please the court my name is mike holland i represent the appellant's in this case alice hassel as guardian of her daughter cheryl hassle and richard hatsell this is an appeal there rises from the courts in tree of summary judgment not completed thanks it's the breakdown in following through a medical malpractise issue rather than a failure to make a good faith effort to screen well your honor the initial presentation included a complaint by her by her mother that she had not been urinating and that under the standards of protocols that wizard would customarily use in evaluating a patient with that presentation of your analysis would be ordered and your nels to test would be completed was expected to be completed by the nursing staff that was not done and the reasons for that not being done from the evidence are the fact that she was unable to urinate provide a sample which confirmed the presenting problem so that's part and parcel of what an appropriate screening was based on what what w patients presenting with similar complaints and in this instance it was not done which gives rise to the in college claim for failing to appropriately screen it's it's not that it's not simply negligence it looks to him tallow looks to what is done for other patients under similar circumstances with similar complaints well it seems to me that there is no if there was no refusal to scream there was no improper screening for discriminatory purposes or reasons you know if there had been all of that would fall there and talab nanny courts looking at the cases of how that negligence in the screening or diagnostic process or faulty screening or not and food with medical malpractise because that kind of thing here seems to raise issues of the patient or any discriminatory purpose have consistently found that that is not a requirement under and then tell a case there's nothing in the statute itself to almost consistently and there's there are out liers but the the courts much of considered it have rejected that as a requirement based on the fact that it's not part of the language of the statute and the the malpractise part of it typically involves a malpractise cases looking at what is done by reasonably prudent providers of the same specially it looks to questions of reasonable ness under the circumstances but the way that the cases have been interpreted on talla the standard is what was done for patients at this facility it's not a prevailing standard of care it looks at this facility what did this facility typically do to provide an appropriate medical screening for patients presenting with these kinds of complaints let me keep i'll get gentler excuse me let me ask the question this way your position sounds to me as though you read emtala as a statute that imposes liability on hospitals for failure to follow their own protocols in the emergency room whatever those protocols may be and i'm not sure that's what i'm told dots well the because you keep them sizing well you know they said it had to be your analysis issue to follow through you know and i understand it probably their standard protocol does call for your analysis but it sounds to me like you think any time they don't follow their standard protocols you've stated in them taluk klein i believe that's correct your honor i mean if really i'd if we have i didn't think that was your claim i thought your claim was that if a doctor exercises medical judgment so as to depart from those protocols in one way or another that's ok the doctor could have said oh we don't need the er analysis but there's no evidence that that happened here there's no evidence of medical judgment was made let's correct i mean this this does this fact situation is distinguished from these cases that cited in the district court's opinion the vicar's case the summers case in which the court found there was a medical judgment by the physician who was examining the patient in the laceration somerset's chest trauma the population's done and there's no need for x rays he made that medical decision from the courts in those circumstances said that's malpractise that's a decision making a question of reasonableness but in our case based on the information gained from the assessment of her when she came the decision is made to order your analysis so it's a it's it's not a situation where there is a decision that she does not need to test the test was ordered  different standards negligence in and screening in terms of a malpractise case would require elements approving what's the standard of care what you physicians do under similar circumstances and what was done here so you would say just to clarify that you would say if they went ahead and said they were doing your analysis but they just grabbed the wrong kit or something that would be negligence and screening not it all is different it is that you're not doing it at all is different but on a second visit they didn't do it at all there was no nothing ordered for a waste of your name tracked problems on the confirming the presenting problem and the bottom line is that she did not receive the screening that would have been provided to patients under similar circumstances focusing on what the evidence being what did they do the deposition testimony relates to what did wish or typically do under similar circumstances and not was not focused on what's the prevailing standard of care which raises questions of reasonableness decisionmaking discretion and that's a different issue  questions yes first of all the do i understand correctly your position is that while medical malpractise longer state law and emtala are different bodies of law there can be instances of overlap and  you think this is one of them yes you know there's it's not a complete defense to just so oh you've got a remedy under mental medical malpractise would you have to look more closely you haven't looked more closely and then do you think we need to consider and decide separately about the may twenty nine visit in the may thirty induced so why or why not well i don't think it's necessary to decide separately they are  they are they are tied together in the sense that when she comes back on the second visit she is not had that she has the same problem with the not urinating doctor told yes he in the family when they arrive she's brought by ambulance to the hospital but when they arrive the family does tell the physician that she is not yearning and there is nothing done in response to that issue and that focused on her son assaulting her broken nose yeah correct yeah i mean i guess frankly that's the easier one for to understand in terms of let's focus on the trauma and not necessarily on potential into one causes but maybe that's a jury question from your point of view i think it is a jury question the that the circumstances here bearing on what was done for her what's typically done there are there right with factual questions and particularly in light of the defense position being well maybe there were reasons why we didn't do it here they don't justify why but sometimes we don't do it we don't necessarily do the order of your analysis but these are questions which call for the trier fact to consider all the evidence relating to the particular circumstances during these visits which we believe creates issues of fact requiring you to be remanded to the district court thank you very much thank you  pleasant counsel men and chief judge there please the court this court's that affirm the district summary judgment order for two reasons first the undisputed evidence shows that which your hospital provided cheryl with appropriate medical screenings  exercising medical judgment and first diagnosing her with constipation and then secondly by screen her for injuries due to a fall so can i ask you about that because some i'm very bothered by particularly the screening the first day because it seems to me she presents not with one problem constipation but she presents with two problems constipation and inability to urinate and it seems to me your position is that patient who presents with more than one problem has been adequately screened if only one of the problems is screened because she certainly is not screened for the urine the difficulty in euro nations so you know somebody shows up with a ration of broken leg you know you get to look at the broken leg and not the rest of you i don't know i mean there there are all kinds of things people could have more than one thing wrong with them and it's not clear to me the screening  accomplished if they just pick one thing where i think our position is not show up the over ration your pregnant you know what i think i actually think that this is really what the summer sport want to address i think this  sentence in the summers court decision kind of brings it to where they stated that it would always be possible to characterize negligence in the screening process as non uniform treatment no but i am not there i'm just i'm not asking how well they screened her or anything i'm talking about the fact that when she shows up and they are told there are two problems vowel in urine and they do the x ray that's fine you know that tells them something about the bow issue but they don't do anything for the other problem and we don't see anything in the record saying there was a medical judgment that this other thing didn't need to be screened and so we don't screen for things that the doctors don't think obviously this isn't a complete physical you know they don't need to screen people for everything but if the standard protocol is that somebody who comes in with a urinary blockage problem at least gets your analysis then which she presented she also had symptoms of constipation this whole issue with the urinary tract system it was arguably missed and then that would be negligence but it would certainly be negligence to miss that but i think when they order the your analysis and they don't follow through after she tries for an hour to produce or to reduce a sample if there had been any kind of follow up on that at all very cheap you know somebody could have stuck a catheter into or something we're not talking about giant expense for the hospital or anything a you found it you know which also gets discussed somewhere in the medical testimony there is although there is a decision that she needs to be screened for this and that's what we're sure does they don't do it and it's this like two problems wrong with you both of which need screening but we didn't do one of them you're out of that these are the exact same arguments that were made in vickers the exact same arguments that were made in somers is that in conditions and the focus on some to the detriment of the other when she came and she something like this a case of negligence rather than a failure to screen when she came in she she had complete she said it should not have a bell movement for four days and she said she would she was in pain and she and then they asked her the doctors asked her what kind of medications on your own and she said i'm on medications that would lead to problems with constipation so i mean i've heard a lot of discussion this morning about let's just don't talk about the language of the statute let's see what the purpose of the statute is this at its core is an anti dumping statute this kill court recognise that and bill or it's looking at the statute it's just talking about a medical condition the hospital must provide for an appropriate medical screening examination within the capability of the hospital's emergency department right in the fact that you are not talking about patient dumping although we the nonmoving party they are alerted to the fact that she's not hearing me now i'm not urinating they are it's an unusual situation it's something that requires some follow up if you're not if you look at the nurse fishburn she submitted an affidavit in this whole issue because that the connection between again if somebody is diagnosed and treated for constipation and then comes in with a broken nose or suffers a fall and is diagnosed and treated for a broken nose then the question becomes are have we failed to treat them have we have we not done so your key actually think this case is all about the screening ok we're at the other day then then we have evidence that the screening that this was part of what was normally ordered in this hospital that's the evidence and then so what you're saying is the hospital actually doesn't have a protocol that requires actually doing the tests that are ordered what i'm saying is they're ok to just sort of write down we're ordering this test or that test and not do it no your honor what i'm saying is that there's no evidence in this record that this patient was ever diagnosed with the urine or system problem and nurse fishman if i could she said that based on my custom and practice if i have a patient who cannot or will not provide a urine sample and your analysis has been requested i would advise the physician and ask what the physician wants me to do i've had physicians tell me that they believe they have found the cause of the problem with the urine samples no longer necessary if that is the case the power and crews those kids decisions both of which seem to me pretty expressly to address this problem about the difference between innocence negligence screening misreading results carrying out tests hard to understand how the patient hasn't been treated appropriately and i'm not i missed i mean perhaps i misunderstood you i thought it was pretty clear at least on summary judgment we have to assume that your analysis or a follow up blood test in the absence of an ability to produce any urine would have detected the kidney malfunction problems that became so much worse in the coming days i think it might have been your honor but again it's that that  didn't do that and they didn't focus in on that that that would have been a medical that would have been a mistake in a medical judgment that i'm asking you to address power and cruise vasquez which both say that failure to carry out needed tests amounts to an intel of alibi violation and your honor my response to that would be this that that case is inconsistent and it would be a minority view of what most of the circus that have decided this would say which is that we've sort of which other cases have dealt with failures to to to do the protocol i'm not sure i'm up on a bit of but honestly i'm not sure what protocol you're claiming that the hospital failed to follow rebuttal but i thought we at least have in this case an order to the to get a urine sample and analyze it and i would think th and that would be negligence or honor and that is are going to be a core part of their state medical malpractise lawsuit what's the status of them their status right now is with respect to both presentations on the twenty ninth and the thirtieth i believe in opposing counsel written if i'm wrong that there was the standard of not but again the court if the court goes this way and the court finds that and plaintiffs are able to come in and say here's all the things that you should have done here's what you didn't do and again this is a your analysis we need to understand that their claim on the  analysis test is passed as is wrapped in the context of you knew there was a problem with the system there is no evidence at all in this record that this your analysis was ordered to address the problem that they complain of it's not the good evidence that the evidence is that the mother reports that the daughter has not been urinating for a significant period of time and your people normally don't go twenty four hours much less longer than that without urinating you're on or there's that evidence there is that significant evidence that your honor there's all kinds of evidence then they order a test i mean that's what to me anyway that's a very important fact you know i'm not asking them to decide which tests ordered they were geared to test there's all kinds of evidence on what they were told there's all kinds i think we have to take that for right now in the light most favorable to the plaintiffs so there is may prove to be you know a jury may find otherwise we understand that they may have not been told anything you know i mean the jury may say all they were completely silent about your analysis in which case that would be quite different for you to it without a context that any honor judge mckinney because i think really what this case turns on which all the other circuits have of have tried to focus in on when they're trying to develop with their lawyers is that how do you define appropriate screening mechanism and in the cleveland  interesting because they're the circuit said this is one of the best weasel words that legislators could use right because obviously you don't want to do something that's inappropriate so you do inappropriate screening that can as i'm sure is what he said the hospital satisfies him talos appropriate screening mechanism requirement if it provides a patient with an examination comparable to the one offered to other patients presenting similar symptoms i can tell you this their position and the questions that up that i've heard from the court today th they are presupposing that somehow someway this hospital staff diagnosed a problem with that with the urinary tract system because because that's the standard if if they if they diagnose that should they have followed through on the analysis of course they should have and if they didn't then they didn't get a comparable treatment but you would not follow through on your analysis if you have only diagnosed constipation that the doctor came in and sat down and said i think you're constipated here is medicine a laxative go home the next day came in while she presented with broken bones from a fall they diagnosed with those with broken bones that took pictures they took all kinds of tests there is no evidence in regard to the contention that there was no perception that she had a presenting problem related to a urinary tract the mother not only advised the staff of this but then you're analysis order with the ordering physician testifying that this was a test he would order for someone who's retaining your and so can you tell me whether when the mother informs the personnel were shared about the problem does she give any indication of how long this has been going on you know quote she isn't  is not fully informative well i think the deposition testimony was she hasn't been urinating she hasn't been having any kind of bathroom functions and is there any like for a day for two days for it not not in the i'm no reference to that ok yes and the the other point on the perceiving that there was an issue relates to the fact that when they tried to get the sample she was unable to urinate which was in the nursing staff was advised of those circumstances so there was an awareness of the urine or problem could i ask you judge a question to mr babbitt is articulate the standard for us standard as a relates to the screening to screening is under talent the facility is required to use the procedures protocols that it uses when a patient presents with similar complaints that is focuses on complaints rather than diagnoses well it it does focus on the presenting problem and one of which is that your unary track and then it looks to what does this facility normally do rather th the malpractise the standard being not limited to this facility but a more prevailing standard of care is what is done by reason be prudent practitioners of the same specialty under similar circle you would get into correct versus incorrect diagnoses on the malpractise side versus just the you know what tests do we run the tests have to be determined based on the initial presenting complaint we have that you know where to start and could i ask just a very practical question here if has the committee the review committee found my aleisha a standard of care all right yes your honor that often produces settlement discussions should we hold off there have been no settlement discussions and efforts have not been productive in that regard so the side will decide the case but if there are settlement discussions we'd want to know about them ok i understand