Cintron-Figueroa et al v. Servicios de Salud Episcopales, Inc. et al
Filing
123
OPINION AND ORDER denying 103 MOTION for Summary Judgment filed by Servicios de Salud Episcopales, Inc. Signed by Judge Jay A Garcia-Gregory on 08/08/2011.(DPS)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JAVIER FRANCISCO CINTRONFIGUEROA, et al.,
Plaintiffs
CIVIL NO. 10-1008 (JAG)
v.
SERVICIOS DE SALUD EPISCOPALES,
et al.,
Defendants
OPINION AND ORDER
GARCIA-GREGORY, D.J.
Before the Court is a Motion for Summary Judgment filed by
Hospital Episcopal San Lucas (Docket No. 103). For the reasons
set forth below, the motion is hereby DENIED.
PROCEDURAL BACKGROUND
On
January
11,
2010,
Minor
Javier
F.
Cintrón
Figueroa,
along with other members of his family, (“Plaintiffs”) filed a
complaint
against
Hospital
Episcopal
San
Lucas
(“HESL”),
Dr.
Pura Maldonado Feliciano (“Dr. Maldonado”), Dr. Lydia Irizarry
González (“Dr. Irizarry”), Dr. José Panelli (“Dr. Panelli”) and
the Sindicato de Aseguradoras para la Subscripcion Conjunta de
Seguros
de
Responsabilidad
Médico-Hospitalaria
(“SIMED”).
Civil No. 10-1008 (JAG)
2
(Docket No. 1). According to the Second Amended Complaint, when
plaintiff Javier F. Cintrón Figueroa went to HESL’s emergency
room (“ER”) on July 12, 2010 he was not screened and stabilized
properly in violation of the Emergency Medical Treatment and
Active Labor Act (“EMTALA”), 42 U.S.C. §§ 1395dd et seq. (Docket
No. 38, ¶¶ 24-36). Plaintiffs also claim the minor suffered
damages as a result of medical malpractice under Puerto Rico law
for failure to properly diagnose and treat his condition. Id. at
¶¶
37-48.
A
thorough
summary
of
the
facts
alleged
in
the
complaint may be found in the Opinion and Order issued on March
31, 2011. (Docket No. 90).
On June 24, 2011, HESL filed a Motion for Summary Judgment.
(Docket No. 103). All other defendants filed motions to join
HESL’s request for summary disposition. (Docket Nos. 106, 107,
111, 114). The joinders were allowed. (Docket Nos. 110, 118).
In the motion, HESL argues that Plaintiffs have failed to
establish that its obligations under EMTALA were not met, that
no federal jurisdiction exists to entertain the supplemental law
claims and that, therefore, dismissal of the entire case is
warranted.
Specifically,
provisions
were
admitted
that
the
followed
it
argues
and
diagnosis
of
that
acute
that
EMTALA’s
Plaintiffs’
screening
own
expert
gastroenteritis
reached
during the first visit to the hospital is compatible with the
Civil No. 10-1008 (JAG)
3
minor’s symptoms. (Docket No. 103, p. 9). It also posits that
EMTALA’s
stabilization
provisions
were
also
met
because
the
symptoms with which the patient arrived had subsided by the time
he was discharged from the hospital. Id. at 11.
In their opposition, Plaintiffs argue that HLES violated
EMTALA’s screening and stabilization provisions by not correctly
recording the symptoms presented by the minor and by sending him
home without stabilizing him. They contend that the nurse who
first
triaged
the
minor
at
the
emergency
room
failed
to
correctly record his symptoms and that Dr. Panelli, the doctor
who
examined
him,
failed
to
use
the
available
ancilliary
services to determine the extent of the condition. They sustain
that,
in
guarding
the
1
”
report
were
prepared
inserted
out
by
Dr.
of
Panelli,
sequence,
the
in
a
words
“no
different
handwriting and could lead a fact-finder to conclude that they
were added later. According to them, the fact that the minor was
diagnosed with “severe supra-pubic pain since last night” by
another doctor the next morning demonstrates that he was not
screened properly initially and that he was sent home without
being stabilized.
1
Abdominal Guarding is defined as, “[a] patient’s action, often
involuntary, intended to protect something painful within the
abdomen (as an inflamed appendix) by tensing the abdominal
muscles. It occurs, e.g., when the physician presses on the
abdomen in the course of an examination.” Attorneys’ Dictionary
of Medicine A-10 (2007).
Civil No. 10-1008 (JAG)
4
STANDARD OF REVIEW
“Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled
to
judgment
as
a
matter
of
law
based
on
the
pleadings,
depositions, answers to interrogatories, admissions on file, and
any affidavits.” Thompson v. Coca-Cola Co., 522 F.3d 168, 175
(1st Cir. 2008) (citing Fed. R. Civ. P. 56(c)). The issue is
“genuine”
if
it
can
be
resolved
in
favor
of
either
party.
Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir.
2004). A fact is “material” if it has the potential to change
the outcome of the suit under governing law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for
summary judgment bears the burden of showing the absence of a
genuine issue of material fact. See Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). “In prospecting for genuine issues of
material fact, we resolve all conflicts and draw all reasonable
inferences in the nonmovant’s favor.” Vineberg v. Bissonnette,
548 F.3d 50, 56 (1st Cir. 2008).
Although
this
perspective
is
favorable
to
the
nonmovant, once a properly supported motion has been presented
before
a
Court,
demonstrating
that
the
a
opposing
party
trial-worthy
issue
has
the
exists
burden
that
of
would
warrant this Court’s denial of the motion for summary judgment.
Civil No. 10-1008 (JAG)
5
Anderson, 477 U.S. at 248. The opposing party must demonstrate
“through submissions of evidentiary quality, that a trial worthy
issue persists.” Iverson v. City of Boston, 452 F.3d 94, 98 (1st
Cir.
2006)
(internal
citations
omitted).
Moreover,
on
issues
“where [the opposing] party bears the burden of proof, it ‘must
present definite, competent evidence’ from which a reasonable
jury could find in its favor.” United States v. Union Bank for
Sav. & Inv.(Jordan), 487 F.3d 8, 17 (1st Cir. 2007) (citing
United States v. One Parcel of Real Property, 960 F.2d 200, 204
(1st Cir. 1992)). Hence, summary judgment may be appropriate, if
the
non-moving
allegations,
party’s
case
improbable
rests
merely
inferences,
upon
“conclusory
and
unsupported
speculation.” Forestier Fradera v. Municipality of Mayaguez, 440
F.3d 17, 21 (1st Cir. 2006) (citing Benoit v. Technical Mfg.
Corp., 331 F.3d 166, 173 (1st Cir. 2003)). It is important to
note
that
credibility
legitimate
throughout
this
determinations,
inferences
from
process,
weigh
the
this
the
facts,
Court
cannot
evidence,
as
they
make
and
make
are
jury
functions, not those of a judge. Anderson, 477 U.S. at 255.
ANALYSIS
EMTALA was enacted in 1986 as a congressional response to
the concern that uninsured, underinsured and indigent patients
were being “dumped” onto other hospitals by hospitals who did
Civil No. 10-1008 (JAG)
6
not want to treat them.
See Feighery v. York Hospital, 59
F.Supp.2d 96, 101-102 (D. Me. 1999)(citing Summers v. Baptist
Medical Center Arkadelphia, 91 F.3d 1132, 1136 (8th Cir. 1996)).
It was intended to create a new cause of action, separate from
traditional state medical malpractice, and Courts have routinely
explained
that
EMTALA
malpractice statute.
Ortiz
v.
Mennonite
is
not
to
be
treated
as
a
federal
See Feighery, 59 F.Supp.2d at 102; Fuentes
General
Hospital,
106
F.Supp.2d
327,
330
screening
or
(D.P.R. 2000).
To
establish
a
violation
of
EMTALA’s
stabilization provisions, a plaintiff must prove that he or she
arrived at the emergency department of a participating hospital
seeking
treatment
and
that
it
did
not
afford
him
or
her
appropriate screening to determine if there was an emergency
medical condition or that the hospital bid him or her farewell
without
first
stabilizing
the
emergency
medical
condition.
Alvarez-Torres v. Ryder Mem. Hosp., Inc., 582 F.3d 47, 51 (1st
Cir. 2009).
1. The Screening Violation Claim
EMTALA specifically states that “the hospital must provide
for
an
appropriate
capability
of
the
ancillary
services
medical
screening
hospital’s
routinely
examination
emergency
available
within
department,
to
the
the
including
emergency
Civil No. 10-1008 (JAG)
7
department, to determine whether or not an emergency medical
condition (within the meaning of subsection (e)(1)) exists.” 42
U.S.C.A. § 1395dd(a). Section (e)(1) defines emergency as, “a
medical
condition
sufficient
absence
severity
of
expected
manifesting
result
individual,
severe
medical
attention
in”
serious
impairment
dysfunction
of
by
(including
immediate
to
itself
any
of
bodily
danger
bodily
organ
acute
pain)
such
could
to
symptoms
reasonably
the
health
functions
or
that
part.
or
42
of
of
the
be
the
serious
U.S.C.A.
§
1395dd(e)(1)(A).
In Correa v. Hospital San Francisco, 69 F.3d 1184, 1192
(1st Cir. 1995), the First Circuit explained that courts had
reached a consensus in a method to determine if screening is
appropriate under EMTALA. It stated that, “[a] hospital fulfills
its statutory duty to screen patients in its emergency room if
it provides for a screening examination reasonably calculated to
identify
critical
symptomatic
uniformly
medical
patients
to
all
and
those
conditions
provides
who
that
that
present
may
level
be
afflicting
of
screening
substantially
similar
complaints.” Correa, 69 F.3d at 1192. The court of Appeals,
however, added that because EMTALA is not a malpractice statute,
“a
refusal
particular
to
follow
instance
regular
contravenes
screening
the
statute
procedures
[…]
but
in
a
faulty
Civil No. 10-1008 (JAG)
8
screening,
in
a
particular
case,
as
opposed
to
disparate
screening or refusing to screen at all, does not contravene the
statute.” Id. at 1192-1193.
HESL’s contends that Plaintiffs have failed to show that
it did not afford the minor a screening examination reasonably
aimed at identifying his condition and that it failed to treat
the
minor
as
it
treats
all
patients
who
present
similar
complaints. It avers that Plaintiffs’ expert agrees that the
diagnosis made by Dr. Panelli of the minor’s condition could be
compatible
with
acute
gastroenteritis
and
that
Plaintiffs’
argument is centered on the standard-of-care afforded and not on
whether it was discriminatory.
Plaintiffs, on the other hand, contend that as part of an
appropriate medical screening, Dr. Panelli should have ordered
an abdominal CT scan of the minor and consulted a pediatric
surgeon
because
posit,
the
of
minor
the
symptoms
he
presented.
was
afforded
a
cursory
Instead,
and
they
substandard
evaluation that led to sustain serious injuries. The Court must,
therefore, determine if there are uncontested facts that could
allow it to find, as a matter of law, if HELS’s failure to
detect the minor’s condition during the first ER visit amounts
to an EMTALA violation or to a medical malpractice case.
Civil No. 10-1008 (JAG)
9
During his deposition, the minor testified that when he
arrived at the ER he complained of severe pain in his abdomen
and that he did not allow anyone to touch the area. (Plaintiffs’
Opposing Statement of Material Facts, Docket No. 120, ¶ 2). It
is uncontested, as evidenced by the Triage form completed by the
nurse, that only vomiting was recorded during the first visit to
the ER. (Docket No. 119, Exhibit 1). However, when Dr. Panelli
examined him shortly thereafter, abdominal pain, eight episodes
of
vomiting
and
three
episodes
of
diarrhea
were
recorded.
(Docket No. 119, Exhibit 5). According to Plaintiffs’ expert’s
unsworn statement, when a patient such as the minor in this case
has
severe
abdominal
pain,
a
surgical
abdomen
exists
and,
therefore, an emergency medical condition occurs which requires
a CT-Scan and examination by a pediatric surgeon. (Docket No.
19-5, Exhibit 3, ¶ 10).
After a careful review of the parties’ arguments and the
evidence submitted in support, the Court considers that there
are
triable
issues
of
fact
regarding
whether
the
screening
performed during the first ER visit was “reasonably calculated
to identify critical medical conditions,” as required by EMTALA.
Correa,
69
demonstrates
F.3d
that
at
1192.
there
are
The
evidence
issues
of
before
fact
the
regarding
Court
the
severity of the minor’s abdominal pain, a material fact since
Civil No. 10-1008 (JAG)
10
the presence of severe pain constitutes an emergency pursuant to
42 U.S.C. § 1395dd(e)(1). It is significant that HELS does not
deny that the minor suffered from pain when he visited the ER
for the first time, but argues that his chief complaint was
vomiting, which was allegedly treated with medication. (Docket
No. 103, p. 11).
Along the same line, whether the minor was guarding or not
guarding is an issue of material fact that precludes summary
judgment
since
reasonableness
condition.
it
of
also
the
Plaintiffs’
hinges
on
the
means
employed
to
expert
states
that
question
of
the
screen
for
his
words
“No
the
guarding” were added out of sequence to the ER report and that
said note is incompatible with the other symptoms presented by
the minor, whose chief complaint was severe pain. A cursory
examination of the document in question also leads the Court to
believe
that
a
reasonable
jury
might
agree
with
Plaintiffs’
expert. However, it is not for this court to make credibility
determinations, weigh the facts or make legitimate inferences
from the facts, as they are jury functions. Anderson, 477 U.S.
at 255.
Furthermore, the Court cannot find, as the record stands,
that Plaintiffs’ expert conceded that the minor was screened
properly simply because he stated in his deposition that the
Civil No. 10-1008 (JAG)
11
clinical picture reflected in the record may be compatible with
gastroenteritis. HELS submits a single page from the transcript
of the expert’s deposition. The page, which ends with a question
that hinges on a material issue of fact but, conveniently for
defendant, it did not include the answer offered by the expert.
The transcript states,
Q. And is that clinical picture compatible with a
gastroenteritis?
A. It may be.
Q. Okay. And within your exercise and clinical
judgment did you determine the studies and the
medication to offer him for the condition that
you were evaluating?
A. He did not do studies.
Q. Did some study [sic] have to be made in order
to confirm the presence of gastroenteritis?
[End of page] (Docket No. 117-2, Exhibit 15).
If HELS had made a reasonable attempt at providing the
Court with enough of the transcript for it to have a clear
picture of what Plaintiffs’ expert said during the deposition,
it may have been able to determine if he in fact conceded that
screening was proper. However, the Court cannot latch on to the
single
phrase
“[i]t
may
be.”
Especially
since
the
expert’s
affidavit is clear regarding his opinion about the presence of a
surgical abdomen.
Civil No. 10-1008 (JAG)
12
It is, therefore, for the jury to determine if the minor
suffered from severe pain and whether he was guarding because of
it, whether the medical personnel failed to employ reasonable
means
to
ascertain
what
the
cause
of
his
emergency
was
and
whether that failure amounts to medical malpractice or an EMTALA
violation.
It
would
have
been
a
very
different
scenario
if
any
ancilliary services would have had been employed to ascertain
what was causing the minor’s abdominal pain, even if the results
of those studies led to a wrong diagnosis. However, since it
appears that no tests were performed using HESL’s ancilliary
services,
the
Court
is
unable
to
determine,
at
this
point,
whether all reasonable efforts were made to determine what was
the minor’s condition and whether the failure to detect the
severity of his condition is due to a faulty diagnosis alone or
to a refusal to follow regular screening procedures.
2. The Stabilization Violation Claim
EMTALA also requires that if a person comes to a hospital
with an emergency medical condition the hospital must provide,
“(A) within the staff and facilities available at the hospital,
for such further medical examination and such treatment as may
be
required
transfer
of
to
the
stabilize
the
individual
medical
to
condition,
another
medical
or
(B)
facility
for
in
Civil No. 10-1008 (JAG)
13
accordance with subsection (c). 42 U.S.C.A. § 1395dd(a)(b)(1).
Because EMTALA is an ‘anti-dumpling’ statute “transfer” means
both discharge and transfer to another facility. Alvarez-Torres
v. Ryder Mem. Hosp., Inc/ 582 F.3d 47 (1st Cir. 2009).
In Fraticelli-Torres v. Hosp. Hermanos, 300 Fed. App. 1
(1st Cir. 2008), the First Circuit upheld a summary judgment in
a case where a man was admitted to a hospital after suffering
myocardial infarction and died several days later when he was
being transferred to another hospital. The court stated that,
“[t]he stabilization obligation does not impose a standard of
care prescribing how physicians must treat a critical patient's
condition
while
he
remains
in
the
hospital,
but
merely
prescribes a precondition the hospital must satisfy before it
may undertake to transfer the patient to another hospital.” Id.
at 4. It noted that, “EMTALA only imposes a requirement that,
before ordering any inter-hospital transfer, hospitals stabilize
critical medical conditions of which, after reasonable screening
procedures, they become aware.” Id. at 6 (citing Reynolds v.
MainGeneral
Reynolds,
Health,
the
stabilization
218
First
of
only
F.3d
78,
85
(1st
Circuit
stated
that
those
conditions
that
Cir.
2000)).
EMTALA
a
In
“requires
participating
hospital has determined to be emergencies.” Reynolds, 218 F.3d
at
85.
The
Court
must,
therefore,
determine
whether
HESL
Civil No. 10-1008 (JAG)
14
stabilized
the
minor’s
condition
of
which
it
was
aware,
or
should have been aware of, after employing reasonable screening
procedures.
However, since the Court, as discussed above, finds that
there are triable issues of fact regarding whether or not HESL
employed reasonable methods to screen the minor, it follows that
it cannot be determined at this point if, as a matter of law, he
was stabilized before being sent home. It is noted, that the ER
evaluation
sheet
indicates
that
he
was
stable
and
that
his
condition on discharge was “with same symptoms.” (Docket no.
119-7, Exhibit 5). Hence, if a reasonable jury were to find that
the minor was not screened as required by EMTALA it could also
reasonably find that he was sent home without being stabilized.
It is noted that this case is clearly distinguishable from
Torres-Fraticelli, where the patient died after being treated
for several days and was being transferred to another hospital
to
undergo
surgery.
It
is
also
clearly
distinguishable
from
Reynolds where a patient suffered a car accident, injured his
legs, developed deep veinous thrombosis at some point and died
of a pulmonary embolism several days after being discharged.
Plaintiffs in that case alleged that the failure to ascertain
the risk of the development of clots constituted a failure to
Civil No. 10-1008 (JAG)
15
stabilize within the meaning of EMTALA, an interpretation which
the First Circuit refused to endorse.
Given that the Court finds there are material issues of
fact
that
address
preclude
the
merits
summary
of
judgment
Plaintiffs’
and
since
HESL
did
not
state
law
claims
in
its
motion, the Court is not in a position to consider if summary
judgment of the supplemental claims is proper.
CONCLUSION
For
the
reasons
stated
above,
the
Court
hereby
DENIES
HESL’s Motion for Summary Judgment. (Docket No. 103).
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 8th day of August, 2011.
S/ Jay A. García-Gregory
JAY A. GARCÍA-GREGORY
United States District Judge
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