case number fifteen there's six one seven three mary scott for herself and his representative for the state of milton scott versus memorial health care system inc or argument not to exceed fifteen minutes or side  more in your honour's morning may please the court my name is curtis bo and i represent mary scott who is here although battling a coughing spat so she's out of resting and her son is also here sergeant michael scott i'd like to reserve five minutes for a bottle are here on appeal with some very trying issues that have different interpretations depending upon where we are or who's looking at them specifically we're here for a redetermination of the trial court error in dismissing an emergency medical treatment and active labor act claim alleging inappropriate screening inappropriate stabilisation inappropriate transfer and improper documentation were also here as a result of that claim to address the trial court's error in dismissing a tennessee consumer protection act claim arising out of the same circumstances of the intellect claim specifically that tennessee c all deceptive business practices and the application of that tennessee consumer protection act to hospitals additionally we're here to address the  it's refusal to allow a rule fifty six affidavit which was necessary to obtain evidence that related to the disparate treatment of an individual who is on medicaid and unable to pay as compared to the treatment delivered to private paying individuals which is a requirement under him to lay down thought we were here because the district court dismissed the claims as outside the statute of limitations and you're honored that was the framing that the court used and as i'll discuss the the framing of that is important and it's important for this matter biscuit originally filed her complaint as a litigant true and she did so at the time of her husband's death and grieving a terrible mistake not to have a lawyer certainly over a thing like that is it is but if if in fact what she alleged then there is no direct relation to what was filed later there is no relation back and the statute of limitations had in fact run and that's the interpretation and that's the problem your honor because it does in fact relate when you have no training and you cannot articulate what the grounds are for your lawsuit based on law school training or other and you say something such as they hid information spoliation of the evidence i think is the phrase that was used in the original per se complaint as well as they had individuals working on mr scott who didn't document themselves properly and didn't deliver services properly that relates specifically  directly to the business practices allegations set forth in the tissue consumer protection act both under  gordon in england from tennessee regarding leniency as well as that's really about it well and if you if you break that down into its individual parts of the plain meaning of that language which is what the per se litigant would use what he's saying is it was deceptive they lied to us that's what he said and that's what to see consumer protection act with respect well but the tennessee consumer protection act claim that you later had was you can say we are a number one hospital for strokes and then let somebody have a stroke and die that that's not related to to this specific claim that there were alterations of the medical records it's not it has a it's that consumer regulation has a whole different spin and focus i mean you can only stretch these things so far counsel you can that they just it can't swallow up everything out there  honor and let me back up in the context of the emergency medical treatment and active labor at what it calls for is it's not a medical malpractise act it's tort so when you come to us and say they violated these provisions what you're saying is that there are strict liability and the inquiry is not what medical services were provided but what was the business action that they took that prevented you from having appropriate screening and appropriate transfer and stabilization when you talk about as you evidence whatever so what evidence were was that a reference to well and it was a reference to alteration of medical report there's a there's a arrow in the which is a claim that's made him to look there was improper documentation that's what that claim relates to and under the tennessee consumer protection act it says you cannot take steps to promote one thing but then fail to deliver that and that's the that's the nexus it is a pro se litigant using terms that he thought were appropriate do you have any tennessee precedent that says that a hospital that advertises itself as very good at strokes or for that matter all over nashville there are these signs saying  assad spittal is number one in art care and then somebody comes in and is basically or at least arguably the victim of malpractise that instead of bringing them out practice claim they can bring a consumer rip regulation claim is there your honor there's there is no case that says it's a malpractise claim and instead of that you can bring it to see consumer protection a claim but there is a case that says hospitals and doctors are not immune from addressing their business practices and the issue that we have here is that a pro se litigant who was not afforded the correct standard of leniency espoused b tennessee or the sixth circuit with respect to an interpretation of their pleadings well why don't you give me the name of the case that you say controls here at one moment i've not run into anything like that before i mean there are people who die of heart conditions at st thomas hospital all the time and they don't bring consumer report actions as a result of it if anything they bring medical and that case stands for the proposition that hospitals doctors are not immune under the circumstances where there are business practices that are at dispute and that's really the issue that we have here is that there are business practices that memorial's engaging in that this who was not subjected to the leniency of the strictures of pleading failed to properly say the magic language and i'd apologize for disseminating it to that level but that's what's happening here intell is not a medical malpractise x so when my opponent argues that it should be subjected to the sea health care liability act in there are these hurdles that should be jumped at absolutely incorrect it's not a medical malpractise act and as a result none of the requisites for medical malpractise claims are political so where we are going with miss scott is analyzing the facts of the circumstance and the facts here with that mr scott arrived at their twelve thirteen stayed there until five o'clock received absolutely no medication for the stroke he did receive steroids treatment for a misdiagnosis of bill's palsy but notice that's scott's claim he also received oxygen but there's no indication that that's designed to treat the stroke they didn't even give him an aspirin as the experts is what they did do was they discovered the stroke two hours after his arrival and then let him sit and at that point three hours later said we need to send him to earlier and that violates the statute that practice those acts are deceptive because it said we're struck treatment center come to us get here fast and my time is up your honor but get your fast and what we'll do is we'll treat you well he got there fast he was actually in the building at the time he had the issues at twelve thirteen but nothing occurred except five hours later they transferred my place court art brock here on behalf of memorial health care system there really are two main categories raised by the appellant one is the consumer tennessee and the other is the dismissal on summary judgment under emtala like to address the gist of the order the briefs the tennessee consumer protection act claim the motion to dismiss at several bases one of which was that the claim was untimely that is ultimately the path that the district judge took in dismissing the case these acts took place on march twenty sixth two thousand and twelve the first complaint was filed march twenty one two thousand and thirteen dismissed voluntarily june five twenty thirteen then the second complaint filed in october of that same year the tennessee consumer protection act has a one year statute of limitations these are the what we have termed the state law claims that the motion to dismiss addressed and clearly the only issue based on the filing was whether the savings statute applied and allowed the plaintiff to file more than one year after the occurrence of the test they relate to the same events right well that is ultimately the question your honor what what is the extent of the relation  they were late in at least in part to the fact that mr scott was at the hospital the initial first complaint says for two claims that maybe turned causes of action in those ar foliation of evidence and alteration of medical records and under the foster test that we cite in our brief is the state interpretation of that it's a question of whether these are indeed the same causes of action and that's measured at least in part of not just what you term the cause of action what's the factual basis underlying it and are they indeed the same transaction or occurrence so those those inquiries are very important to that test but what i would point out are the cause of actions are clearly different spoliation of evidence alteration of medical records as opposed to these three claims under the tennessee consumer protection act one for advertisement one for misrepresentation and one for these false impressions all which relate in their court to a physician diagnosing a condition of bell's palsy instead of diagnosing a stroke which is not in any way related to the alteration of medical records or spoliation of the evidence they are instead related to what is said in the records and what medical decision making was undertaken do we have any idea what the essence of th relates to the c e o allowing these people to practice at the hospital that these two physicians supposedly either omitted putting things in the records or intentionally changed the record somehow stating that mr scott was paralyzed three hours later than he was or the nurse supposedly changing or altering records so those claims are all these people somehow intentionally modified the record to reflect the subsequent claims are all here's what's based on the record and it's no longer you change the record or you spoil the evidence it is now you missed diagnosed me available he came in he didn't get that remedy that's not an alteration of record or spoliation of record the next was a misrepresentation and that is you had a diagnosis of bell's palsy and said we you need a treatment for bell's all the when you really didn't need treatment for bell's palsy because they say you didn't have it that again it's not a supposedly ation of the record that comes directly from the record and the false impression want to sensually the consumer protection version of a bait and switch advertising a certain service someone coming in for that service and you switch him to something else their claim is he came in for stroke treatment but you switch him over to bill all not an alteration in the record and most of these consumer protection that claims expand the timeframe from the original complaint the original complaint addressed only issues entering into the medical record these expand them to advertisement and representations to the community at large well before these maybe you know and maybe you don't just out of curiosity the thing that hit me about this was it so i've gotten around in public pretty much that there's a three  hour what am i trying to say a three hour period in their window in there where there's something that can be done that in some instances will actually reverse a stroke and and there was a three hour window here unless i'm wrong about the times i think that's what maybe she was complaining about originally and the doctors later said well that the procedure that would you would use in that three hour window is actually contra and decayed what does that mean does that mean that we didn't think it was necessary or does that mean if we had done that it might have had  negative effects if it wasn't i mean what is the you know what that would do your honor of the american heart association and the american stroke association at let's set a lengthy guidelines to talk about the three hour window in permissible up to four and a half now in today's world that's good to know for the administration of this t p a yeah this clot busting drug those windows of time are used because in general at that point after that point they view the risk greater than the benefit because there is a major risk of bleeding in the brain and other places there are relative content indications and that's what dr robo talks about in his affidavit those relative contraindications are very mild symptoms that's one of the categories and that's what he's saying even if we had diagnosed a stroke immediately those symptoms are so minor they are relative contraindication most physicians will not give the drug then again because the risk outweighs the benefits and the risk is that you'll do even more damage than whatever this whatever is going on at the time will turn in the scheme a stroke of a blockage into a bleeding a hemorrhagic stroke because of the i risk of bleeding with this drug ok why was this patient transferred a lot in the record about that your honor in the appropriateness of the transfer once a patient  outside the window of t p the only reasonably available chance that they have is what's called this endovascular treatment it's where they go in and actually remove the clot mechanically those are experimental treatments that are only available in one place in our area regional stroke center earlier he was transferred there for the possibility that they would consider in the vascular treatment and the problem with all this causation evidence that we in here is that even with t p a in a vastly or treatments even less successful it is still unlikely that a major stroke patient will receive a good recovery that's why just in the hospital but the day before i mean what are you on this t p a thing when do you start counting point is the window open the window begins at the last time the patient was known to be normal well that was and that not clear by the family's report i was eleven or eleven thirty that morning and so when he came in and the physician initially diagnosed bill's palsy he  afternoon around four in the afternoon he had a major change he had many more significant symptoms an emergency room physician called a neurologist who said he's outside the window for t p s let's do an m r i let's ship him to this regional stroke center for treatment and that's where that process all right thank you for you know what one gets into these cases and gets curious about the whole medical background as well as the legal background thank you that's the short story of it your heart so what i would say is that these claims are not the s factual basis of the claims are not the same so that it's not the same traction same transaction or occurrence so we're really wouldn't relate back to the foster test and i believe there is a unpublished six circuit opinion that essentially adoption applies foster it is laney brentwood homes l l c versus town of collierville one four four bed a p p x five zero six six circuit two thousand five essentially says yes they need to be the original complaint in the new complaint muscle ledge substantially the same cause of action which foster says that while it's not necessary that the complaints be identical the allegations need to arise out of the same transaction or occurrence and ultimately the major test is notice with their notice and we we well that published case is not the only case it says that i hope no in the tennessee case interprets the saving cover rather quickly is that when you get down to these allegations that three state law claims that are pled there's a it's essentially an advertisement meaning you advertise a stroke remedy i didn't get a stroke remedy it's misrepresentation you told me was a bell's palsy when it wasn't a false impression you you have a type of stroke but i come in and you didn't treat me for stroke you treat me for bell's palsy none of these these all relate to medical diagnosis medical treatment medical decision making and under tennessee law the health care liability action is any civil action alleging that a health care provider caused an injury related to the provision of or failure to provide health care services to a person regardless of the theory of liability so are you saying then that the basis for a claim which should be medical malpractise as opposed to these two c p a claims is that what you're arguing that is it should have been pursued under that act your honor but i'm saying that any any civil allegation and this is the state law claims not the emtala claim but any state law claim that arises out of the treatment which he says here is bell's palsy or the failure to treat which is stroke comes under that act and is subject to the requirements of that act those act requirement requirements are sensually you must give notice at least sixty days before filing suit you must file or certificate of good faith showing you have evidence to pursue this claim and without those you're subject to dismissal including without a certificate of good faith dismissal with prejudice yet my understanding and based on other cases is that those are the requirements to file what we might call a medical malpractise claim but are used is there a case that says you cannot file a t c p a claim that relates to medical treatment in tennessee and you're limited to a medical malpractise claim no there is no case that says that you are what we're saying is that if you are combining medical treatment with a tennessee consumer protection that claim you still must follow the mandates of that statute and what case do you rely on for that principle  but don't have a case that is interpreted that your honor i don't we would be the first do that even though we're a federal court i don't believe there is a state case that addresses the tennessee consumer protection act like aspect of that your honor i would just say there is a case that says and we've cited it that when you're practicing your profession and these allegations of even relate to medical diagnosis medical treatment and stroke bill's policy what do you do with that that you are not engaging in trade or commerce it's why we say these aren't consumer protection act claims at all so far as i understand then what you're saying is that there are literally no cases that you know of that address this intersection between the two c p a and the tennessee medical malpractise in the sense of saying you can or can't file to c p a claims that come out of an arguable medical malpractise situation try trying the no case that says you must those you've only the statute for that there are the cases the proper case the constant case and the case i just cited to their owner brief to say that when you are not in the business entrepreneurial or commercial aspect of medicine when you're in the practice of the profession whether it be medicine or law you are outside of the consumer protection act and it simply does not i'm going to borrow a phrase from my opponent's brief which is sounds in the spoil ation of the evidence of the destruction of the documents sounds in deception which is what the tennessee consumer protection act is all about protecting and safeguarding against business deceptions hospitals receive federal money through medicaid for the provision of services that commerce that something that affects trade as a result hospitals are the three hour window now for that mr brooke and i discovered during this case the hospital memorial continues to argue listen we transferred him because we had these experimental procedures that were available to us that are linger despite the fact that they were minor symptoms well if that's the case and as they argue he was stable then there's no reason to let him sit for three hours after discovering that he had a stroke you have to send him because as mr brock told you earlier testimony what evidence was eleven thirty or so was the onset so now we're past that window why let him sit transfer him immediately because you've now discovered yes he's having a stroke and not bill's palsy so it's disingenuous to come and say to you well we didn't transfer him because it was minor one fifty one was the first indication that there were twelve fifty one was the first indication that there was a problem of stroke and they didn't address that issue other than to run some tests it's not until two thirty that the neurologist calls in does not examine mr scott concludes yes in fact he suffered from a stroke yet it's not until four o'clock that the determination is made to transfer him so you have these minor symptoms that the hospital claims is going on yet he's still sitting there taking no action not even giving him an aspirin to stabilize him so that he can be transferred that's what the bar no it's really a shame that she didn't understand at the time she decided far pro se or that she didn't see some help from a lawyer i mean i think what you're describing to me is a malpractise suit and your honor had i been the lawyer on this from the beginning before i was wondering if you were i would have said  practice out the gate yeah well i've got this case as a result of her saying to the federal court spoliation and destroy that's the danger of trying to represent yourself when somebody says and this case they had i guess by the terrorist you out and it is the danger however this circuit recognizes how we remedy that in another case that is actually a three fifty four fed appendix nine seventy five which is a two thousand and nine case wait a minute three fifty four this is another nine seventy five what's the name of this one this is gordon england the issue there was a young lady had some problems with their employment and her attorney dropped the ball he failed to do proper pleadings he failed to do all sorts of things including nonsmoking without her permission she came back to court and this circuit said wait a minute we're not going to let that go because it's so egregious to think that an attorney would dismiss something without your knowledge just like it would be comparatively here so egregious to think that you are in the hospital when you start having a stroke symptoms family on the hospital you want us to do equity basically yes or then i can't really hide it hurts say it in any other way it is a request for equity the issue becomes going to see allow equity in the circuit does allow equitable question that your honor has asked instead of making what mr brock contends would be the logical leap of its sounds in medical malpractise so you have to jump through these hurdles to do it is the consumer protection act what we're really saying is analyze the factual circumstances of what happened come here for stroke we can treat you he came for stroke they didn't treat him come here for stroke we will stabilize you he came for stroke they did not stabilize what's your i wonder if i could stop you just a minute because i do have one last question if you are allowed to proceed with this case what do you get out of it this is a statute i'm unfamiliar with