Fewins et al v. CHS/Community Health Systems Inc et al

Filing 111

MEMORANDUM OPINION AND ORDER: The Court severs Plaintiffs claims against LGMC from the rest of Plaintiffs claims, and stays all claims in this litigation other than Plaintiffs claims against LGMC. (Ordered by Judge Barbara M.G. Lynn on 1/25/2016) (ran)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

DAVID FEWINS AND MELISSA FEWINS,
INDIVIDUALLY AND AS NEXT FRIEND
FOR D.A.F., a Minor,
Plaintiffs,
v.
CHS/COMMUNITY HEALTH SYSTEMS,
INC., d/b/a LAKE GRANBURY MEDICAL
CENTER, SCOTT JONES, M.D., and
QUESTCARE MEDICAL SERVICES, P.A.,
Defendants.

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Civil Action No. 3:14-cv-0898-M

MEMORANDUM OPINION AND ORDER
This Memorandum Opinion and Order sets forth the grounds for the Court’s originally
pronounced decisions (1) granting the Motion for Summary Judgment [Docket Entry #54], filed
by Defendant Granbury Hospital Corporation d/b/a Lake Granbury Medical Center (“LGMC”),
and (2) denying the Motion for Partial Summary Judgment [Docket Entry #61], filed by
Plaintiffs David Fewins and Melissa Fewins, individually and as next friend for D.A.F., a minor.
I. Background
On Friday, June 29, 2012, Plaintiff Melissa Fewins took her six-year-old son, D.A.F, to
the emergency room at LGMC because he had been complaining of pain in his left leg since
suffering a fall six days earlier. Plaintiffs did not have health insurance. Upon D.A.F.’s arrival
at LGMC, the nursing staff performed a triage assessment and measured his vital signs, which
were normal. D.A.F. rated his pain as a ten, using the Wong-Baker face scale, on a one-to-ten
scale, with ten as the worst pain ever. Defendant Scott Jones, M.D., a board certified emergency
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medicine physician, also examined D.A.F. and noted contusions on both hips. Dr. Jones ordered
lab tests and a CT scan of D.A.F.’s lower extremities and pelvis. The results of those tests were
generally normal, except that D.A.F.’s white blood cell count was elevated and the CT scan
showed subcutaneous contusions and a hematoma/seroma on the right hip. Dr. Jones diagnosed
D.A.F. with contusions on both hips and discharged the child from the LGMC emergency room
with instructions that he take Tylenol with codeine for pain, and follow-up with his pediatrician
on Monday, July 2. The next day, however, Plaintiffs took D.A.F. to the emergency room at
Cook Children’s Medical Center (“CCMC”). On arrival, D.A.F. had a fever and swelling and
tenderness in his left leg. D.A.F.’s white blood cell count was lower than it had been on Friday,
and other test results suggested he was suffering from a bacterial infection. CCMC admitted
D.A.F. to the hospital and began administering antibiotics. D.A.F. remained hospitalized from
June 30 to August 10, during which time he underwent several surgeries and was treated for a
methicillin-resistant staphylococcus aureus (“MRSA”) infection. D.A.F. has permanent bone
damage and is at risk for future injuries and infection. Plaintiffs contend that D.A.F. would have
experienced a better outcome if LGMC had administered antibiotics to him on June 29, and
transferred him to a pediatric medical center.
Plaintiffs allege LGMC violated the Emergency Medical Treatment and Active Labor
Act (“EMTALA”), 42 U.S.C.A. § 1395dd, by failing to provide D.A.F. with an appropriate
medical screening examination to determine whether D.A.F. had an emergency medical
condition. According to Plaintiffs, LGMC did not give D.A.F. the same medical screening
examination it provided to other patients with the same or similar signs and/or symptoms; nor
did the hospital provide D.A.F. with a medical screening examination that was consistent with
the applicable national standard of care. Plaintiffs further allege D.A.F. had an emergency

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medical condition that was not stabilized while he was at LGMC, and the hospital discharged, or
“dumped,” him from its emergency room because he was uninsured, in violation of EMTALA.
In the alternative, Plaintiffs contend that LGMC was negligent with respect to the care and
treatment provided to D.A.F.
LGMC moved for summary judgment as to all of Plaintiffs’ claims and causes of action,
arguing that Plaintiffs’ EMTALA screening claims fail because Dr. Jones performed an
appropriate medical screening examination and there is no evidence that LGMC provided a
higher level of screening to other patients who presented with substantially similar complaints.
LGMC further argued that Plaintiffs’ EMTALA stabilization claims fail because Dr. Jones did
not diagnose an emergency medical condition. Finally, LGMC argued that it is entitled to
summary judgment on Plaintiffs’ negligence claims because there is no evidence of negligence.
Plaintiffs disputed LGMC’s arguments and asserted they are entitled to partial summary
judgment because they established, as a matter of law, that the hospital violated EMTALA when
it failed to provide an appropriate medical screening examination to D.A.F. and discharged him
with an unstabilized emergency medical condition. The issues were fully briefed and argued at a
hearing held on August 7, 2015. At the conclusion of the hearing, the Court granted Defendants’
motion for summary judgment and denied Plaintiffs’ motion for partial summary judgment. The
reasons for the Court’s decisions are set forth below.
II. Legal Standards
Summary judgment is warranted “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56. A dispute as to a material fact is genuine, if the evidence is sufficient to permit a reasonable
factfinder to return a verdict for the nonmoving party. Crowe v. Henry, 115 F.3d 294, 296 (5th

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Cir. 1997). A fact is material if its resolution could affect the outcome of the action. Weeks
Marine, Inc. v. Fireman's Fund Ins. Co., 340 F.3d 233, 235 (5th Cir. 2003). The substantive law
determines which facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986). A party seeking summary judgment who does not have the burden of proof at trial, like
LGMC here, need only point to the absence of admissible evidence to support the nonmovant’s
claim. See Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir. 1995). Once the
movant meets its initial burden, the burden shifts to the nonmoving party to produce evidence or
designate specific facts in the record showing the existence of a genuine issue for trial. See
Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006). By contrast, a movant who
bears the burden of proof at trial, such as Plaintiffs, must establish “beyond peradventure all of
the essential elements of the claim or defense to warrant judgment in his favor.” Fontenot v.
Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986) (emphasis in original). The “beyond
peradventure” standard is a “heavy” burden. See Carolina Cas. Ins. Co. v. Sowell, 603 F. Supp.
2d 914, 923–24 (N.D. Tex. 2009).
III. Analysis
A. EMTALA
EMTALA is an anti-patient dumping statute, enacted to prevent hospitals from refusing
to treat patients because of their non-insured status or inability to pay. Marshall v. E. Carroll
Parish Hosp. Serv. Dis’t., 134 F.3d 319, 322 (5th Cir. 1998). EMTALA requires a hospital to
provide any person who presents to the emergency room “an appropriate medical screening
examination . . . to determine whether or not an emergency medical condition exists.” 42 U.S.C.
§ 1395dd(a). An emergency medical condition is “a medical condition manifesting itself by
acute symptoms of sufficient severity (including severe pain) such that the absence of immediate

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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.” Id., § 1395dd(e)(1). If the hospital determines that such a condition
exists, the hospital must either stabilize the person’s condition, or, under certain circumstances,
transfer the individual to another medical facility. Id., § 1395dd(b). The Act provides a private
cause of action to a person who suffers harm as a direct result of an EMTALA violation. Id., §
1395dd(d)(2)(A).
1. Screening Claim
Plaintiffs first contend that LGMC violated EMTALA because it failed to provide D.A.F.
an “appropriate medical screening examination.” EMTALA does not define what constitutes an
“appropriate screening examination,” but the Fifth Circuit has held that such an examination is
“a screening examination that the hospital would have offered to any other patient in a similar
condition with similar symptoms.” Guzman v. Mem. Hermann Hosp. Sys., 409 F. App’x 769, 773
(5th Cir. 2011) (quoting Marshall, 134 F.3d at 323). Whether an examination is considered an
“appropriate medical screening examination” is determined “by whether it was performed
equitably in comparison to other patients with similar symptoms,” not “by its proficiency in
accurately diagnosing the patient’s illness.” Marshall, 134 F.3d at 322. A plaintiff may prove an
EMTALA violation by (1) pointing to differences between the screening examination that the
plaintiff received and examinations that other patients with similar symptoms received at the
same hospital; (2) showing that the hospital did not follow its own standard screening
procedures; or (3) showing that the hospital provided such a cursory screening that it amounted
to no screening at all. Guzman, 409 F. App’x at 773; Battle v. Mem. Hosp. at Gulfport, 228 F.3d
544, 558 (5th Cir. 2000).

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Judged against these standards, the Court concludes, based on the factual record, that
LGMC provided D.A.F. an “appropriate medical screening examination,” as required by
EMTALA. The summary judgment evidence shows that LGMC nurses completed a triage
assessment and measured D.A.F.’s vital signs within a few minutes of the first time he presented
to the emergency room. LGMC App. at 6, 136. Shortly thereafter, Dr. Jones, a board-certified
emergency medicine physician, also examined D.A.F. Id. at 2, 27. Dr. Jones’s examination
consisted of taking a patient history from D.A.F. and his mother, and conducting a physical
examination, including a neurological motor exam. See id. at 2-3, 51 & 56. The initial
examination lasted approximately fifteen minutes. See id. at 2. Dr. Jones ordered various
laboratory tests, including blood tests consisting of a Basic Metabolic Panel and a Complete
Blood Count, as well as a urinalysis. Id. at 4, 57. He also ordered a CT scan of D.A.F.’s lower
extremities and pelvis. Id. While D.A.F. and his mother were waiting for the results of these
tests, LGMC nurses monitored D.A.F. and assessed his vital signs. Id. at 7, 8. The nurses
consistently noted that D.A.F. exhibited no neurological, cardiovascular, or respiratory problems.
Id. Dr. Jones reviewed the test results and discussed the CT scan with LGMC’s staff radiologist.
Id. at 3, 60-61. Dr. Jones then reevaluated D.A.F., found his vital signs to be stable, and
diagnosed D.A.F. with contusions on both the right and left hip. Id. at 3, 4. Dr. Jones concluded
D.A.F. was stable and ordered that he be discharged from the emergency room. Id. at 4. This is
not the type of screening that was so cursory that it amounted to no screening at all.
Plaintiffs attempt to establish a fact question regarding alleged disparate screening by
pointing to medical records from three other patients they contend had symptoms similar to those
of D.A.F. but were admitted to the hospital for further evaluation and treated with antibiotics.
The first comparator patient was an 81-year-old man who, like D.A.F., presented to the LGMC

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emergency room complaining of lower leg pain. See LGMC App. at 580-96. Initial lab tests
revealed his white blood cell count was elevated. Id. However, the patient also had a history of
serious medical conditions, including recent cellulitis, for which he was taking penicillin,
prescribed by an infectious disease specialist. Id. The second comparator was an obese, 58-yearold man who presented to LGMC with hip pain; initial tests revealed a higher than normal white
blood cell count. Id. at 597-645. He had a medical history of asthma, congestive heart failure,
hypertension, diabetes, renal failure, and atrial fibrillation. Id. He was taking at least ten prescription
medications for his long-standing, various health concerns at the time he presented to LGMC. Id.
The third comparator was a 79-year-old female suffering from dementia, who presented to LGMC
with a sudden onset of weakness and pain in her right knee. Id. at 646-77. Her lab test results
showed a high white blood cell count. Id. The woman had previously had surgery on her knee

and had a prosthesis. Id.
EMTALA is implicated only when other individuals who are perceived to have the same
medical condition receive disparate treatment. Marshall, 134 F.3d at 323 (citing Vickers v. Nash
General Hosp., Inc., 78 F.3d 139, 144 (4th Cir. 1996). Here, none of the alleged comparator
patients were perceived to have the same medical condition as D.A.F. Dr. Jones perceived
D.A.F., a pediatric patient who was otherwise in good health, to be suffering from pain caused
by a fall; he did not perceive that D.A.F. might be suffering from an infection. By contrast, the
screening doctor at LGMC clearly perceived the 81-year-old man, who had a history of drugresistant cellulitis on the same leg, to have cellulitis. LGMC App. at 580-96. The doctor who
initially screened the 58-year-old man did not perceive him to be suffering pain from a fall. Rather,
he determined further evaluation was required, because there was no known trauma or injury to
explain the hip pain, and there were multiple other chronic conditions that could be causing his
complaints. Id. at 597-645. Dr. Jones screened the 79-year-old woman, but never perceived her to

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be suffering pain from a fall. Id. at 646-77. Because Plaintiffs have failed to identify comparator

patients who were perceived to have the same symptoms to D.A.F., they have failed to raise a
genuine fact issue that LGMC violated EMTALA by disparate screening.
To the extent Dr. Jones failed to appreciate the nature of D.A.F.’s condition or failed to order
additional testing to rule out infection as the cause of his complaints, such failures do not
implicate EMTALA. EMTALA is not a substitute for state law malpractice actions, and was not
intended to guarantee a proper diagnosis or to provide a federal remedy for misdiagnosis or
medical negligence. See Marshall, 134 F.3d at 323-24; Martinez v. Porta, 598 F. Supp. 807, 813
(N.D. Tex. 2009).
Plaintiffs also contend that LGMC violated its pain management policy, which calls for
additional consideration of the possibility of infection where the patient complains of pain.
According to Plaintiffs, the evidence shows that LGMC nurses were aware of D.A.F.’s
inconsistent complaints of pain, yet D.A.F. was discharged without any additional or more
specific tests to determine whether his pain was caused by an infection. However, Plaintiffs
have not shown that LGMC’s pain management policy is an emergency room screening policy
which provides the basis of an EMTALA claim. Instead, the evidence shows that the pain policy
is a hospital wide nursing policy that has nothing to do with screening for emergency medical
conditions.
The Court therefore concludes that the record establishes that LGMC provided D.A.F. an
“appropriate medical screening examination,” as required by EMTALA, and grants summary
judgment in favor of LGMC, and against Plaintiffs, on the screening claim.

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2. Stabilization Claim
Plaintiffs also claim that LGMC violated EMTALA by failing to stabilize D.A.F.’s
condition prior to discharge. EMTALA requires a hospital to stabilize a patient’s emergency
medical condition. See 42 U.S.C. § 1395dd(b)(1). However, the duty to stabilize does not arise
unless the hospital has actual knowledge that the patient has an emergency medical condition.
See Marshall, 134 F.3d at 325; Battle, 228 F.3d at 558. The statute defines emergency medical
condition as “a medical condition manifesting itself by acute symptoms of sufficient severity
(including severe pain) such 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. § 395dd(e)(1)(A).
In this case, it is undisputed that Dr. Jones diagnosed D.A.F. with a contusion, which is
not an emergency medical condition. See LGMC App. at 4. Dr. Jones’s explanation of his
findings plainly demonstrates that he did not perceive D.A.F. to have an emergency medical
condition:
Despite very complete and complex evaluation, no evidence of
anything other than a contusion/hematoma. Suspect some element
of muscle strain as well. Patient’s symptoms clearly vary
depending on who is in the room. When left alone with Radiology,
nursing or physician, he has no complaints and ranges both legs
well. When mother is present he begins crying and complaining of
pain. [sic] discussed this with mother and she agrees that patient
sometimes “plays up” injuries with her, and notes that he played
video games all day with his father yesterday without complaint. I
suspect he is, indeed, having some pain. However, do not see any
evidence of serious etiology.
Id. Under EMTALA, the actual diagnosis is taken as a given, and hospitals are only obligated to
stabilize conditions they detect. Guzman, 637 F. Supp. 2d 464, 508 (S.D. Tex. 2009), aff’d, 409

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F. App’x 769 (5th Cir. 2011). Because what Dr. Jones perceived D.A.F. to have was not an
emergency medical condition, LGMC’s duty to stabilize D.A.F.’s condition was never triggered.
LGMC is therefore entitled to summary judgment on Plaintiffs’ stabilization claim.
B. Negligence
Finally, LGMC moves for summary judgment on Plaintiffs’ alternative claim for
negligence under the Texas Emergency Medical Care Statute. Section 74.153 of the Texas Civil
Practice and Remedies Code governs health care liability claims for injuries or death arising
from the provision of “emergency medical care” in a hospital emergency department. Under this
statute, a plaintiff may prove that treatment or lack of treatment by a physician or health care
provider departed from accepted standards of medical care only if the plaintiff “shows by a
preponderance of the evidence that the physician or health care provider, with wilful and wanton
negligence, deviated from the degree of care and skill that is reasonably expected of an ordinarily
prudent physician or health care provider in the same or similar circumstances.” Tex. Civ. Prac.
& Rem. Code Ann. § 74.153 (emphasis added). The “wilful and wanton negligence” standard is
equivalent to the gross negligence standard. Turner v. Franklin, 325 S.W.3d 771, 776 (Tex.
App. -- Dallas 2010, pet. denied). Here, Plaintiffs have not offered competent summary
judgment evidence that LGMC’s nurses engaged in any willful and wanton negligence that
would support a claim against the hospital. To the contrary, both Dr. Jones and Plaintiffs’
medical expert testified that they had no criticism of the care provided by the nurses. LGMC
App. at 70, 90. See Hrg. Transcript at 41 (Plaintiffs’ counsel stating that, except as to EMTALA,
Plaintiffs have not made any claims against the nurses or the hospital). LGMC is therefore
entitled to summary judgment on Plaintiffs’ negligence claim.

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IV.

Conclusion

For the reasons stated, LGMC’s Motion for Summary Judgment [Docket Entry #54] is
GRANTED, and Plaintiffs’ Motion for Partial Summary Judgment [Docket Entry #61] is
DENIED.
The Court severs Plaintiffs’ claims against LGMC from the rest of Plaintiffs’ claims, and
stays all claims in this litigation other than Plaintiffs’ claims against LGMC.
SO ORDERED.
January 25, 2016.

_________________________________
BARBARA M. G. LYNN
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF TEXAS

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