Nieves-Floran v. Rodriguez-Rodriguez et al

Filing 204

ORDER denying 191 Motion to Dismiss for Lack of Jurisdiction; granting 191 Motion to Dismiss for Failure to State a Claim. The EMTALA claims are dismissed. The remaining Puerto Rico law claims proceed to trial. The parties are strongly urged to pursue settlement. Signed by US Magistrate Judge Bruce J. McGiverin on February 12, 2020. (McGiverin, Bruce)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
NOEMÍ NIEVES FLORÁN,
Plaintiff,
v.

Civil No. 16-1930 (BJM)

DOCTORS’ CENTER HOSPITAL, INC., et
al.,
Defendants.
OPINION AND ORDER
Plaintiff Noemí Nieves Florán (“Nieves”) brought this action against Doctors’
Center Hospital (“Doctors”), Dr. Maritza Loinaz-Rivera (“Dr. Loinaz”), and their insurers,
alleging violations of the Emergency Medical Treatment and Labor Act (“EMTALA” or
“the Act”), 42 U.S.C. §§ 1395dd, and medical malpractice under Article 1802 of the Puerto
Rico Civil Code, P.R. Laws Ann. tit. 31, § 5141. Dkt. 126 (“Am. Compl.”). Doctors moved
to dismiss Nieves’s EMTALA claims. Dkt. 191. Nieves has not opposed. This matter is
before me by consent of the parties. Dkt. 165.
For the reasons set forth below, the motion to dismiss is GRANTED.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss
for lack of subject matter jurisdiction. Courts are generally obligated to address questions
of subject matter jurisdiction before the merits of a case. Sinapi v. Rhode Island Bd. of Bar
Examiners, 910 F.3d 544, 549 (1st Cir. 2018) (citing Acosta-Ramírez v. Banco Popular de
P.R., 712 F.3d 14, 18 (1st Cir. 2013)). “[T]he party invoking the jurisdiction of a federal
court carries the burden of proving its existence.” Johansen v. United States, 506 F.3d 65,
68 (1st Cir. 2007) (citing Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995)).
When faced with a motion to dismiss for failure to state a claim under Rule 12(b)(6),
the court “accept[s] as true all well-pleaded facts alleged in the complaint and draws all

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reasonable inferences therefrom in the pleader’s favor” to determine whether the complaint
states a claim for which relief can be granted. Santiago v. Puerto Rico, 655 F.3d 61, 72 (1st
Cir. 2011). These facts and inferences may be augmented “with data points gleaned from
documents incorporated by reference into the complaint, matters of public record, and facts
susceptible to judicial notice.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011).
Dismissal under Rule 12(b)(6) is inappropriate if the complaint provides “a short
and plain statement of the claim showing that the pleader is entitled to relief.” OcasioHernandez v. Fornuno-Burset, 640 F.3d 1, 11 (1st Cir. 2011) (quoting Fed. R. Civ. P.
8(a)(2)). “A short and plain statement needs only enough detail to provide a defendant with
‘fair notice of what the . . . claim is and the grounds upon which it rests.’” Id. at 12 (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). This requires that the complaint
contain sufficient facts “to raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true.” Id.
In making this determination, courts employ a two-pronged approach, first by
identifying and disregarding statements in the complaint that offer “legal conclusion[s]
couched as . . . fact” or “[t]hreadbare recitals of the elements of action.” Twombly, 550 U.S.
at 555. All non-conclusory factual allegations are treated as true, “even if seemingly
incredible.” Ocasio-Hernandez, 640 F.3d at 12 (citing Ashcroft v. Iqbal, 556 U.S. 662, 680–
681 (2009)). If the complaint’s properly pleaded factual content, read as a whole, “allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged, the claim has facial plausibility.” Iqbal, 556 U.S. at 677. Applying the plausibility
standard is “a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 662.
BACKGROUND
On May 11, 2015, Nieves fell while she was visiting her sister, sustaining a severe
fracture and dislocation to her right ankle. Am. Compl. ¶¶ 1, 3. An ambulance arrived, and

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first responders used wooden splints to stabilize Nieves’s ankle. Id. ¶ 2. They brought her
to Doctors’ emergency room at 10:26 pm. Id. ¶ 3.
At the hospital, blood work and x-rays were performed, demonstrating that Nieves
had suffered multiple fractures and ankle dislocation. Id. ¶ 4. An emergency room doctor
told Nieves to wait for an orthopedic doctor, and Nieves waited in an emergency room bed
in a hallway. Id. ¶ 5.
At 8:30 am the next morning, hospitalist Dr. Harley Arraut-Ramirez (Dr. Arraut)
officially admitted Nieves to the hospital and into the care of Dr. Norbert Correa-Sandina
(Dr. Correa). Id. ¶¶ 6–7. At the time of her admission, Nieves was still in the emergency
room. Id. ¶¶ 6–7, 10. According to a progress note written by Dr. Correa, Nieves was
admitted “for evaluation from medical point of view for treatment of bimalleolarfreacture
[sic]” and that there was no “contraindication at the moment for surgery.” Id. ¶ 9.
At 4:00 pm on May 12, Dr. Loinaz performed an orthopedic consultation. Id. ¶ 8.
She diagnosed Nieves with a right ankle bimalleolar fracture and described a treatment
plan as “will admit for proper treatment.” Id. At 8:00 am on May 13, Dr. Correa filled out
a progress note indicating that Nieves had been admitted to his service. Id. ¶ 9. On May
14, Nieves was informed that Doctors had a room available for her. Id. ¶ 10.
On May 15, Nieves’s family arrived from New York and demanded to know why
an orthopedic surgeon had not yet seen Nieves even though she had been in the hospital
for three days. Id. ¶ 11. An orthopedic surgeon came to see Nieves and advised that she
needed ankle surgery as soon as possible. Id. ¶ 12. She also explained that Nieves’s
insurance would not pay for the surgery if it were performed at Doctors. Id. That same day,
Dr. Loinaz wrote a note explaining that she had been notified when Nieves arrived to the
emergency room, but she had asked that Nieves be transferred to a public hospital because
she had no insurance. Id. ¶ 13. The note also explained that Nieves’s admission by Dr.
Arraut was against the advice of Dr. Loinaz. Id.

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Nieves was discharged from the hospital on May 15. Id. ¶ 14. In a discharge
summary, Dr. Loinaz indicated that Nieves’s ankle had been re-splinted before Nieves
would be leaving to New York. Id. That summary does not indicate that Nieves’s ankle was
reduced or set. Id.
On May 16, Nieves flew to New York, where she was admitted to another hospital
and where x-rays revealed “marked posterolateral dislocation” and fractures. Id. ¶ 15.
Nieves’s fracture dislocation was reduced, and new x-rays demonstrated that the posterior
dislocation was resolved. Id. ¶ 16. Nieves underwent surgery on May 29. Id. ¶ 17. Nine
months after the surgery, Nieves was using a walker and suffering from pain and limited
mobility, which, according to her expert witness, is a poor outcome. Id. ¶ 18.
Nieves brought suit against Doctors and other defendants alleging, inter alia, that
Doctors violated EMTALA’s screening and stabilization requirements. Id. ¶¶ 40–46.
DISCUSSION
At the outset, I note that Doctors fashions its motion as both a Rule 12(b)(6) motion
to dismiss for failure to state a claim and a Rule 12(b)(1) motion to dismiss for lack of
subject matter jurisdiction. Doctors’ arguments, however, “appear to confound
jurisdictional with merits-based issues.” Cruz-Vazquez v. Mennonite Gen. Hosp., Inc., 717
F.3d 63, 67 (1st Cir. 2013). Despite purporting to question the court’s subject matter
jurisdiction, Doctors does not address whether Nieves’s EMTALA claims, brought under a
federal statute, arise under the laws of the United States as required for jurisdiction under
28 U.S.C. § 1331. Rather, Doctors focuses its arguments on the sufficiency of Nieves’s
allegations. But “the absence of a valid (as opposed to arguable) cause of action does not
implicate subject-matter jurisdiction, i.e., the courts’ statutory or constitutional power to
adjudicate the case.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998)
(citations omitted); see also Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S.
661, 666 (1974) (explaining that dismissal for lack of subject matter jurisdiction based on
the inadequacy of the federal claim is proper only when the claim is “so insubstantial,

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implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of
merit as not to involve a federal controversy”); Baker v. Carr, 369 U.S. 186, 200 (1962)
(citations omitted) (“[T]he failure to state a proper cause of action calls for a judgment on
the merits and not for a dismissal for want of jurisdiction.”). Finding that this court has
federal question jurisdiction over Nieves’s EMTALA claims, I will proceed to consider
Doctors’ motion as a Rule 12(b)(6) motion to dismiss for failure to plead facts sufficient to
sustain an EMTALA claim.
In light of Nieves’s failure to oppose Doctors’ motion to dismiss, Doctors asked
that I grant its motion as unopposed and deem all objections waived pursuant to Local Rule
7(b). Dkt. 195; see Local Rules of the U.S. Dist. Court for the Dist. of P.R. Rule 7(b)
(“Unless within fourteen (14) days after the service of a motion the opposing party files a
written objection to the motion, incorporating a memorandum of law, the opposing party
shall be deemed to have waived objection.”). “When deciding a 12(b)(6) motion, ‘the mere
fact that a motion to dismiss is unopposed does not relieve the district court of the
obligation to examine the complaint itself to see whether it is formally sufficient to state a
claim.’” Pomerleau v. W. Springfield Pub. Sch., 362 F.3d 143, 145 (1st Cir. 2004) (citing
Vega–Encarnacion v. Babilonia, 344 F.3d 37, 41 (1st Cir. 2003). Indeed, “a court may not
automatically treat a failure to respond to a 12(b)(6) motion as a procedural default.” Id.
(citing Pinto v. Universidad De Puerto Rico, 895 F.2d 18, 19 & n. 1 (1st Cir. 1990)).
Accordingly, I will decide Doctors’ motion to dismiss based on the sufficiency of the
complaint itself despite Nieves’s failure to oppose.
I.

EMTALA

EMTALA was enacted “in 1996 in response to claims that hospital emergency
rooms were refusing to treat patients with emergency conditions but no medical insurance.”
Ramos-Cruz v. Centro Medico del Turabo, 642 F.3d 17, 18 (1st Cir. 2011). “EMTALA
therefore ‘is a limited anti-dumping statute, not a federal malpractice statute.’” Id. (quoting

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Reynolds v. Me. Gen. Health, 218 F.3d 78, 83 (1st Cir. 2000)). The Act “creates private
rights of action where hospitals violate [EMTALA’s] mandates.” Id.
A plaintiff seeking to establish an EMTALA violation “must show (1) the hospital
is a participating hospital, covered by EMTALA, that operates an emergency department;
(2) the plaintiff arrived at the facility seeking treatment; and (3) 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) released the patient without first stabilizing the
emergency medical condition.” Cruz-Vazquez, 717 F.3d at 68 (citing Correa v. Hosp. S.F.,
69 F.3d 1184, 1189 (1st Cir. 1995)); see also Lopez-Soto v. Hawayek, 175 F.3d 170, 177
(1st Cir. 1999) (“subsections (a) and (b) of EMTALA operate disjunctively”).
Nieves’s amended complaint alleges both screening and stabilization violations.
Am. Compl. ¶¶ 40–46. Doctors does not challenge Nieves’s ability to show that it was
covered by EMTALA, that it operates an emergency department, or that Nieves arrived to
the hospital seeking medical treatment. See Cruz-Vazquez, 717 F.3d at 68. Instead, Doctors
contends that (1) Nieves’s screening claim must be dismissed because she has not alleged
the absence of screening or disparate screening, and (2) her stabilization claim must be
dismissed because she was admitted to the hospital, rendering the stabilization provision
of EMTALA inapplicable. Doctors also argues that dismissal is required because Nieves
lacks an expert to opine on Doctors’ approach to screening and stabilizing Nieves.
A.

Screening Claim

The Act does not define an “appropriate medical screening examination.” CruzQueipo v. Hosp. Español Auxilio Mutuo de P.R., 417 F.3d 67, 70 (1st Cir. 2005). But under
First Circuit law, 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
medical conditions that may be afflicting symptomatic patients and provides that level of
screening uniformly to all those who present substantially similar complaints.” Id. (quoting
Correa, 69 F.3d at 1192). Faulty screening, as opposed to disparate screening or no

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screening at all, does not contravene the Act. Correa, 69 F.3d at 1192–93. Rather, the
essence of EMTALA’s screening requirement “is that there be some screening procedure,
and that it be administered even-handedly.” Correa, 69 F.3d at 1192; see also Baber v.
Hosp. Corp. of Am., 977 F.2d 872, 878 & 879 n. 7 (4th Cir. 1992) (“EMTALA only requires
hospitals to apply their standard screening procedure for identification of an emergency
medical condition uniformly to all patients.”).
Here, Nieves has alleged that she arrived to Doctors’ emergency room by
ambulance after she fell and hurt her right ankle. Am. Compl. ¶¶ 1–3. In the emergency
room, someone performed blood work and took x-rays, which revealed multiple fractures
and dislocation, and an emergency room doctor told Nieves to wait for an orthopedic
doctor. Id. ¶¶ 4–5. She was admitted to the hospital roughly ten hours after arriving to the
emergency room, received an orthopedic consult roughly eight hours after her admission,
and, after a three-day wait, was informed that she needed surgery on her ankle as soon as
possible. Id. ¶¶ 6, 8, 12. Nieves alleges that, although Doctors has no screening manual, it
provides screening “based by medical knowledge according to condition.” Id. ¶ 43.
According to her complaint, Doctors’ usual practice is “to provide appropriate medical
screening,” and Doctors failed to follow this practice because its “screening was so
deficient that it deviated from the National Standard of Screening in such a way that it
amounted to no screening at all.” Id. ¶ 44.
These allegations, even when viewed in the light most favorable to Nieves, do not
amount to a violation of EMTALA’s screening requirements. First, Nieves has not properly
alleged that Doctors failed entirely to screen her. Rather, someone took x-rays and
performed blood work, an emergency room doctor determined that Nieves needed to see
an orthopedic physician, and an orthopedic physician ultimately saw Nieves and diagnosed
her with right ankle bimalleolar fracture. These facts demonstrate that some screening
occurred. Second, the fact that Nieves alleges she was admitted to the hospital indicates
that Doctors met its EMTALA screening duties. See Reynolds, 218 F.3d at 83 (“The fact

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that Mr. Reynolds was in the hospital receiving treatment is a prima facie showing that the
purpose of subsection (a) was satisfied; any failures of diagnosis or treatment were then
remediable under state medical malpractice law.”); Alvarez-Torres v. Ryder Mem’l Hosp.,
Inc., 576 F. Supp. 2d 278, 284 (D.P.R. 2008) (“[T]here is a prima facie showing that Ryder
satisfied the screening provision of EMTALA because Martinez Lopez was admitted to the
hospital after visiting the ER.”).
Finally, the thrust of Nieves’s argument is that Doctors has a policy of providing
“appropriate screening,” but the screening Doctors provided her was inappropriate. This
amounts to an attempt “to bring a malpractice standard into the interpretation and
application of a statute designed to complement and not incorporate state malpractice law.”
Reynolds, 218 F.3d at 84. A deviation from national screening standards is not an EMTALA
screening violation unless a hospital expressly adopted those standards but failed to follow
them in a particular case. See del Carmen Guadalupe v. Negron Agosto, 299 F.3d 15, 21
(1st Cir. 2002) (quoting Baber, 977 F.2d at 879–80) (“Had Congress intended to require
hospitals to provide a screening examination which comported with generally accepted
medical standards, it could have clearly specified a national standard.”). But Nieves has
not alleged that Doctors’ adopted “the National Standard of Screening.” Am. Compl. ¶ 44.
Nieves has not alleged that she “received materially different screening than that
provided to others in [her] condition.” Id. She did not allege, for instance, that Doctors’
regular screening procedures for patients with ankle fractures involves bringing such
patients to orthopedic physicians within a certain amount of time, and Doctors failed to
follow that procedure in her case. Rather, she alleges generally faulty screening, which,
although perhaps sounding in tort, does not state an EMTALA violation. See Correa, 69
F.3d at 1192–93.
For these reasons, Nieves’s EMTALA screening claim is dismissed with prejudice.
B.

Stabilization Claim

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“EMTALA requires covered hospitals to ‘stabilize’ an individual if ‘the hospital
determines that the individual has an emergency medical condition.’” Alvarez-Torres, 576
F. Supp. at 284 (quoting 42 U.S.C. § 1395dd(b)(1)); see also Reynolds, 218 F.3d at 85
(quoting Summers v. Baptist Med. Ctr. Arkadelphia, 91 F.3d 1132, 1140 (8th Cir. 1996))
(explaining that there is no duty to stabilize unless hospital “has actual knowledge of the
individual’s unstabilized emergency medical condition”). An emergency medical condition
is one that manifests itself by such severe symptoms “that the absence of immediate
medical attention could reasonably be expected to result in (i) placing the health of the
individual . . . in serious jeopardy, (ii) serious impairment to bodily functions, or (iii)
serious dysfunction of any bodily organ or part.” 42 U.S.C. § 1395dd(E)(1)(A).
Stabilization requires the provision of “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 [including the discharge]
of the individual from a facility[.]” 42 U.S.C. § 1395dd(e)(3)(A); see also 42 U.S.C. §
1395dd(e)(4) (defining “transfer.”).
Nieves alleges that she came to Doctors suffering from a fractured and dislocated
ankle. Am. Compl. ¶¶ 1, 3. According to Nieves, that fracture was an emergency medical
condition because, without immediate medical attention, she could reasonably be expected
to develop a serious disability. Id. ¶ 47. After x-rays and bloodwork, Dr. Arraut admitted
Nieves into the care of Dr. Correa, who noted that her admission was “for evaluation from
medical point of view for treatment of bimalleolarfracture [sic].” Id. ¶¶ 5–7, 9. Nieves’s
admission was against the advice of Dr. Loinaz, who had performed an orthopedic consult
and requested that Nieves be transferred to a public hospital because she had no insurance.
Id. ¶¶ 8, 13. After two days in the emergency room, Doctors informed Nieves they had a
room for her. Id. ¶ 10. After three days in the hospital, Nieves’s family arrived and
demanded to know why Nieves had not been seen by an orthopedic surgeon. Id. ¶ 11. An
orthopedic surgeon came to see Nieves and advised that she needed ankle surgery as soon

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as possible but that Nieves’s insurance would not pay for it. Id. ¶¶ 11–12. Nieves’s ankle
was re-splinted, but not reduced or set, and Nieves was discharged. Id. ¶ 14.
Even if I assume that Nieves’s broken ankle was an emergency medical condition,
Nieves has not alleged sufficient facts to raise her right to relief under EMTALA’s
stabilization provision above the speculative level. “[I]n determining whether a patient has
been stabilized, the fact-finder must consider whether the medical treatment and
subsequent release were reasonable in view of the circumstances that existed at the time
the hospital discharged or transferred the individual.” Torres Otero v. Hosp. Gen. Menonita,
115 F. Supp. 2d 253, 259–60 (D.P.R. 2000) (citing Delaney v. Cade, 986 F.2d 387, 393
(10th Cir. 1993)). Doctors x-rayed Nieves’s ankle, performed blood work, admitted her for
treatment, and re-splinted the ankle prior to discharge. Rather than alleging facts indicating
that re-splinting the ankle was not reasonably calculated to prevent material deterioration
of the condition during transfer, see 42 U.S.C. § 1395dd(e)(3)(A), Nieves merely recites
the elements of an EMTALA stabilization violation. See Am. Compl. ¶ 46. And although
Nieves urges that her treatment was delayed or incorrectly provided, such allegations do
not state an EMTALA stabilization violation. Torres Otero, 115 F. Supp. 2d at 260 (finding
that allegations that treatment was “incorrect and/or delayed” constituted an attempt “to
engraft an EMTALA failure to stabilize claim upon a medical malpractice claim”).
Moreover, Nieves herself alleges that she was admitted to the hospital for
evaluation and treatment of her fracture. Various courts have determined that “EMTALA’s
stabilization requirement is not applicable in situations where an individual is admitted to
the hospital for further treatment.” Benitez-Rodriguez v. Hosp. Pavia Hato Rey, Inc., 588
F. Supp. 2d 210, 214 (D.P.R. 2008) (citing cases); see Bryant v. Adventist Health Sys./West,
289 F.3d 1162, 1167 (9th Cir. 2002) (“[T]he stabilization requirement normally ends when
a patient is admitted for inpatient care.”); Harry v. Marchant, 291 F.3d 767, 768–69 (11th
Cir. 2002) (finding EMTALA’s stabilization requirement inapplicable where patient was
admitted as inpatient and never transferred to another hospital); Thornhill v. Jackson Par.

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Hosp., 184 F. Supp. 3d 392, 399 (W.D. La. 2016) (collecting cases); Ceballos-Germosen v.
Doctor's Hosp. Ctr. Manati, 62 F. Supp. 3d 224, 232 (D.P.R. 2014) (“By admitting
Germosén as an inpatient, the hospital had no duty to stabilize under EMTALA.”);
Loaisiga-Cruz v. Hosp. San Juan Bautista, 681 F. Supp. 2d 130, 135–36 (D.P.R. 2010)
(finding that plaintiff had not stated a stabilization claim where plaintiff spent a period of
time in the emergency room, was assigned a room in the hospital, and “where, at the very
least, he received intravenous fluids and nurses attempted to insert a catheter”); VazquezRivera v. Hosp. Episcopal San Lucas, Inc., 620 F. Supp. 2d 264, 270 (D.P.R. 2009) (“[A]
hospital fulfills its statutory duties under EMTALA once it admits the patient.”); Rivera v.
Hosp. Episcopal Cristo Redentor, 613 F. Supp. 2d 192, 200 (D.P.R. 2009); Walley v. York
Hosp., No. 2:18-CV-126-DBH, 2018 WL 3614967, at *2–3 (D. Me. July 27, 2018).
Indeed, the Department of Health and Human Services’ Centers for Medicare and
Medicaid Services (“CMS”), the agency charged with administering EMTALA, has
promulgated the following regulation:
If a hospital has screened an individual . . . and found the individual to have an
emergency medical condition, and admits that individual as an inpatient in good
faith in order to stabilize the emergency medical condition, the hospital has satisfied
its special responsibilities under this section [concerning the obligation to stabilize]
with respect to that individual.
42 C.F.R. § 489.24(d)(2)(i). The regulation also states: “If the hospital admits the individual
as an inpatient for further treatment, the hospital's obligation under this section ends, as
specified in paragraph (d)(2) of this section.” Id. § 489.24(a)(1)(ii) (emphasis added). The
“vast majority” of courts to construe this regulation either gave it “controlling weight” or
favorably cite it in “finding that a hospital’s duty under EMTALA ends upon admitting a
patient in good faith.” Thornhill, 184 F. Supp. at 399 (citing cases).

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Of course, not every admission to the hospital will satisfy EMTALA. 1 See, e.g.,
Moses v. Providence Hosp. and Med. Cent., Inc., 561 F.3d 573, 583 (6th Cir. 2009) (finding
that the EMTALA duty to stabilize can extend to inpatient care); Lima-Rivera v. UHS of
Puerto Rico, Inc., 476 F. Supp. 2d 92, 99 (D.P.R. 2007) (finding that plaintiff had
sufficiently pleaded an EMTALA violation where a baby was born in a hospital, admitted
to intensive care, and transferred to an outside hospital while unstable). As CMS explains,
only an admission made in good faith in order to stabilize the emergency medical condition
will do. 42 C.F.R. § 489.24(d)(2)(i); see also Thornton v. Sw. Detroit Hosp., 895 F.2d 1131,
1135 (6th Cir. 1990) (“Hospitals may not circumvent the requirements of the Act merely
by admitting an emergency room patient to the hospital, then immediately discharging that
patient. Emergency care must be given until the patient's emergency medical condition is
stabilized.”); Mazurkiewicz v. Doylestown Hosp., 305 F. Supp. 2d 437, 447 (E.D. Pa. 2004)
(“[T]he most persuasive synthesis of the law on admission as a defense to EMTALA
liability is that admission is a defense so long as admission is not a subterfuge.”).
Here, however, Nieves has not alleged that her admission was a sham intended to
subvert EMTALA or intended for any reason other than to treat her ankle. Although Nieves
alleges that Dr. Loinaz advised against her admission based on her lack of insurance, Am.
Compl. ¶¶ 8, 13, Nieves was nonetheless admitted for treatment, and her ankle was resplinted. Id. ¶¶ 6, 9, 14. As with her screening claim, Nieves’s stabilization claim essentially
alleges malpractice, charging that Doctors’ delay in treating her and the decision to re-splint

1

Here, I take note of Lopez–Soto v. Hawayek, 175 F.3d 170 (1st Cir. 1999). In that case,
the First Circuit explained that EMTALA imposes a duty on hospitals not only to stabilize patients
who seek emergency treatment but also to any patient already admitted to the hospital who then
develops an emergency condition. Id. at 175. I find Lopez–Soto inapplicable here both because at
the time that case was decided the First Circuit did not have the benefit of CMS’s inpatient
regulation and because Lopez–Soto “did not specifically address a situation where a patient was
admitted to the defendant hospital after entering the emergency room.” Benitez-Rodriguez, 588 F.
Supp. at 214.

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as opposed to re-set fell below the professional standard of care. But “EMTALA does not
create a cause of action for medical malpractice.” Correa, 69 F.3d at 1192.
Given that (1) Doctors admitted Nieves to treat her ankle, (2) Doctors re-splinted
her ankle, and (3) Nieves has not alleged facts indicating that re-splinting her ankle was
not reasonably calculated to prevent material deterioration of her ankle during transfer, she
has failed to state an EMTALA stabilization claim. Accordingly, that claim is dismissed
with prejudice. 2
II.

Diversity Jurisdiction

Having dismissed Nieves’s EMTALA claims, this court no longer has jurisdiction
over this case pursuant to 28 U.S.C. § 1331. Nonetheless, this court retains subject matter
jurisdiction over Nieves’s remaining malpractice claims pursuant to 28 U.S.C. § 1331(a).
Nieves is a citizen of New York, defendants are citizens of Puerto Rico and Illinois, and
the alleged amount-in-controversy exceeds $75,000. See Am. Compl. ¶¶ A–E, Dkt. 126 at
13.
CONCLUSION
For the foregoing reasons, the motion to dismiss is GRANTED. The EMTALA
claims, 42 U.S.C. § 1395dd, are DISMISSED WITH PREJUDICE. The state-law
medical malpractice claims remain. P.R. Laws Ann. tit. 31, § 5141.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 12th day of February 2020.
S/Bruce J. McGiverin
BRUCE J. MCGIVERIN
United States Magistrate Judge
2

Because I dismiss Nieves’s EMTALA claims, I do not at this time reach Doctors’
argument regarding the opinions of Nieves’s expert witness. Doing so requires looking to an expert
report. “Ordinarily, a court may not consider any documents that are outside of the complaint, or
not expressly incorporated therein, unless the motion is converted into one for summary judgment.”
Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001). Although there
are exceptions that permit a federal court to consider matters outside the pleadings, id. at 33–34, I
see no need to decide whether the expert report falls into one of those exceptions, having dismissed
on other grounds.