1986). The inquiry is “whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). In
deciding the motion for summary judgment, it is not the function of the court to decide
disputed questions of fact, but only to determine whether genuine issues of fact exist. Id.
1

It does not appear that Mr. Strimber ever received an echocardiogram. See Dep. of Dr.
Turner, 3/18/14 at pp. 99-101.
2

It may have been a ruptured ascending aorta aneurysm. For the present purposes, at least, the
difference is unimportant.

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at 248-49.
The moving party has the initial burden of identifying relevant evidence which it
believes shows an absence of a genuine issue of material fact and supports its claim.
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The moving party’s burden may be
discharged by demonstrating that there is an absence of evidence to support the
nonmoving party’s case. Celotex, 477 U.S. at 325. Once the moving party satisfies its
burden, the burden shifts to the nonmoving party, who must go beyond its pleadings and
designate specific facts, by use of affidavits, depositions, admissions, or answers to
interrogatories, showing that there is a genuine issue for trial. Id. at 324. Moreover,
when the nonmoving party bears the burden of proof, it must “make a showing sufficient
to establish the existence of [every] element essential to that party’s case.” Equimark
Commercial Fin. Co. v. C.I.T. Fin. Servs. Corp., 812 F.2d 141, 144 (3d Cir. 1987)
(quoting Celotex, 477 U.S. at 322). Summary judgment must be granted “against a party
who 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.”
Celotex, 477 U.S. at 322.
III.

DISCUSSION
A.

EMTALA

The cross-motions before me both address the plaintiffs’ EMTALA claim. As I
have previously noted, EMTALA was enacted based on concerns over “patient
dumping”– a practice where hospitals, usually because of economic concerns, either
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refused to treat certain emergency room patients or transferred them to other facilities.
See Torretti v. Main Line Hospitals, 580 F.3d 168, 173 (3d Cir. 2009). The Act contains
several requirements, however, and is not limited to a prohibition against refusing to treat
individuals with emergency conditions based on insurance coverage. “EMTALA requires
hospitals to give certain types of medical care to individuals presented for emergency
treatment: (a) appropriate medical screening, (b) stabilization of known emergency
medical conditions and labor, and (c) restrictions on transfer of unstabilized individuals to
outside facilities.”3 Torretti, 580 F.3d at 172 (citing 42 U.S.C. § 1395dd(a)-(c)). Because
EMTALA does not create a federal cause of action for malpractice, “[l]iability is
determined independently of whether any deficiencies in the screening or treatment
provided by the hospital may be actionable as negligence or malpractice, as the statute
was aimed at disparate patient treatment.” Id. at 174 (internal citations omitted).
1.

Statute of Limitations

AMH first argues that the EMTALA claim is barred by the statute of limitations
while the plaintiffs contend it “relates back” to the original complaint and therefore may

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The screening and stabilization provision in EMTALA are distinct obligations. In order
to establish an EMTALA violation, a plaintiff must show that the hospital either “(a) did not
afford the patient an appropriate screening in order to determine if she had an emergency medical
condition, or (b) bade farewell to the patient (whether by turning her away, discharging her, or
improvidently transferring her) without first stabilizing the emergency medical condition.” See
Correa v. Hospital San Francisco, 69 F.3d 1184, 1190 (1st Cir. 1995).
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proceed.4 As it relates to the instant case, Rule 15(c) sets forth one relevant prerequisite
for an amendment to relate back to the original complaint: “the claims in the amended
complaint must arise out of the same occurrences set forth in the original complaint.”
Arthur v. Maersk, Inc., 434 F.3d 196, 203 (3d Cir. 2006) (citing Fed.R.Civ.P. 15(c)).
“Relation back is structured ‘to balance the interests of the defendant protected by the
statute of limitations with the preference expressed in the Federal Rules of Civil
Procedure in general, and Rule 15 in particular, for resolving disputes on their merits.’”
Glover, 698 F.3d at 145 (citing Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (2010)).
“[A]pplication of Rule 15(c)(1)(B) normally entails a ‘search for a common core of
operative facts in the two pleadings’” Id. (citations omitted). “[I]t is well-established that
the touchstone for relation back is fair notice, because Rule 15(c) is premised on the
theory that a ‘party who has been notified of litigation concerning a particular occurrence
has been given all the notice that statutes of limitations were intended to provide.’” Id.
(citations omitted). “Thus, only where the opposing party is given ‘fair notice of the
general fact situation and the legal theory upon which the amending party proceeds’ will

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EMTALA claims have a two year statute of limitations. Mr. Strimber died on February
22, 2012. The original Complaint was filed on June 7, 2013. The Motion for Leave to Amend
the Complaint in order to plead an EMTALA claim was filed on April 15, 2014, and the Order
granting leave to file the Amended Complaint was filed on May 6, 2014. Because the amended
complaint was filed after the two year statute of limitations had expired, plaintiffs’ EMTALA
claim will be considered timely only if it “relates back” to the time of the filing of the original
Complaint. See Glover v. Federal Deposit Ins. Corp., 698 F.3d 139, 145 (3d Cir. 2012)
(“[w]here an amendment relates back, Rule 15(c) allows a plaintiff to sidestep an otherwiseapplicable statute of limitations, thereby permitting resolution of a claim on the merits, as
opposed to a technicality”).
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relation back be allowed.” Id. (citation omitted).
AMH contends that there is “nothing pleaded [in the original complaint] that
should have alerted AMH that it might have direct statutory liability for failure to comply
with a federal statutory requirement of performance [EMTALA] of an appropriate
screening examination.” Def’s. Mot. for Partial Summ. J. (Doc. #77), at 20. The facts
underpinning an EMTALA claim were pled in the original complaint, i.e, the failure to
adequately screen, examine and treat Mr. Strimber. This gave AMH “fair notice” that an
EMTALA claim was possible. See Glover, 698 F.3d at 146. In their original pleading,
the plaintiffs alleged that on AMH had a duty to “adopt and enforce adequate rules and
policies to ensure quality care for patients” as well as to ensure medical staff perform
“timely and proper patient assessments and/or evaluations.” Pls.’ Compl. ¶ 87. Similarly,
in their amended complaint, the plaintiffs claimed that AMH failed in its duty to “conduct
a full and complete medical screening examination” and failed to “timely determine
whether or not an emergency medical condition existed.” Pls.’ Am. Compl. ¶ 84.
Moreover, the plaintiffs’ EMTALA claim does not differ in “time and type” from the
claims earlier alleged against AMH.
There is no question that the EMTALA claim arises out of the same incident and
set of facts. Contra Glover, 698 F.3d at 147 (finding claim in amended complaint did not
“relate back” when defendants were not given “fair notice” of the basis for liability
asserted against them because amended claim did not arise from the factual occurrences
giving rise to claim in original pleading). Because the plaintiffs’ original complaint
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“adequately notified [AMH] of the basis for liability the plaintiffs would later advance in
the amended complaint,” Glover, 698 F.3d at 146 (citations omitted), AMH’s motion for
dismissal on the ground that the plaintiffs’ EMTALA claim does not relate back to the
filing date of the original complaint is denied.
2.

Failure to Screen

Plaintiffs contend AMH violated EMTALA’s screening provision when Mr.
Strimber was admitted to the hospital’s emergency department. Pl.’s Am. Compl. ¶ 84.
That provision requires a hospital to “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.” 42 U.S.C. §
1395dd(a). Although the statute does not define “appropriate medical screening,” courts
in this Circuit have interpreted the statute as requiring hospitals to provide “uniform
screening to all those who present substantially similar complaints.” Blake v. Main Line
Hospitals, Inc., Civ. No. 12-3456, 2014 WL 1345973, at *3 (E.D. Pa. Apr. 3, 2014); see
also Byrne v. Cleveland Clinic, 519 Fed. Appx. 739, 742 (3d Cir. 2013) (observing that,
under EMTALA, a hospital is free to determine what its screening procedures will be, but
it must “apply them alike to all patients”).
The plaintiffs argue that AMH did not have an established policy or protocol
applicable to a case presenting symptoms such as those exhibited by Mr. Strimber. Pls.’
Resp. in Opp’n to Mot. for Partial Summ. J. (Doc. #83), at 9. Therefore, the plaintiffs
contend they must look to the medical records of similarly situated patients in order to
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determine the “uniform screening” for patients who complain of chest pain in the
emergency room at AMH. Id. at 10. Plaintiffs report that 96 percent of all patients (or
212 of the 221 patient records reviewed) who complained of chest pain received some
form of chest imaging. Id. Thus, the plaintiffs claim that Mr. Strimber’s complaint of
chest pain should have triggered AMH’s protocol for patients who complain of chest pain
and that AMH should have performed a chest x-ray or chest imaging.
AMH counters that Mr. Strimber repeatedly denied chest pain and that the
treatment provided to him provided appropriate medical screening for a patient exhibiting
his myriad of symptoms.5 In support thereof, it notes the protocol entitled “Policy
Regarding Myocardial Infarction,” applies to Mr. Strimber’s case. Def’s. Mot. for Partial
Summ. J. (Doc. #77), at 8. AMH notes that this policy does not require a physician or
other caregivers to order a chest X-ray for patients with chest pain. Id. Instead, the
results of an electrocardiogram (“EKG”) are evaluated to rule out the possibility of an
acute myocardial infarction and to address the need for further testing. Id.
I conclude that there is a material issue of fact as to whether AMH had an
appropriate protocol or standard screening procedure for a patient presenting with Mr.
Strimber’s complaints and whether the protocol/screening procedure was followed in Mr.
Strimber’s case. Complicating that decision is the issue of Mr. Strimber’s alleged chest

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Mr. Strimber’s emergency room records indicate that AMH was aware that Mr.
Strimber was allergic to “iodinated contrast” and “iodinated radiocontrast agents.”
Consequently, he was unable to receive any testing with contrast. He received a CT scan,
without contrast, of his abdomen and pelvis at 1:36 p.m.
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pain complaints. AMH argues that Mr. Strimber repeatedly denied chest pain to
healthcare professionals. However, there are numerous conflicts in the medical record
and deposition testimony regarding complaints of chest pain. For example, Dr. Fisher,
the initial emergency room treating physician, testified at his deposition that he did not
believe that Mr. Strimber suffered from chest pain; however, his treatment notes and
orders include references to chest pain. See Pls.’ Mot. for Partial Summ. J. (Doc. #78), at
Ex. “A,” “H.” Moreover, although Dr. Turner testified that Mr. Strimber did not
specifically complain of chest pain to her, she also stated “I believe [Mr. Strimber] had
chest pain.” Dep. of Dr. Turner, 3/18/14 at p. 54:19-20. AMH contends that the initial
indication of chest pain in Mr. Strimber’s medical record was merely transcribed by a
clerk during his emergency room registration. Dep. of Dr. Fisher, 2/24/14 at p. 155-156.
AMH also points out that notations of chest pain by Drs. Fisher and Turner were not
based on actual complaints but were in the record to provide a reason to obtain a
particular test or cardiology consult. Def’s. Mot. for Partial Summ. J., at 15. At the very
least, these conflicts between deposition testimony and Mr. Strimber’s medical record are
issues of material fact to be weighed by a jury.
Because the record contains conflicting evidence regarding Mr. Strimber’s
complaints of chest pain, there is an issue of material fact regarding AMH’s perception of
Mr. Strimber’s emergency condition and whether the medical screening performed was
appropriate. This issue will be resolved by weighing the evidence and evaluating

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witnesses - an issue which must be resolved by a jury.6
3.

Failure to Stabilize

The plaintiffs also argue that AMH had a duty to stabilize his condition before
moving him out of the emergency room. Under EMTALA, if a hospital determines that
an “individual at a hospital has an emergency medical condition which has not been
stabilized [], the hospital may not transfer the individual.” 42 U.S.C. § 1395dd(c)(1). In
order to prevail on a “failure to stabilize” claim, the plaintiffs must establish that Mr.
Strimber: “(1) had ‘an emergency medical condition; (2) the hospital actually knew of

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AMH argues that the recent case of Moore v. Grand View Hospital, 2014 WL 6676535
(E.D. Pa. Nov. 24, 1014) (Tucker, C.J.), supports its contention that the plaintiffs have failed to
establish a claim under EMTALA; however, Moore is distinguishable. Rachel Moore was 38 6/7
weeks pregnant when she was admitted to Grand View Labor and Delivery Unit for testing. The
attending physician, Michael Chmielewski, M.D., conducted electronic fetal monitoring, blood
pressure tests and a urinalysis, but did not screen Mrs. Moore for preeclampsia, a pregnancy
complication affecting both mother and child. Dr. Chmielewski discharged Mrs. Moore after
several hours. Two days later, Mrs. Moore delivered a stillborn baby girl. Testing indicated that
preeclampsia was the presumptive cause of baby girl Moore’s death. In granting Grand View
Hospital’s motion for summary judgment on the plaintiff’s EMTALA claim, Judge Tucker
concluded that Grand View had followed its standard screening procedure in treating Mrs.
Moore. The plaintiffs’ allegation that Mrs. Moore’s treating physician should have tested her for
preeclampsia ultimately failed because Dr. Chmielewski did not perceive Mrs. Moore as a patient
presenting with preeclampsia or any other medical emergency. Judge Tucker opined that “Dr.
Chmielewski and Grand View performed medical screening on Mrs. Moore consistent with Dr.
Chmielewski[‘s] perception of Mrs. Moore’s medical condition at the time she was admitted to
Grand View.” Id. at 7 (emphasis in original). In the instant case, as previously discussed, there
is a question of fact as to Mr. Strimber’s treatment providers’ perception of his complaints.
Indeed, although Mr. Strimber repeatedly denied having chest pain, Dr. Turner testified at her
deposition that she admitted Mr. Strimber because a “61-year-old man with a history of aortic
valve surgery complaining of chest pain in triage and having abdominal pain is someone who
warrants admission for further evaluation.” See Dep. of Margo E. Turner, M.D., (3/18/14, at
114-115). Because there is some evidence that Mr. Strimber’s treatment providers perceived him
as a patient with chest pain, there is an issue of fact as whether he received appropriate medical
screening. Thus, Moore is not persuasive.
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that condition; [and] (3) the patient was not stabilized before being transferred.” Torretti,
580 F. 3d at 178 (citing Baber v. Hosp. Corp. of Am., 977 F.2d 872, 883 (4 th Cir. 1992)).
Although the plaintiffs contend that Mr. Strimber was “discharged” to the observation
unit, their arguments are unconvincing. For purposes of EMTALA, the term “transfer”
means the movement, including the discharge, of an individual to a facility outside the
hospital. 42 U.S.C. § 1395dd(e)(4). Dr. Fisher’s decision to move Mr. Strimber out of
the emergency room and into an observation unit is not a “transfer” as specifically
defined under EMTALA. Mr. Strimber never left AMH’s facility; therefore, he was not
“discharged.” Because Mr. Strimber was never “transferred” from AMH’s facility, the
plaintiffs have failed to establish a “failure to stabilize” claim under EMTALA. As a
result, judgment is entered in favor of AMH with respect to the plaintiffs failure to
stabilize claim.

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