FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT JAN 10 2001 THOMAS K. KAHN CLERK

* Honorable Lloyd D. George, U.S. District Judge for the District of Nevada, sitting by designation. [PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

__________________________ No. 99-13205

__________________________ D.C. Docket No. 99-00786-CV-KMM
BERNIE HARRY, as Personal Representative of the Estate of Lisa Normil, deceased, Plaintiff-Appellant,

versus WAYNE MARCHANT, M.D., ALI BAZZI, M.D., et al, Defendants-Appellees.

__________________________ Appeal from the United States District Court for the Southern District of Florida

__________________________ (January 10, 2001)
Before BARKETT and WILSON, Circuit Judges, and GEORGE * , District Judge.
BARKETT, Circuit Judge:2 Bernie Harry, as Personal Representative of the Estate of Lisa Normil, appeals the dismissal of his amended complaint against Wayne Marchant M.D., Ali Bazzi M.D., Christopher Hanner M.D., Kevin Coy M.D., Polly Linker R.N., and Miami Beach Healthcare Group, Ltd., d/b/a Av entura Hospital and Medical Center (“Aventura”), alleging violations of 42 U.S.C. § 1395dd (Emergency Medical Treatment and Active Labor Act or “EMTALA”) and 42 U.S.C. § 1981 that contributed to and/or caused the death of Lisa Normil.
BACKGROUND The complaint in this case alleges the following facts. Lisa Normil was brought to the Aventura Hospital emergency roomon November 26, 1997, at approximately 1:17 a.m., by Miami-Dade Fire Rescue and medical treatment was requested on her behalf. She was seen in the emergency room by Dr. Marchant, who diagnosed Normil as suffering from pneumonia and possible seps is or pulmonary embolism. Marchant contacted Dr. Coy, the on-call attending phys ician, to report Normil’s diagnosis and to request permission to admit her to th e intensive care unit (“ICU”). Coy did not immediately authorize Normil’s admission, but instead directed Marchant to obtain a ventilation perfusion scan (“VQ scan”). The VQ scan was not performed, allegedly because Aventura had run out of the isotope s necessary to perform the scan. Despite Aventura’s inability to perform the VQ scan, Marchant did not arrange to have Normil1 The remainder of the complaint consisted of state law claims for wrongful death against all of the defendants, a claim for negligence per se against Aventura, and a claim for vicarious liability against Aventura. Drs. Marchant and Coy were sued under state law only. 3 transferred to another facility. Marchant also contacted Dr. Bazzi, Normil’s primary care physician, but Bazzi did not see Normil until approximately five hours later, still in the emergency room. Subsequently, Norm il was admitted to the ICU. By that time, Normil had been in the emergency department for more than seven hours. Although antibiotics had been prescribed , Normil did not receive any while in the ICU. Sometime after her admission to th e ICU, Normil lapsed into respiratory and cardiac failure. Dr. Hanner, another emer gency department phys ician, allegedly responded to the “Code Blue” announcemen t in an untimely manner and failed to properly manage the resusc itation efforts. The attempted resuscitation was unsuccessful, and Normil died in the ICU on November 27, 1997. Harry filed suit against the defendants, alleging that they had caused and/or contributed to Normil’s death. Harry alle ged that Aventura had violated EMTALA, by failing to provide Normil with an appropriate screening to determine whether she suffered from an emergency medical conditi on and by failing to stabilize and treat her condition. He further alle ged, pursuant to 42 U.S.C. § 1981, that Aventura, Linker, and Bazzi violated Normil’s civil rights by infringing on her right to contract for medical services. 1 The defendants moved to dismiss, and the district court dismissed2 The district court declined to assume jurisdiction over the remaining state law claims. 4 with prejudice the claims brought under EMTALA and § 1981. 2 This appeal followed.
DISCUSSION On appeal, Harry asserts that the district court erroneously ruled that his amended complaint failed to state a causeof action for violation of EMTALA, 42 U.S.C. § 1395dd(a) and (b) and 42 U.S.C. § 1981. We review the dismissal of a complaint for failure to state a claim de novo , accepting all allegations in the complaint as true and construing facts in a li ght most favorable to the plaintiff. Brown v. Budget Rent-A-Car Systems, Inc. , 119 F.3d 922 (11th Cir. 1997). In doing so, we are mindful of the Supreme Court’s directiv e that a complaint should not be dismissed unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle hi m to relief.” Conley v. Gibson , 355 U.S. 41, 45-46 (1957).
1. Failure to state a cause of action for violation of EMTALA Congress enacted EMTALA to prevent hospitals from failing to examine and stabilize patients who seek treatment in thei r emergency department s. Hardy v. New York City Health & Hosp. Corp. ,164 F.3d 789, 795 (2d Cir.1999); see Bryan v. Rectors and Visitors of the Univ. of Virginia , 95 F.3d 349, 351 (4th Cir.1996).5 Although EMTALA was not intended to be a federal malpractice statute, it was intended to protect patients by prohibiti ng hospitals from engaging in “patient dumping,” the practice of refusing to examin e or to treat patients who came to the emergency room of the hospital butmight be unable to pay. See Holcomb v. Monahan , 30 F.3d 116, 117 n.2 (11th Cir. 1994); Summers v. Baptist Medical Ctr. Arkadelphia , 91 F.3d 1132, 1136 (8th Cir. 1996)(e n banc). EMTALA provides in relevant part: (a) Medical screening requirement In the case of a hospital that has a hospital emergency department, if any individual (whether or not eligible for benefits under this subchapter) comes to the emergency department and a request is made on the individual’s behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capabilityof the hospital’s emergency department, including ancillary services routinely available to the emergency department, to determin e whether or not an emergency medical condition (within the meaning of subsection (e)(1) of this section) exists. (b) Necessary stabilizing treatment for emergency medical conditions and labor (1) In general – If any individual (whether or not eligible for benefits under this subchapter) comes to a hospital and the hospital determines that the individual has an emerge ncy medical condition, the hospital must provide either (A) within the staff and facilities av ailable at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition, or (B) for transfer of the individual to another medical facility in6 accordance with subsection (c) of this section. (c) Restricting transfers until individual stabilized (1) Rule If an individual at a hospital has an emergency medical condition which has not been stabilized (within the meaning of subsection (e)(3)(B) of this section), the hospital may not transfer the individual unless– (A)(i) the individual (or a legallyresponsible person acting on the individual’s behalf) after being informed of the hospital's obligations under this section and of the risk of transfer, in writing requests transfer to another medical facility, (ii) a physician (within the meaning of section 1395x(r)(1) of this title) has signed a certification th at based upon the information available at the time of transfer , the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual and, in the case of labor, to the unborn child from effecting the transfer, or (iii) if a physician is not physically present in the emergency department at the time an individual is transferred, a qualified medical person (as defined by the Secretary in regulations) has signed a certification described in clause (ii) after a physician (as defined in section 1395x(r)(1) of th is title), in consultation with the person, has made the determin ation described in such clause, and subsequently countersigns the certification; and (B) the transfer is an appropriate transfer (within the meaning of paragraph (2)) to that facility. A certification described in clause ( ii) or (iii) of subparagraph (A) shall include a summary of the risks and benefits upon which the certification is based. (2) Appropriate transfer An appropriate transfer to a medical facility is a transfer– (A) in which the transferring hospital provides the medical treatment within its capacity which minimizes the risks to the individual's health and, in the cas e of a woman in labor, the health7 of the unborn child; (B) in which the receiving fac ility– (i) has available space and qualified personnel for the treatment of the individual, and (ii) has agreed to accept transfer of the individual and to provide appropriate medical treatment; (C) in which the transferring hospital sends to the receiving facility all medical records (or c opies thereof), related to the emergency condition for which the individual has presented, available at the time of the transfer, including records related to the individual’s emergency medi cal condition, observations of signs or symptoms, preliminary diagnosis, treatment provided, results of any tests and the informed written consent or certification (or copy thereof) pr ovided under paragraph (1)(A), and the name and address of any on-call physician (described in subsection (d)(1)(C) of this secti on) who has refu sed or failed to appear within a reasonable time to provide necessary stabilizing treatment; (D) in which the transfer is effected through qualified personnel and transportation equipment, as required including the use of necessary and medically appropriate life support measures during the transfer; and (E) which meets such other requirements as the Secretary may find necessary in the interest of the health and safety of individuals transferred.
42 U.S.C. § 1395dd. Harry alleges cause s of action under both § 1395 dd(a), the medical screening provision, and § 1395 dd(b), the stabilization provision of
EMTALA. A. “Appropriate medical screening” under EMTALA In the amended complaint, Harry assert s that Aventura should have performed a VQ scan on Normil to confirm or rule out a diagnosis of pulmonary embolism, as8 a VQ scan was “the standard medical screen ing procedure for patients with similarly perceived medical condition[s].” While EMTALA does not define “appropriate medical screening,” Harry is correct th at under EMTALA a patient is entitled to receive a medical screening calculated to identify critical medical conditions. That screening must be similar to that which would be provided for any other patient with similar complaints. Holcomb , 30 F.3d at 117 (“the congressional purpose behind the enactment of EMTALA supports the conclu sion that this language only requires a hospital to provide indigent patients with a medical scr eening similar to one which they would provide any other patient”); see Marshall v. East Carroll Parish Hosp. Serv. Dist. , 134 F.3d 319, 322 (5th Cir. 1998) (“appropriate medical screening examination” is judged by “whether it was pe rformed equitably in comparison to other patients with similar symptoms”); Correa v. Hosp. San Francisco , 69 F.3d 1184, 1192 (1st Cir. 1995) (“The essence of this requireme nt is that there be some screening, and that it be administered evenhandedly.”). However, there are limitations on EMTALA’s requirement of a medical screening examination. As noted earlier, EMTALA was not intended to substitute for a state malpractice claim. Its purpose is to protect patie nts by eliminating the practice of hospitals simply discharging or tran sferring patients with a medical emergency without first providing a proper screening examination and stabilizing their condition.9 The requirement of Section 1395dd(a) of “an appropriate medical screening examination” is linked to its purpose, that is, to determine whether a medical emergency exists. 42 U.S.C. § 1395dd(a) (“[T]he hospital must provide for an appropriate medical screening examinati on . . . to determine whether or not an emergency medical condition . . . exists.” ). It is not intended to ensure each emergency room patient a correct dia gnosis. Power v. Arlington Hosp. Assoc. , 42 F.3d 851, 856 (4th Cir. 1994). As the Tenth Circuit noted in Collins v. DePaul Hosp. , 963 F.2d 303 (10th Cir. 1992), “[t]he stated reason in 42 U.S.C. § 1395dd(a) for requiring a participating hospital to provi de an ‘appropriate medical screening examination’ of one suffering from injuries who presents himself at a hospital is to determine whether an ‘emergency medical condition exists.’ Nothing more, nothing less.” Id. at 306-07 (holding that the fact that hospital determined plaintiff had an emergency medical condition and placed hi m in ICU defeats a claim based on 42 U.S.C. § 1395dd(a)). See Vickers v. Nash General Hosp., Inc. , 78 F.3d 139 (4th Cir. 1996) (holding that EMTALA’s screening provision requires a medical examination “to determine whether or not an emergenc y condition exists” and is not concerned with treatment that follows from the screening). In this case, the amended complaint asserts that Normil was diagnosed with pneumonia and possible sepsis or pulmonaryembolism. The facts alleged concede10 that Aventura conducted an initial screeni ng examination and determined that Normil had an emergency condition, notwithstanding the lack of a VQ scan. Indeed, the hospital ultimately admitted Normil to th e ICU. While Normil may have a valid malpractice claim with respect to the dia gnosis, the allegations do not support a claim that the hospital did not conduct an initial sc reening examination to determine whether an emergency medical condition existed pursuant to 42 U.S.C. § 1395dd(a). We do not find error in the district court’s dismissal of this claim. B. Necessary stabilizing treatment under EMTALA Harry also asserts that notwithstandi ng the knowledge of Normil’s emergency condition, the various Appellees violat ed EMTALA by failing to stabilize her condition. Section 1395dd(b) requires that once a hospital determines that a patient has an emergency medical condition, th e hospital must provide (a) further examination and treatment to stabilize the me dical condition or (b) transfer the patient in accordance with the requirements of th e statute to a hospital facility that can provide necessary treatment. See Cooper v. Gulf Breeze Hosp., Inc. , 839 F.Supp. 1538, 1544 (N.D.Fla. 1993) (holding that plainti ff’s assertion that defendant violated the EMTALA by “failing to stabilize plainti ff’s medical condition” before releasing him sufficient to state a clai m under this statute); see also Brooks v. Maryland General Hosp., Inc. , 966 F.2d 708, 710 (4th Cir. 1993) (holding that EMTALA requires an11 emergency room “to stabilize the [emerg ency medical] condition or, if medically warranted, to transfer the person to another f acility if the benefits of transfer outweigh its risks.”). Appellees assert that Harry cannot prev ail in this claim because actions under § 1395dd(b) for failure to stabilize a patientare limited to only those situations in which the hospital releases or transfers the patient without first stabilizing their condition. Because Normil was eventually admitted as a patient and not transferred, Appellees argue that this provision of EMTALAis not applicable. In their brief, they cite to Correa v. Hospital San Francisco , 69 F.3d at 1190, and Cooper v. Gulf Breeze Hospital, Inc. , 839 F. Supp. at 1541, for this proposition. However, Appellees’ reliance on these two cases is mi sguided. In fact, in Correa , the First Circuit addressed the appropriate screening provision of EMTA LA, not the stabilization provision. Id. at 1192-93. Moreover, the First Circuit found that § 1395dd(b) “requires that, if an emergency medical condition ex ists, the participating hospital must render the services that are necessary to stab ilize the patient’s condition, . . . unless transferring the patient to another facility is medically indicated and can be accomplished with relative safety.” Id. at 1190. Cooper is similarly inapposite, as it held that certain Florida procedural requirements for medical malpr actice cases were not applicable in the context of EMTALA, and that the failure to allege that a hospital discharged a patient12 for economic reasons did not bar an EMTALA claim. Id. at 1540. It did not address the stabilization provision, except to say that “a hospital must treat, within its capacity, any individual so as to ‘stabilize’ their condition or arrange for a transfer of the individual to another medical facility. . . . Except under certain circumstances, a hospital may not transfer an individual unl ess their condition has stabilized.” Id. at 1541 (citation omitted) (emphasi s added). At oral argum ent, Appellees additionally suggested that, notwithstanding the lack of any limiting language in § 1395dd(b), another part of the statute, § 1395dd(e)(3)(A), s upports their argument. Section 1395dd(e)(3)(A) defines the term “to stabili ze,” and provides in relevant part: The term “to stabilize” means, withrespect to an emergency medical condition described in paragraph (1)(A), to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility. . . . Id. We are persuaded that both the language of EMTALA and Congress’ intent and purpose in adopting the statute defeat Appe llees’ argument as it relates to the period of time prior to Normil’s admission as a patient. Although the scope of EMTALA is narrow, nothing in the language of Section 1395dd(b) dictates limiting this subsection in the manner the Appellees suggest. On th e contrary, when a hospital determines that a medical emergency exists EMTALA speci fically dictates that the hospital must3 We note the distinction drawn by the court in Brodersen v. Sioux Valley Memorial Hosp. , 902 F. Supp. 931, 938 n. 6 (N.D. Iowa 1995), which explained that “EMTALA contains parallel, 13 provide either: (A) within the staff and facilities av ailable at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition, or (B) for transfer of the individual to another medical facility in accordance with subsection (c) of this section. 42 U.S.C. § 1395dd(b)(1)(A). The language of the statute does not condition the stabilizing treatment requirement upon transfer. SeeBattle ex rel. Battle v. Memorial Hosp. at Gulfport , 228 F.3d 544, 558 (5th Cir. 2000) (“EMTALA requires stabilization of a known emergency medical condition.”); Vickers , 78 F.3d at 145 (“EMTALA requires that when a hospital ‘determines that [an] individual has an emergency medical condition,’ the hospital mu st provide for such further examination and treatment ‘as may be required to st abilize the condition’”) (quoting 42 U.S.C. § 1395dd(b)(1)). Nor do we find the provision in § 1395dd( e)(3)(A), which relates to how a patient should be stabilized prior to transf er, contradicts or supercedes the plain directive in § 1395dd(b). Indeed, such a r eading would be inconsistent with the language of 42 U.S.C. § 1395dd(b), which doe s not suggest in any way that the decision to transfer is a prerequis ite to the stabilization requirement. 3 Moreover, thebut separate, definitions of the terms ‘to stabilize’ and ‘stabilized.’ The term ‘to stabilize’ indicates what the hospital must do to a patient in an emergency condition who is not transferred in accordance with subsection (c) [the statute’s tr ansfer provision]. ‘Stabilized’ refers to the condition the patient must be in to transfer him other than in accordance with the restrictions of subsection (c).” In other words, if a decision has not been made to transfer a patient in accordance with the requirements set out in § 1395dd(c), then the hospital must provide the necessary treatment to stabilize the patient.

4 Likewise it would be illogical to assume that a patient with an emergency medical condition would not be protected under EMTALA if the hosp ital intended to transfer the individual but had not yet done so. 14 Appellees’ reading would yield results that would contravene both common sense and the congressional purpose behind the passa ge of EMTALA. Under Appellees’ construction of EMTALA, treatment to st abilize an emergency condition need not be rendered until a decision to transfer or release the patient has been made. But that decision may not be made immediately, or indeed for many hours. Under Appellees’ reading of the statute in these circumstan ces, it would be permissible for a hospital to allow a patient’s condition to st eadily deteriorate, even to the point of death, until the decision to transfer were made, when any stabilizing treatment could come too late. Moreover, such a reading would permit hospitals to entirely defeat this provision by simply admitting a patient whom it has fa iled to stabilize. Th is scenario clearly conflicts with a common sense reading of EMTALA as well as the congressional intent to protect patients in this very circumstance. 4 See Hardy v. New York City Health & Hosp. Corp. ,164 F.3d 789, 795 (2d Cir.1999) (“The core purpose of EMTALA . . . is to prevent hospitals fro m failing to examine and stabilize uninsured15 patients who seek emergency treatment.”); Bryan v. Rectors and Visitors of the Univ. of Virginia , 95 F.3d 349, 351 (4th Cir.1996) (“[EMT ALA’s] core purpose is to get patients into the system who might otherwise go untreated and be left without a remedy.”). See also Hussain v. Kaiser Foundation Health Plan of the Mid-Atlantic States, Inc. , 914 F.Supp. 1331, 1334 (E.D.Va. 1996) (standing for the proposition that EMTALA’s stabilization requirement applies until a patient is admitted for in-patient treatment). Under any reasonable reading of EMTA LA, a hospital’s duty to stabilize a patient “arises once the hospita l determines that an emergency condition exists.” Scott v. Hutchinson , 959 F.Supp. 1351, 1357- 58 (D.Kan. 1997); see Summers , 91 F.3d at 1140 (8th Circuit); Vickers , 78 F.3d at 145 (4th Circuit); Urban v. King , 43 F.3d 523, 526 (10th Cir. 1994). In other words, the ob ligation to provide “within the staff and facilities available at the hospital, for su ch further medical examination and such treatment as may be required to stab ilize” the patient’s condition under Section 1395dd(b) is imposed upon a hospital the moment the hospital determines that an emergency medical condition exists and continues until the patient is stabilized for transfer, release, or admission. Given that EMTALA requires a hospital to provide such further medical examination and treatment as may be required to stabilize a patient once it has16 determined an emergency medical condition ex ists, and mindful that in reviewing the dismissal of Harry’s claim we must accept the allegations of a complaint as true, we conclude that the district court erred in dismissing Harry’s claim under 42 U.S.C. § 1395dd(b) as it relates to the failure to st abilize Normil’s condition prior to admission as an in-patient in the hospital. 2. Failure to state a cause of action for a violation of 42 U.S.C. § 1981 Harry next asserts that the district c ourt erroneously ruled that the Amended Complaint failed to state a cause of action for violation of § 1981. The Supreme Court has stated that “the Federal Rules of Civ il Procedure do not require a claimant to set out in detail the facts upon which he bases hi s claim. To the contrary, all the Rules require is ‘a short and plain statement of th e claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley , 355 U.S. at 47 (footnote omitted). This Court also noted that “[w]e have repeatedly emphasized the liberality of the principles of notice pleading that govern federal procedure.” Brown v. Nichols , 8 F.3d 770, 773 (11th Cir. 1993) . To establish a claim under § 1981, a plaintiff must allege facts insupport of the following elements: (1) the plaintiff is a member of a racial minority; (2 ) an intent to discri minate on the basis of race by the defendant; and (3) the discrimi nation concerns one or more of the activities enumerated in the statute. See Green v. Stat e Bar of Texas , 27 F.3d 1083,17 1086 (5th Cir. 1994). Appellees argue that even under the liberal notice pleading standard, a complaint must still state a cause of action sufficient to show that the plaintiff is entitled to relief. Fullman v. Graddick , 739 F.2d 553 (11th Cir. 1984) (§ 1983 claim). While this is true, we find that the plai ntiff’s amended complaint meets the minimal requirements to survive a motion to dism iss under Rule 12(b)(6). Indeed, the amended complaint alleges that (1) Normil was a member of a racial minority, (2) Appellees intended to discri minate based on Normil’s race, and (3) the discrimination concerned an alleged contractua l obligation. Therefore, we reverse the district court’s ruling dismissing this claim. For all of the foregoing reasons, we A FFIRM the district court’s ruling with respect to Harry’s claim under 42 U.S.C. § 1395dd(a), but REVERSE the district court’s ruling with respect to Harry’ s claims under 42 U.S.C. § 1395dd(b) and 42 U.S.C. § 1981, and REMAND for further proceedings consistent with this opinion.
AFFIRMED IN PART AND REVERSED IN PART.