Friedrich et al v. South County Hospital Healthcare System et al

Filing 59

OPINION AND ORDER denying 44 Motion for Partial Summary Judgment. So Ordered by Chief Judge William E. Smith on 11/1/2016. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
SOUTH COUNTY HOSPITAL HEALTHCARE
)
SYSTEM; JOSEPH P. TURNER, D.O.;
)
JOHN and/or JANE DOE, Alias; and
)
JOHN DOE CORPORATION, Alias,
)
)
Defendants.
)
___________________________________)
STEPHEN FRIEDRICH, individually
and as Executor of the Estate of
PATRICIA FRIEDRICH and p.p.a S.F.;
and AMY FRIEDRICH,

C.A. No. 14-353 S

OPINION AND ORDER
WILLIAM E. SMITH, Chief Judge.
Before the Court is a Motion for Partial Summary Judgment
(“Motion”) (ECF No. 44) filed by Defendant South County Hospital
Healthcare System (“Defendant”), in which it contends that the
federal statute on which this action is premised - the Emergency
Medical Treatemnt and Active Labor Act (“EMTALA”) - does not apply
to the hospital facility at issue in this case.
an Opposition.

(ECF No. 49.)

Plaintiffs filed

For the reasons that follow,

Defendant’s Motion is DENIED.
I.

Background
Patricia

Friedrich

(“Friedrich”)

presented

to

the

South

County Hospital Medical & Wellness Center’s Urgent/Walk-in Care

(the “Urgent/Walk-in Care”) on September 9, 2013, complaining of
severe pain and burning in her chest and right arm.

She sent

several text messages to her coworkers indicating that she “had to
get checked out at the ER” and she “[s]aw south county walk in
hospital from the highway and pulled in to get checked out!

All

the symptoms of a female type heart attacked but new it could’t be
. . . But since i’m not a doctor i thought it wax a good idea to
get checked out.”
left unedited).)

(Ex. 22 to Pls.’ Opp’n 3-5, ECF No. 49-23 (text
Friedrich was seen by Joseph Turner, D.O.

After

undergoing several tests, she was diagnosed with gastroesophageal
reflux disease, given a “GI cocktail,” and discharged with no
follow-up ordered.

(Pls.’ Opp’n 1-2, ECF No. 49-1.)

The next day, Friedrich was found unresponsive at home.
Emergency

Medical

Response

was

called

resuscitation began upon their arrival.

and

cardiopulmonary

She was transported to

South County Hospital in asystole and death was pronounced.
autopsy

confirmed

the

cause

of

death

hypertensive cardiovascular disease.

as

atherosclerotic

An
and

(Pl.’s Opp’n 2, ECF No. 49-

1.)
II.

Discussion
The issue in the current motion is whether the Urgent/Walk-

in

Care

was

required

Friedrich under EMTALA.

to

appropriately

screen

and

stabilize

Adopted by the United States Congress in

1986, EMTALA requires that federally funded hospitals provide an
2

“appropriate medical screening examination” to individuals who
present to an emergency department requesting an examination, “to
determine whether or not an emergency medical condition . . .
exists.” See 42 U.S.C. § 1395dd(a). Additionally, EMTALA mandates
that when
the hospital determines that the individual has an
emergency medical condition, the hospital must provide
either—
(A)
the
and
the

within the staff and facilities available at
hospital, for such further medical examination
such treatment as may be required to stabilize
medical condition, or

(B) for transfer of the individual to another
medical facility in accordance with subsection (c)
of this section.
Id. § 1395dd(b).

However, a patient who has not been stabilized

may only be transferred if certain conditions are met.
1395dd(c).

To

establish

a

violation

of

the

See id. §

screening

or

stabilization provisions in EMTALA, a plaintiff must prove that:
(1) the hospital is a participating hospital, covered by
EMTALA, that operates an emergency department (or an
equivalent facility); (2) the patient 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) bade farewell to the patient (whether
by turning her away, discharging her, or improvidently
transferring
her)
without
first
stabilizing
the
emergency medical condition.
Alvarez-Torres v. Ryder Mem’l Hosp., Inc., 582 F.3d 47, 51 (1st
Cir. 2009) (citing Correa v. Hosp. San Francisco, 69 F.3d 1184,
1190 (1st Cir. 1995)).
3

The

threshold

question

in

this

case

is

whether

the

Urgent/Walk-in Care is a “dedicated emergency department” of South
County Hospital under EMTALA. 1

The Centers for Medicaid and

Medicare Services (“CMS”) - a division of the Department of Health
and Human Services that is responsible for the Medicare program
and the development and enforcement of regulations on EMTALA - has
defined “dedicated emergency department” as “any department or
facility of the hospital, regardless of whether it is located on
or off the main hospital campus” that meets at least one of three
requirements:
1) It is licensed by the State in which it is located
under applicable State law as an emergency room or
emergency department;
2) It is held out to the public (by name, posted signs,
advertising, or other means) as a place that provides
care for emergency medical conditions on an urgent basis
without requiring a previously scheduled appointment; or
3) During the calendar year immediately preceding the
calendar year in which a determination under this
section is being made, based on a representative sample
of patient visits that occurred during that calendar
year, it provides at least one-third of all of its
outpatient visits for the treatment of emergency medical
conditions on an urgent basis without requiring a
previously scheduled appointment.

1

In its Motion, Defendant argued that the Urgent/Walk-in
Care is not a department of South County Hospital; however, at
oral argument, Defendant conceded that point and focused on the
issue of whether the Urgent/Walk-in Care qualifies as a dedicated
emergency department.
4

42 C.F.R. § 489.24.

There appears to be no dispute that the Court

must defer to CMS’s regulations in interpreting EMTALA, as both
parties cite to 42 C.F.R. § 489.24 for the definition of a
dedicated emergency department.

(See Def.’s Mot. 9, ECF No. 44;

Pls.’ Opp’n 13, ECF No. 49-1.)
For

the

reasons

that

follow,

the

Court

finds

that

the

Urgent/Walk-in Care qualifies under the second requirement: it has
held itself out “as a place that provides care for emergency
medical

conditions

on

an

urgent

basis

without

requiring

a

Id. 2

previously scheduled appointment.”

In its Final Rule interpreting EMTALA, CMS responded to the
comments submitted throughout the notice-and-comment rulemaking
process.

In doing so, it clarified:

In the revised definition of dedicated emergency
department that we are adopting in this final rule, we
state that a department or facility that is held out to
the public (by name, posted signs, advertising, or other
means) as a place that provides care for emergency
medical conditions on an urgent basis without requiring
a previously scheduled appointment will be considered to
be a dedicated emergency department.
Consistent with
what we have stated above, we believe that most providerbased urgent care centers that are held out to the public
as such will meet the revised definition of dedicated
emergency department for purposes of EMTALA.

2

Accordingly, the Court need not reach the questions of
whether the Urgent/Walk-in Care qualifies as a dedicated emergency
department based on its licensure or number of emergency outpatient
visits.
5

Medicare

Program;

Clarifying

Policies

Related

to

the

Responsibilities of Medicare-Participating Hospitals in Treating
Individuals With Emergency Medical Conditions, 68 FR 53222-01,
53231 (emphasis added).

CMS made clear that it saw no distinction

between “urgent” and “emergency” care:
We believe it would be very difficult for any individual
in need of emergency care to distinguish between a
hospital department that provides care for an “urgent
need” and one that provides care for an “emergency
medical condition” need.
Indeed, to CMS, both terms
seem
to
demonstrate
a
similar,
if
not
exact,
functionality.
Therefore, we are not adopting the
commenters’ suggestion to except urgent care centers
from dedicated emergency department status. As we have
discussed above, if the department or facility is held
out to the public as a place that provides care for
emergency medical conditions, it would meet the
definition of dedicated emergency department. An urgent
care center of this kind would fall under this criterion
for dedicated emergency department status.
(Id. at 53231.)
dedicated

CMS also stated that “[t]he definition [of

emergency

department]

would

also

be

interpreted

to

encompass those off-campus hospital departments that would be
perceived

by

an

emergency care.”

individual

as

appropriate

places

to

go

for

(Id. at 53248 (emphasis added).)

As noted above, there is no dispute that the Court must give
deference to CMS’s regulations under Chevron U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

See id. at

842-43 (courts must defer to agency regulations where statute is
ambiguous and agency interpretation is reasonable).

Whether the

Court must defer – and if so, what level of deference is required
6

– with respect to the commentary in the Final Rule is a closer
question.

Some courts have held that, because agency responses to

comments are interpreting the agency’s own regulations, deference
under Auer v. Robbins, 519 U.S. 452 (1997) applies and “the
agency’s interpretation is ‘controlling unless plainly erroneous
or inconsistent with the regulation.’” Rupert v. PPG Indus., Inc.,
No. 07CV0705, 2009 WL 596014, at *41 n.5 (W.D. Pa. Feb. 26, 2009)
(internal quotation marks omitted) (quoting Auer, 519 U.S. at 461);
see also Doyle v. City of New York, 91 F. Supp. 3d 480, 484–85
(S.D.N.Y. 2015) (finding that Department of Labor response to
comments was “neither ‘plainly erroneous’ nor ‘inconsistent with
the regulation,’ and thus entitled to deference under Auer”). Even
where courts have not gone so far as to award Auer deference, they
have noted that some consideration of the agency’s interpretation
is appropriate.

See United States ex rel. Phalp v. Lincare

Holdings, Inc., 116 F. Supp. 3d 1326, 1349–50 (S.D. Fla. 2015)
(“[P]ublished guidance and responses to specific comments — which
are a byproduct of the rulemaking process — . . should be accorded
due weight.”); United States v. Shaw, 106 F. Supp. 2d 103, 113 (D.
Mass. 2000) (noting that a “court is wise to consider” the agency’s
interpretation of the regulatory scheme discussed in the final
rule).
In this case, regardless of whether the Court were to award
full

Auer

deference

or

merely
7

give

some

weight

to

the

CMS

commentary, the result is the same.

Defendant deliberately used

the word “Urgent” in naming the Urgent/Walk-in Care; it could have
simply called it a “Walk-in” clinic.

Indeed, the evidence shows

that, based on the name of the clinic, Mrs. Friedrich herself
thought she was going to a hospital emergency room: she texted
several coworkers that she had gone to “the ER.”
Opp’n, ECF No. 49-23.)

(Ex. 22 to Pls.’

Furthermore, Plaintiffs cite deposition

testimony from several staff members indicating that they were
aware that patients with emergency needs sometimes reported to the
Urgent/Walk-in Care, and had to be prepared for that.

(See Pls.’

Opp’n 15-18, ECF No. 49-1.)
Defendant argues that the Urgent/Walk-in Care’s website makes
clear that it does not offer emergency care.

The website states:

The Urgent/Walk-in Care clinic is for those occasions
when you want to see a doctor right away, yet don’t need
emergency room level care. The staff at the clinic can
treat urgent needs such as: deep lacerations, sinus
infections, sprains, sports injuries, minor accidents,
Strep throat, and other conditions requiring immediate
attention. Even if you have a primary care physician,
you may find the need for the Urgent/Walk-in Care
services, which is open Monday through Friday 8 a.m.- 6
p.m.; Saturday 8 a.m.- 4 p.m.; and Sunday 10 a.m.- 4
p.m.
(Def.’s Mot. 12, ECF No. 44 (emphasis in original).)

The website

further

“can

represents

that

the

Urgent/Walk-in

virtually any non-emergency need.”

Care

treat

(Id. (emphasis in original).)

As an initial matter, as Plaintiffs point out, Defendant only cites
the Urgent/Walk-in Care’s current website; it does not present any
8

evidence concerning how the Urgent/Walk-in Care represented itself
at the time Mrs. Friedrich was seen.

(Pls.’ Opp’n 20-21, ECF No.

49-1.) This is simply insufficient for summary judgment. It could
well be the case that this language was added after this lawsuit.
But in any event, the fact that Defendant’s website states that
the Urgent/Walk-in Care offers “urgent” but “non-emergency” care
cannot disclaim the responsibility that comes from presenting
itself as an urgent care center.

Someone driving by the clinic

with an emergency medical need – like Friedrich – would not be
able to make this distinction based on the signage, and certainly
cannot be expected to check the website before walking in with
chest pain.

There is no evidence that Defendant made patients

aware that the Urgent/Walk-in Care was not an appropriate place to
go for emergency care anywhere other than the website.
Defendant also relies heavily on the First Circuit’s decision
in Rodriguez v. American Int’l. Ins. Co. of Puerto Rico, 402 F.3d
45, 49 (1st Cir. 2005) for the contention that an urgent care
facility is not a hospital emergency department.

However, as

Plaintiffs point out, the facility in Rodriguez — a “centro de
diagnostico

y

tratamieto”

or

“CDT”

in

Puerto

Rico

—

independent facility, not associated with any hospital.

was

an

See id.

at 47 (“It is undisputed that the Corazal CDT is an independent
facility and is not attached to a hospital.”).

Thus, the First

Circuit found that EMTALA did not apply to the CDT because “EMTALA
9

requires the emergency room be of a participating hospital.”
at 49 (emphasis in original).

Id.

Here, Defendants have conceded that

the Urgent/Walk-in Care is a department of South County Hospital.
III. Conclusion
For

the

foregoing

reasons,

DENIED.

IT IS SO ORDERED.

_________________
William E. Smith
Chief Judge
Date: November 1, 2016

10

Defendant’s

Motion

is

hereby