and then i want to talk about the policies that were that were violated in multiple ways by both the doctor in the hospital and the record shows that at the end of the evaluation of house explanation given is that that was done for billing purposes the billing records were obtained and there are no policies at that address that i could find in the hop the ones that were submitted to me the closest thing that i found in the hospital records was on page fourteen ninety seven the record which defines emergent medical condition and the hospital defined that's in the hospital playoff patient services defined that is one of which there is the threat of immediate loss of life and or limb which essentially tracks the impala definition as well so the fact that dr jones wrote in the record and certify that this patient's condition represented a medical emergency raises the fact is you asked to what was meant by that and asked and if it is in fact true then violates in tal about discharging him home disparate treatment and that could be done by showing that a policy used in the screening process is violated or that other patients in the key word here is this other patients with similar symptoms were treated differently and we've done both of those in this case we saw in requests for productions three four five and six to the hospital those screening policies that applied in the emergency room the hospital produced policies that  identified on the record on page fifteen thirty four and fifteen thirty five the emergency room hospital i mean the emergency department policy says that the emergency department and that's not just nurses with the emergency department will follow the hospital wide policy on pain management and the pain management policy which is identified on page the record fifteen thirty five indicates that this policy will ply anywhere in the hospital where direct patient care is provided it says affected departments and then it says direct patient care and then it goes through a list of eleven categories of things that need to be done by the hospital department which would include the physicians and not just the nurses and the reason we know that is because if you look at part c on page fifteen thirty six it talks about when clinicians observe various between verbal self reports  actions then something is supposed to be done to ascertain why the patient is saying there is no pain at rest but refuses to wall because of pain the policy itself requires requires that to be done and it also requires that a diagnosis be reached on the on page fifteen thirty nine section to search for a diagnosis is to be done which is a doctor role not a nurse role which could be causing the pain we deposed a corporate representative and i went through at length the process that was done on an emergency room patient and she describes tree yosh which is not part of him paula and then she described what happens in the emergency room and on page fourteen eighteen through fourteen twenty the records she describes in detail how this emergency room policy i mean how this hospital w policy was supposed to be applied to patients in the emergency department complained of pain and we know where young person developed them or do we know when it's probably going to be impossible to tell when the first organism it entered the body probably two or three days later but we know that the symptoms of most of that were discussed by dr carlson as being significant is the gradual onset of increasing pain which distinguishes it from pain caused by a fall or trauma which is an immediate onset of pain which then should decrease so the type of pain which is again addressed the policy is something that needs to be showed in the third emergency hearing the words this section seems to be that he contracted it as a result of the fall but i'm saying it could have been that he contract it actually at the second care facility and therefore didn't exam with pockets on the leg i get the left and right mixed up as to which one he complained of pain in but the one that c t showed fluid in was the opposite side so the believe that i don't have the thing that triggers a sudden explosion of symptoms is when it spikes a fever which is when it enters of luxury so once the mersey go from being localized in the tissue and hits the blood that's when the patient become septic and that's when you have the risk of septic shock and then things can happen in a hurry at that point in time which is add had not happened at the time you said that it's that had not happened that happened when he was discharged he spiked a fever some sometimes later that night i'm sorry  your question yes can i ask you this is off the the merits but this issue of helen jurisdiction we asked for a briefing i guess from your opponents on the question of whether we had an appellate jurisdiction over all of the apple  do you have any thoughts to offer on that i'm going to have to admit you are not an appellate lawyer a trial lawyer i didn't even look at that part of this and if it's a jurisdictional issue i of the separate appellate use claim i want to go from that standpoint it's not really not going to make seems to me that it's not going to make any difference whether or not there's  candor but i can also see why it would make any difference to what i know that if this case goes back i got to deal with the dollar tissue on them again anyway and i don't care about whether regardless of whether you tried to waive it or not you couldn't do it so that should give you some comfort are you know what about jurisdiction that's fine i just want to give you the opportunity because i had not actually realized till we got the response that we had not asked you to also address it and so i wanted to be sure you had  address the sort of thought a medical emergency in her judgment she didn't even mention that i thought that was unusual because the plain meaning of medical emergency is a medical emergency and well  problem is people go to emergency rooms for of kinds of stuff and i guess they're distinguishing b between their argument is that they're distinguishing between somebody who has a valid complaint and somebody who's just there because i mean they're just there now i have a problem and all kinds of people show up in emergency rooms including people who really just want to talk to someone or just really have no complaint at all versus someone who is about to die  and that whole spectrum and that's what they're arguing do you have contrary evidence as to what that means i have just the common plain meaning of the rule that i believe raises the fact issues that if you're going to put something  that reaches simmers emergency medical condition on disposition and you don't have policies that say this is why you're doing it but you've got a definition that's kind of like that says it means washing to urgent means it's it's coming about emergency means i need to address it right now i don't see those as the same or better but that actually helps me because an emergency is less of an emergency that emergency and it still is defined as one hour because it's ongoing and that's why they have to refer it to someone i mean their argument is they dealt with this young person and addressed his condition and moved on perhaps negligently so but they they did address it that's their argument and that's exactly why we should have a trial on this so that we can decide what that means because i don't think it's as a matter of law i don't think what i guess what i'm stuck trying to say in artfully is there's nothing out there that says what that means as a matter of law and there's certainly enough because i think this is even more fundamental i mean in your life you have the privilege if you will call it that of taking people to the emergency room on occasion and they usually sit there for hours and sat in the emergency room with a gunshot wound for twenty hours and so at i know that's not the standard i agree i'm not holding that up as a standard i'm just saying this seems hard to do with the idea of they didn't do anything made in doing very examination must be done and then because it's not once you put on the standard curse in other words you've got to show that it was cursory sorry but you have to show that there's a fact issue that was cursory and i don't know how you can when they when they did what they did in there is a record of all that how is i don't with respect to the cause of action that you have before us today it's got to be cursory we're not talking about negligence we're not talking about that they could have done more they should have done more it's got to be cursory and it's hard in my mind to say that this was the type of behavior that when they created this particular remedy this particular act that you're saying that that that they were there was that congress was looking at this type of behavior that this was the type of behavior that that they were trying to stop and you're right but in the sense in that there are three ways to prove that an adequate screen exam was done and one of them is you can show that the examination was so minimal that it was cursory believe we've got evidence of that that creates a fact issue based on what the mom says but are but more importantly the other two ways that you show an impala violation based on battle of all the cases out there are did the hospital follow screen pain and and the and the elevated white blood cell count so you could show a violation of policy which treats an impala violation or you can show that other patients with similar symptoms were not treated the same we've got three char patients with similar symptoms that were all transferred for a more in depth evaluation so i believe that we have proven a raise the fact issue on and that is even take into account that they've dalgleish established a standard of care is their that's the purpose of them to keep uninsured patients from being dumped from hospitals a review of the facts in this case shows clearly that lake graham berry medical center did not engage in patient dumpling he did not engage in patient dumping in any of the ways asserted by plaintiffs in their briefs the fact of the matter is the facts in this case are eerily similar to the facts in the guzman case yet there was even more screening done in this case beyond what was done and the fifth circuit this court held that the summary judgment goodman was appropriate in affirmed in judge lane's summary judgment in this case should be affirmed as well the first argument that plaintiffs make in their brief is that the examination and screening was so cursory as to him amount to no examined nation whatsoever candidly i don't think that are going to even pass a straight face test that's the argument that judge l addressed in her opinion first off going line by line through what was done for this patient when he presented like granbury medical center the fact of the matter is he was seen right away he underwent several tests blood tests you know test that the doctor did no no there is no evidence that matter to this analysis i don't believe that it does i think that the opinions that have come from from the circuit and other say that that that the the motivation doesn't necessarily need to examined to find him tell a violation but the fact of the matter is that the patient did go through a extremely thorough screening and again i think when you look at any of the cases cited in anyone's brief in this case the screening that was done in this case is above and do you have to when the dr carlson exclusion argument to when the summary judgment was properly granted argument or not at all those of those are completely separate but do even after reach it i don't we agree with you that they is opinions excluded opinion has more has bearing on the magnitudes claim or does it have bearing on the this other  for for jumping in the say they failed to follow protocol or something of that nature that gets to his opinion with regard to intel but on their alternative the areas of recovery the negligence yes his opinions were struck as to that as well and  did criticize the screening that was done and so don't we have to consider that unless it's stricken or you saying that even considering that it doesn't cause us to have to reverse his opinion with regard to that we saw the objections to his his affidavit in that regard judge lane granted sustain those objections i get that what i'm saying is if we were to disagree with the judge and consider dr there was a cursory screening the only the only way that dr carlson attempts to get into standard of care with regard to emtala is this pain management policy that's the only criticism he has of the nurses he says the pain management policy was violated but the fact of the matter is the pain management policy is not an m talo screening policy that's what judge length found and that's what the evidence shows the evidence is there they have not shown any violation of any emtala screen policy there are specific emtala screening policies that this hospital has specific policies that this hospital has doctor carlson was asked about them in his deposition these he found no violations of any of those policies the only policy he says we violated is this pain management policy but the pain management policy is not an intel a screening policy so it doesn't give them their own intel but to go even further in that regard if for some reason the court would say no it isn't and telescreen policy even though there's case after case showing policies are other other unrelated policies don't give rise to matal to the extent that this wasn't telescreen policy which again we say it was not and i think you have it's clear it was not any violation of it was de minimus at best because the whole purpose of the pain management policy is to assess the patient pain but the facts that are in the record are the patient's pain was assessed not only when he when he showed up but when he left her a note knowledge the pain that was reflected by the other ends and and that he might have been wrong in his assessment of pain which has to do with negligence it doesn't have to do with violating their public policy but that's exactly right their claim is a mistake nelson's claim that they're trying to has pointed out the doctor was aware of the pain that's that's in the record at the time he made the record he testified to it there's no dispute about that even dr carlson testified in his deposition it's part of our summary judgment record that he  knew that dr jones was aware of the patient's pain the fact that he did or didn't do anything about it may go to a negligence question against him but it doesn't go to him told failure the screen he was feeling the pain was revealed to him he chose to through his differential diagnosis process arrived at the decision this pains due to a contusion from a fall they say no it's due to an m r s a soft tissue infection again that goes to his judgment dr jones his medical judgment and the exercise that judgment that's a negligence claim they've got remedies for that they can bring a state law negligence claim against dr jones they've chosen to bring in tal a client because he was whether or not he not only that i thought there was something in the record with respect to the negligence claim to have you told the court that he didn't have a negligence claim against the absolutely at the hearing we cited to it in the record specifically plaintiff's admitted they have no negligence claims against the hospital outside of the top judge lane asked as counsel that twice he admitted that twice so is there a dichotomy here between the hospital being liable for the nurses but not the doctor and then the doctor being liable for his own conduct is that when you talk about the nurses because i know a lot of hospitals take the position that doctors are independent contractors and therefore they're not liable for their conduct they can't take a position on the nurses obviously is that the situation here yes and they go of ledge that were responsible for it he was an independent contractor  that the emtala duty is only as to the hospital doctor doesn't have i understand what i'm trying to in the negligence that what would be the negligence against the hospital if it wasn't waived by this statement to the judge it would be based on the nurses and not on the doctor absolutely the alternative theory that they've played is is going to have a lot on them they've got to that's why it wasn't much of a waiver if it was won because the nurse in duty things and dr who made the call that is now alleged to be wrong and to just kind of set up the procedure on that strike that was not struck on doctor that was struck on discovery matter that's correct that's correct that wasn't part of the daubert motion i was that was our objections at that time i get that and so that they've got that the first there was a cursory exam i think judge lynn again lays that out why why it was anything but cursory the second allegation to try and give rise to an intolerable is that there's a violation this pain management policy that's not a screening policy that what and so then then we move on their their next argument is that apparently the standard of care for dr jones is somehow incorporated into our and emtala process  they say absolutely no cases for that and in fact there's no evidence in the record that somehow that the hospital's policy was any violation the standard care by its physician is is a violation of screening so there's no basis for that argument at all and then finally there disparate treatment argument they want to compare to these three other patients that fails for a number of reasons as well the first being the whether or a patient receives disparate treatment you have to compare the treatment he received and that's not a medical treatment but the treatment as to his screening was he treated as if you have more fundamental question i mean is the hospital in a position to admit someone that a doctor has discharged no the doctor has to be doctor is the one making the medical and i'm not saying you made the wrong medical judgment going there but from the hospital's perspective the doctor has to do the screening and if the doctor does that wrong and therefore discharges a patient should be admitted or admits a patient should have been discharged the hospital's got to go with that it's like on a plane the pilot gets to decide if we have an emergency need to land or not not the flight attendant says that a the hospital can delegate the screening process to a doctor which which every hospital does is a practical matter only a doctor is or a or a physician extender nurse practitioner physician system is going to do the the actual screening  the questioner tall as it was at a uniform screening to your doctors you know treated like patients similarly in the way they do the screening not do they give them the same absolute medical treatment and that gets  to a couple of patients one are there similar patients who are treated differently absolutely not the three compared to patients and we go through that how they are i mean to be fair to the plaintiffs he got the computers from you to give them a bunch of kids that had fallen off the trees and what happened to them he didn't ask for those and that's what he should have asked head of the comparative and you gave him these three people that's not what the record shows what what they asked for they want to patients that were seen in the e r a year before a year after who had a fever and high white blood cell count or high white blood cell count and unexplained limb pain the fact that they want to search by the i c d nine codes which were done these are the only three patients that came back under those what they should have asked for to make it a fair comparison yes because that's that's what we have here is these aren't similar patients what he's saying is well these three patients at the end of the day in fact may have had infection my plaintiff in this case had an infection therefore they're similar because they had white blood cell counts but that's not what the law says the law says you don't i was this by comparison to normal what's normal for a kid our position is it wasn't high it was outside of the range which is the range is weird i know that about why i want to say it's at our hospital twelve and he was fourteen point five twelve thousand another what some people run high and some abnormalities if he was wrong about that that they can sue him for negligence that and that's a great comparison toward the guzman case in the group my case that the child had a high white blood cell count and the doctor didn't even look at the labs they weren't even provided to the hospital still fulfilled its duty and honor him in the guzman here we gave him the lab results that he ordered their expert says those are abnormal that should have sent off bells and whistles dr drew from i'm going to go back to the comparison is a problem with  is that he asked for a group of people who had similar white blood cell count and complaints of crying yes and it precisely patients and the courts as you don't even get to that in this case you have to show it's your burden plaintiff to show there was not a uniform screening it's not the hospital's burden to show we screen everybody uniformly it's applying spurn to show this patient was screened differently than other patients but it's not only what the case law says is what is the treatment for other patients who are perceived to have the same diagnosis it's beyond question in this case that dr jones perceive this patient to have a contusion due to his fall that's what he wrote out that's what he documented if his perception is wrong that's negligence or if in fact the patient had something that was similar to even these three compared to patients it doesn't matter because what the diagnosis in fact is doesn't matter it's what is the patient what is the diagnosis that is perceived if you will get your questions answered ok thank you thank you  we don't even have to reach the whole dr carlson exclusion on dobber issue then you would have to concede there's no intertwining necessary for pendent jurisdiction right if we were to if we were to conclude that with respect to the hospital i think if the court is not going to reach that if that's correct if the court is going to reach the issue as to the hospital and resolve that order we believe  how intertwined do you have to be i mean the circuit has lots and lots of cases of where claims are made against different parties  and in which preliminary or interlocutory orders are made that are similar are made on the same basis if if if because one order is appealable all the orders on the other cases where that is decided we're going to have jurisdiction in tons of cases we've never entertained before and not only that  we have also under this pendant jurisdiction issue i don't think you've got a certified question and you don't have a final order  or necessary or dependent about your case that we can't decide even if we decide the discovery motion why is our analysis of that in any way dependent it's the same order not that they would be the same but dependent which is the one exception that we've i decided it wouldn't otherwise be an appealable it's it's intertwined one because they do raise the exact same arguments base are intertwined because they are the same i can every case that we have these two are in our view in texas louisiana mississippi where the judge makes the same ruling address it it's not before us in the case that's before us and if we do address it it's probably going to be controlling because it's for the same reasons i concede that's true so let's give you a minute or two to more because the district court had ample discretion to determine that too wide of an analytical gap existed between the underlying data and  overarching analytical gap in the kids is dr carlson's failure to reliably demonstrate in light of the facts that occurred on june thirtieth at cook children's when d n a if was septic than  transfer of the proceeding morning when he was not septic would have made a fundamental difference in his outcome if you have a position on when the merciless contract we don't think anybody knows you're on in fact dark dr carlson even the in tala claim has to cause harm in a speed directly resulting from the violation otherwise there's no lawsuit there may be a technical breach but not a lawsuit that's very or saying caus the so in terms of the overarching analytical gatt there are a number of examples we cite in the brain as the district court astutely pointed out the testimony of dr krause required the court to make multiple logical leaps to tie the facts to the conclusions just to cite one example of a logical leap dr carlson's conclusion that had d n a have been transferred to cook children's on june twenty ninth he would dr carlson lou those were the facts dr carlson testified in his deposition despite knowing that for the first nine hours at cook children's on june thirtieth be a half was on seth try to accent which d carlson conceded was not the antibiotic of choice to treat b a s infection nevertheless dr carlson testified in this deposition the administration is seth tri x son for the first nine hours was not even i want to clarify the disparate treatment issue and when we asked for patient charge we asked for and dr carlson has an affidavit in the record assessed for all the things that he needed and what he thought he needed to just compare to get this comparison and there are probably forty or fifty i d c codes that we sent to try to get matches of pain elevated white blood cell count which the elevated differential count makes a huge difference for because of those cases said and marshall patients with similar symptoms every case out there there's not a single case out there that i could find that says you got five similar patients you may never find similar patients that's why emtala is directed towards the symptoms that the patient has and if you look at the cases and it wrecked it towards the screening right all these people got the same screening they got a different outcome and that's what you're complaining of but his argument is it didn't matter what the outcome is it matters what the screening is and he your client got a very thorough look and as i said more thorough than what i've read about in the paper and and experience when i've taken a loved one and so on the home that's different than if you run five tests you have the hospital you have to observe them every fifteen minutes take vital signs every thirty minutes to input output x rays you get a higher level of evaluation assessment in a hospital or you get transferred to a higher level of care like to these patients did your this comparison that you seem to require the doctor to come to the same conclusion in other words if they don't reach if they have similar symptoms and they don't reach the same conclusion then it's a violation of this statute whereas o who's a smoker into this and that the same as a young kid who has no prior history of any problems and so on and that doesn't sound right to me just on the face of it that's a medical issue well that what was done here in the medical determination was this kid is different from this the elderly patient that we had before is that a fact issue if we say that he should have been that these three patients are similar and he was treated because the person presents differently because an elderly patient with certain symptoms is different from a young boy was certain symptoms and therefore the screening ultimately may be different after the initial screening they both got the same initial screening but there may be a different conclusion they're not going to hospitalized every young kid is guess what you get merson the hospital so hospitalizing everybody who presents with the exact same symptoms or cardless of their other medical history doesn't strike me as something i want to be requiring the there are problems there are multiple medical conditions that the treatment and screen really regimens are the same for adult versus a child and you can compare a chest pain protocol might be different for an eighty year old versus an eight year old whereas extremity pain elevated white blood cell count and differential is treated the same in adults and in children according to what doctor cautions affidavit says so there there may be some circumstances where you don't treat them the same because of who the patient is but that's one of the symptoms of what is looked at as opposed to the patients who could never find two patients that are exactly the same after thinking if i did i cut you off because i