Cox v. Cabell Huntington Hospital, Inc.
Filing
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MEMORANDUM OPINION AND ORDER denying 8 Motion to Dismiss for Failure to State a Claim. Signed by Judge Robert C. Chambers on 3/2/2012. (cc: attys; any unrepresented party) (dcm)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
CARL B. COX,
Plaintiff,
v.
CIVIL ACTION NO. 3:11-0843
CABELL HUNTINGTON HOSPITAL, INC.,
a West Virginia corporation,
d/b/a CABELL HUNTINGTON HOSPITAL,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending is Defendant Cabell Huntington Hospital (“CHH”)’s Motion to Dismiss (ECF No.
8). For the following reasons, the Court DENIES the motion.
I. Background
On November 2, 2011, Plaintiff Carl B. Cox filed a claim in this Court under the Emergency
Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C. § 1395dd et seq. Cox alleges
that on November 6, 2009, he presented to the emergency treatment facility at CHH with a severely
commuted arm fracture and a pain level of 10 on a 1 to 10 scale. Cox alleges he was discharged
from CHH without being adequately screened or stabilized, as required by EMTALA.
Defendant CHH moved to dismiss the claim, arguing that Plaintiff’s claim is in reality a
claim based on negligent medical care, and, therefore, Plaintiff must comply with the pre-suit
requirements of the West Virginia Medical Professional Liability Act (“MPLA”), W. Va. Code
§§55-7B-1 et seq. Specifically, Defendant argues that Plaintiff must provide a screening certificate
of merit executed under oath by a qualified expert before filing this suit. Def.’s Mem. in Supp. Mot.
to Dismiss, ECF No. 6, at 2; see also W. Va. Code § 55-7B-6(b). Plaintiff responded that he did not
plead, and does not intend to pursue, a state malpractice claim; therefore, the MPLA requirements
do not apply to his suit.
II. Standard
In ruling on a motion to dismiss, the factual allegations in the complaint must be taken in the
light most favorable to the plaintiff. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see
also Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993) (“In considering a
motion to dismiss, the court should accept as true all well-pleaded allegations and should view the
complaint in a light most favorable to the plaintiff.”). However, the plaintiff must allege more than
mere “labels and conclusions,” and the complaint must contain “enough facts to state a claim to
relief that is plausible on its face.” Twombly, 550 U.S. at 555, 570. Plausibility is established “when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
III. Analysis
At issue in this case is whether Plaintiff may proceed with a private action under EMTALA
without receiving the screening certificate of merit required by the West Virginia MPLA. The Court
concludes that he may.
The EMTALA imposes on hospital emergency rooms a limited duty to “screen all patients
as any paying patient would be screened and to stabilize any emergency condition discovered.”
Brooks v. Md. Gen. Hosp., Inc., 996 F.2d 708, 711 (4th Cir. 1993). It is not a federal malpractice
act. Baber v. Hosp. Corp. of Am., 977 F.3d 872, 880 (4th Cir. 1992) (the avowed purpose of
EMTALA is “not to guarantee that all patients are properly diagnosed, or even to ensure that they
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receive adequate care.”). Congress instead intended EMTALA to address “patient dumping,” the
practice of refusing to provide emergency medical treatment to patients unable to pay, or transferring
them before emergency conditions were stabilized. Power, 42 F.3d 851, 856 (4th Cir. 1994).
EMTALA requires hospitals to screen and stabilize emergency patients, and provides a private cause
of action for any person “who suffers personal harm as a direct result of a participating hospital’s
violation of a requirement of this section.” 42 U.S.C. § 1395dd(d)(2)(A). A suit brought under this
section is “a suit for enforcement federally-created right under federal question jurisdiction,” Brooks,
996 F.2d at 714, and so the “elements of, and defenses to” the cause of action are defined by federal
law. Id. Under the principals of federalism, “state conditions simply cannot be recognized as
conditions precedent to the vindication of a federally created right,” in the “absence of a federal
statute’s express or implied acceptance of the state based condition for federal liability.” Id.
Two sections of EMTALA expressly incorporate state law, but neither accepts Defendant’s
proposed “state based condition for federal liability.” Id. First, § 1395dd(d)(2)(A) states that an
individual harmed by an EMTALA violation may “obtain those damages available for personal
injury under the law of the State in which the hospital is located, and such equitable relief as is
appropriate.” However, this provision clearly incorporates state law only as a measure of damages,
and does not incorporate procedural requirements for pursuing an EMTALA action. See Power, 42
F.3d at 860 (stating that this section “expressly adopts state-imposed limitations on damages”)
(emphasis added); Fotia v. Palmetto Behavioral Health, 317 F. Supp. 2d 638, 644 (D.S.C. 2004)
(“Instead of requiring the court to ‘convert’ Plaintiff’s EMTALA cause of action into an analogous
state law claim, the statute simply specifies that the damages allowed for EMTALA violations are
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those damages available in personal injury claims in [the state].”). This section does not, therefore,
incorporate the MPLA screening certificate requirement.
Second, EMTALA provides that “only state and local laws that directly conflict with the
requirements of EMTALA are preempted.” 42 U.S.C. § 1395dd(f); The Matter of Baby K, 16 F. 3d
590, 597 (4th Cir. 1994). Defendant argues that the West Virginia MPLA does not directly conflict
with EMTALA, and, therefore, Plaintiff must comply with its requirements. Plaintiff claims
violations of both the screening and stabilization requirements of EMTALA. The inquiry is thus
whether the asserted requirements of the MPLA “directly conflict” with the private right of action
for violation of either section. Although Defendant emphasizes only the screening certificate
requirement of the MPLA, the certificate is just one of the statutory scheme’s procedural
requirements for pursuing a medical malpractice claim in West Virginia. Along with obtaining the
certificate, West Virginia medical malpractice plaintiffs must, for example, file a notice of claim
with all defendant providers, and obey specific time limits at various stages of bringing an action.
See W. Va. Code § 55-7B-6(b).
These requirements directly conflict with the EMTALA private right of action and are
therefore preempted. This result is directed by the Fourth Circuit’s decision in Power v. Arlington
Hosp. Ass’n, 42 F.3d at 856, which held that Virginia’s pre-suit requirements for medical
malpractice actions directly conflict with EMTALA, and its decision in Brooks, which expressed
significant skepticism as to whether Maryland’s pre-suit requirements for medical malpractice
actions could be “tolerated” by EMTALA. 996 F.2d at 714. In Power, the court reasoned that the
direct conflict arises because the timing requirements in state pre-suit procedures, and the time
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consumed in complying with those procedures, has an adverse effect on EMTALA’s statute of
limitations. 42 F.3d at 866.
West Virginia’s MPLA contains specific waiting periods, and therefore directly conflicts
with EMTALA’s statute of limitations. See W. Va. Code § 55-7B-6(b) (“At least thirty days prior
to the filing of any medical professional liability action against a health care provider, the claimant
shall serve . . . a notice of claim on each health care provider the claimant will join in litigation.”).
However, even if the Court considers only the screening certificate requirement, and not the wait
period requirement (as Defendant appears to urge), the time involved in obtaining an expert and
executing a certificate of merit under oath would also conflict with EMTALA through an adverse
effect on EMTALA’s statute of limitations. See Brooks, 996 F.2d at 175 (noting that the Maryland
pre-suit requirement in that case—not a wait period, but an arbitration requirement—might conflict
with EMTALA by its “adverse effect” on EMTALA’s statute of limitations). See also Holmberg
v. Armbrecht, 327 U.S. 392, 395 (1946) (“If Congress explicitly puts a limit upon the time for
enforcing a right which it created, there is an end of the matter. The Congressional statute of
limitation is definitive.”); Vogel v. Linde, 23 F.3d 78, 80 (4th Cir.1994) (strictly construing
EMTALA’s statute of limitations). Thus, the MPLA pre-suit requirements at issue in this case are
preempted because they directly conflict with EMTALA through their adverse effect on EMTALA’s
statute of limitations.
Defendant briefly cites to one Second Circuit case, Hardy v. New York City Health & Hosps.
Corp., 164 F.3d 789, 794-96 (2d Cir. 1999), which held that New York’s pre-suit requirements did
not conflict with EMTALA. The Ninth Circuit also held that a state’s pre-suit requirements do not
directly conflict with EMTALA. Draper v. Chiapuzio, 9 F.3d 1391, 1393-94 (9th Cir. 1993) (per
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curiam). However, these cases are not controlling. As at least one district court has noted, these
decisions are contrary to Power. Merce v. Greenwood, 348 F. Supp. 2d 1271, 1275 (D. Utah 2004)
(following Power and rejecting Hardy and Draper). In this district, of course, Power is the
controlling authority. Additionally, the pre-suit requirements at issue in Hardy and Draper were
“notice of claim” requirements, which required only that a plaintiff give notice to defendants of an
intent to bring suit. See Bird v. Pioneers Hosp., 121 F. Supp. 2d 1321, 1324 n. 1 (D. Colo. 2000)
(following Power and distinguishing Hardy and Draper because the pre-suit requirements in those
cases were non-burdensome notice of claim requirements). As a practical matter, a bare notice of
claim requirement conflicts only minimally with EMTALA’s statute of limitations. In comparison,
the more extensive procedures in W. Va. Code § 55-7B-6(b) require a plaintiff to wait thirty days
after giving notice before filing suit, and to procure a screening certificate of merit—among other
requirements. Thus, the MPLA’s relatively extensive pre-suit procedural requirements directly
conflict with Plaintiff’s pursuit of his EMTALA action.
The MPLA also directly conflicts with Plaintiff’s EMTALA disparate screening claim by
imposing additional substantive conditions on his recovery. A physician providing a MPLA
certificate of merit has to consider whether, and how, a plaintiff’s medical care was below the
applicable standard of care. The EMTALA screening cause of action requires a very different
inquiry: not whether the screening met the applicable standard of care, but whether it was the same
as that provided to other patients in the same facility. Brooks, 996 F.2d at 711. Thus, a plaintiff
with a viable EMTALA screening claim could fail to acquire a MPLA certificate of merit if the care
provided—although worse than that provided to other patients at the same facility—met the relevant
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standard of care. In this scenario the state law requirement would directly conflict with the remedial
purposes of EMTALA, and would be preempted. See id. at 715.
In sum, Defendant argues that Plaintiff’s claims must be dismissed because Plaintiff has not
complied with the pre-suit requirements of the MPLA. However, the MPLA pre-suit requirements
directly conflict with the Plaintiff’s federal EMTALA claims, and are therefore preempted by 42
U.S.C. § 1395dd(f). Defendant’s Motion to Dismiss is DENIED. The Court DIRECTS the Clerk
to send a copy of this written Opinion and Order to counsel of record and any unrepresented parties.
ENTER:
March 2, 2012
ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE
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