1 United States Court of Appeals,

Fifth Circuit.

No. 97-30592

Summary Calendar.

Shirley MARSHALL, Individually and on behalf of Nydia MARSHALL,

Plaintiff-Appellant,

v.

EAST CARROLL PARISH HOSPITAL SERVICE DISTRICT, doing business as

East Carroll Parish Hospital, Defendant-Appellee.

Feb. 9, 1998.

Appeal from the United States Dis trict Court for the Western

District of Louisiana.

Before WIENER, BARKSDALE and EMILIO M. GARZA, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Simply put, this appeal concerns the effect to be given an

affidavit filed in opposition to a motion for summary judgment.

Shirley Marshall, individually and on behalf of her minor daughter,

Nydia Marshall, contests the summary judgment granted East Carroll

Parish Hospital Service District (the Hospital), dismissing her

action, brought under the Emergency Medical Treatment and Active

Labor Act (EMTALA), 42 U.S.C. § 1395dd. We AFFIRM.

I.

Fifteen-year-old Nydia Marsh all was brought by ambulance to

the Hospital's emergency room on 18 Oc tober 1994, because she

"wouldn't move" while at school after the bell rang. Upon her

arrival, Hospital personnel took her history and vital signs. She

was unable to verbally communicate while at the emergency room, but

cooperated when removing her clothing and watched movement of2

persons coming in and out of the emergency room. She was examined

by Dr. Marc Horowitz, who also had several medical tests performed

on her.

Dr. Horowitz diagnosed Nydia Marshall as having a respiratory

infection and discharged her. He informed Shirley Marshall that

her daughter's failure to communicate was of unknown etiology, and

advised her to continue administerin g the medications which had

been presc ribed by the family doctor on the previous day and to

return to the emergency room if the condition deteriorated. The

complaint alleged that, later that same day, Nydia Marshall's

symptoms continued to worsen, and she was taken to the emergency

room at a different hospital, where she was diagnosed as suffering

from a cerebrovascular accident consistent with a left middle

cerebral artery infarction.

This action claimed that the Hospital violated EMTALA by

failing to provide Nydia Marshall with an appropriate medical

screening examination and failing to stabilize her condition prior

to discharge. The Hospital moved for summary judgment and

submitted supporting affidavits from Dr. Horowitz and a registered

nurse who had participated in Nydia Marshall's treatment in the

Hospital's emergency room.

The district court allowed Marshall three months in which to

conduct discovery necessary to respond t o the motion. In

opposition to that motion, Marshall submitted a state ment of

contested facts and the sworn affidavit of Lena Middlebrooks, a

licensed practical nurse, who had been on duty at the Hospital3

emergency room when Nydia Marshall was treated.

The district court granted summary judgment for the Hospital

on the ground that no material fact issues were in dispute.

II.

Marshall contends that Middlebrooks' affidavit created a

genuine issue of material fact. Of course, we review a grant of

summary judgment de novo. E.g., Green v. Touro Infirmary, 992 F.2d

537, 538 (5th Cir.1993).

Summary judgment "shall be re ndered forthwith if the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party

is ent itled to a judgment as a matter of law." F E D

. R. C IV

. P.

56(c); e.g., Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th

Cir.1994) (en banc). Along this line, the evidence, and the

inferences to be drawn from it, a re viewed in the light most

favorable to the non-movant. E.g., LeJeune v. Shell Oil Co., 950

F.2d 267, 268 (5th Cir.1992). And, if the movant meets the initial

burden of showing that there is no material fact issue, the burden

shifts to the non-movant to produce evidence or set forth specific

facts showing the existence of a genuine issue for trial. F E D

. R.

C IV

. P. 56(e); e .g., Celotex Corp. v. Catrett, 477 U.S. 317, 324,

106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

The Act provides in relevant part:

In the case of a hospital that has a hospital emergency

department, if any individual

... comes to the emergency

department and a request is made on th e individual's behalf

for examination or treatmen t for a medical condition, the4

hospital must provide for an appropriate medical screening

examination within the capability of the hospital's emergency department, including ancillary services routinely available

to the emergency department, to determine whethe r or not an

emergency medical condition ... exists.

42 U.S.C. § 1395dd(a) (emphasis added). The Act defines an

"emergency medical condition", in pertinent part, as

(A) a medic a l condition manifesting itself by acute

symptoms of sufficient severity (including severe pain) such

that the absence of immediate medical attention could

reasonably be expected to result in—

(i) placing the health of the individual (or, with

respect to a pregnant woman, the health of the woman or

her unborn child) in serious jeopardy,

(ii) serious impairment to bodily functions, or

(ii i) serious dysfunction of any bodily organ or

part....

42 U.S.C. § 1395dd(e)(1). And, if the hospital determines that the

individual has an "emergency medical condition", then

the hospital must provide either—

(A) within the staff and facilities available 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....

42 U.S.C. § 1395dd(b)(1).

Marshall contends that Middlebrooks' affidavit demonstrates

that Hospital personnel knew that Nydia Marshall had an emergency

m edical condition and were very concerned about the cursory

examination provided by Dr. Horowit z; that Dr. Horowitz should

have performed a fundosco pic examination, cranial nerve testing,

motor strength testing, and deep tendon reflex testing; and that5

Nydia Marshall should have been a dmitted to the Hospital for

observation of her unexplained altered mental status. In essence,

Marshall is contending that Dr. Horowitz committed malpractice in

failing to accurately diagnose an emergency medical condition.

We agree with the other courts which have interpreted EMTALA

that the statute was not intended to be used as a federal

malpractice statu te, but instead was enacted to prevent "patient

dumping", which is the practice of refusing to treat patients who

are unable to pay. S ee Summers v. Baptist Med. Center Arkadelphia,

91 F.3d 1132, 1136-37 (8th Cir.1996) (en banc); V ickers v. N ash

General Hosp., Inc., 78 F.3d 139, 142 (4th Cir.1996); C orrea v.

Hospi tal San Francisco, 69 F.3d 1184, 1192 (1st Cir.1995), cert.

denied,

--- U.S. ----, 116 S.Ct. 1423, 134 L.Ed.2d 547 (1996);

Eberhardt v. City of Los Angeles, 62 F.3d 1 253, 1255, 1258 (9th

Cir.1995); U

rban By and Through Urban v. King, 4 3 F.3d 523, 525

(10th Cir.1994); H olcomb v. Monahan, 30 F.3d 116, 117 & n. 2 (11th

Cir.1994); G atewood v. Washington Healthcare Corp., 933 F.2d 1037,

1038-39 (D.C.Cir.1991); C leland v. Bro nson Health Care Group,

Inc., 917 F.2d 266, 268, 272 (6th Cir.1990).

Accordingly, an EMTALA "appropriate medical screening

examination" is not judged by its pro ficiency in accurately

diagnosing the patient's illness, but rather by whether it was

performed equitab ly in comparison to other patients with similar

symptoms. S ee Summers, 91 F.3d at 1138; V ickers, 78 F.3d at 143;

Correa, 69 F.3d at 1192-93; Repp v. Anadarko Mun. Hosp., 43 F.3d

519, 522 (10th Cir.1994); H olcomb, 30 F.3d at 117. If the6

Hospital provided an appropriate medical screening examination, it

is not liable under EMTALA even if the physician who performed the

examination made a misdiagnosis that could subject him and his

employer to liability in a medical malpractice action brought under

state law. S ee Eberhardt, 62 F.3d at 1258 ("The hospital's failure

to detect the decedent's alleged suicidal tendency may be

actionable under state medical malpractice law, but not under the

EMTALA."); B aber v. Hospital Corp. of America, 977 F.2d 872, 879-

80 (4th Cir.1992) ("Questions regarding whether a physician or

other hospital person nel failed properly to diagnose or treat a

patient's condition are best resolved under existing and developing

state negligence and medical malpractice theories of recovery.");

Gatewood, 933 F.2d at 1039 ("In the absence of any allegation that

the [hospital] departed from its standard emergency room procedures

in treating [patient], questions related to [patient's] diagnosis

remain the exclusive province of local negligence and malpractice

law."). Therefore, a treating physician's failure to appreciate

the extent of the patient's inju ry or illness, as well as a

subsequent failure to order an additional diagnostic procedure, may

constitute negligence or malpractice, but cannot support an EMTALA

claim for inappropriate screening. S ee Summers, 91 F.3d at 1138-39

(" "faulty' screening

... does not come within EMTALA"); V ickers,

78 F.3d at 143-44 (citation omitted) (EMTALA "does not impose any

duty on a hospital requiring that the screening result in a correct

diagnosis").

In order to avoid summary judgment, Marshall was required to7

present evidence showing a material fact issue as to whether the

Hospital provided an EMTALA appropriate medical screening

examination. But, an "appropriate medical screening examination"

is not defined by EMTALA. Most of the courts that have interpreted

the phrase have defined it as a screening examination that the

hospital would have offered to any other patient in a similar

condition with similar symptoms. S ee Summers, 91 F.3d at 1138 ("An

inappropri ate screening examination is one that has a disparate

impact on the plaintiff") ; Vickers, 78 F.3d at 144 (emphasis in

original) ("EMTALA is implicated only when in dividuals who are

perceived to have the same medical condition receive disparate

treatment"); C orrea, 69 F.3d at 1192 ("The essence of this

requirement is that there be some screening procedure, and that it

be administered even-handedly."); E berhardt, 62 F.3d at 1258

(hospital did not fail to provide "appropriate me dical screening

examination" where there was no "evidence to show that the

screening provided

... was not comparable to that provided to other

patients who manifested similar symptoms"); Repp, 43 F.3d at 522

("a hospital violates section 1395dd(a) when it does not follow its

own standard [screening] procedures"); Williams v. Birkeness, 34

F.3d 695, 697 (8th Cir.1994) (plaintiffs must prove that hospital

treated patient "differently from other patie nts"); H olcomb, 30

F.3d at 117 (EMTALA "only requires a hospital to provide indigent

patients with a medical screening similar to one which they would

provide any other patient"); B aber, 977 F.2d at 878 ("EMTALA only

requires hospitals to apply their standard screening procedure for* The Sixth Circu i t also requires proof of an improper

motivation on the part of the hospital. S ee Roberts v. Galen of

Virginia, Inc., 111 F.3d 405, 409 (6th Cir.1997) ("To distinguish

an EMTALA claim from a state law claim for negligence, a plaintiff

must establish something more than a hospit al's breach of the

applicable standard of care"; "plaintiff [has] a burden to bring

forth some showing of improper motivation"); C leland, 917 F.2d at

272 (" "Appropriate' " refers to "the motives with which the

hospital acts"). And, some courts have added the requirement that

the examination be one that is reasonably calculated to identify an

emergency medical condition. S ee Correa, 69 F.3d at 1192 ("A

hospital fulfills its statutory duty to screen patients in its

emergency room if it provides for a screening examination

reasonably calculated to identify critical medical conditions that

may be afflicting symptomatic patients" ); E berhardt, 62 F.3d at

1257, 1258 (emphasis in original) ("a medical screening examination

is "appropriate' if it is designed to identify acute and severe

symptoms that alert the physician of the need for immediate medical

attention to prevent serious bodily injury").

8 identification of an emergency medical condition uniformly to all

patients"); Gatewood, 933 F.2d at 1041 ("the Act is intended not

to ensure each emergency room patient a correct diagnosis, but

rather to ensure that each is accorded the same level of treatment

regularly provided to patients in similar medical circumstances");

Cleland, 917 F.2d at 268-69 ("we interpret the vague phrase

"appropriate medical screening' t o mean a screening that the

hospital would have offered to any paying patient"). * It is the

plaintiff's burden to show that t he Hospital treated her

differently from other patients; a hospital is not required to

show that it had a uniform screening procedure. W illiams v.

Birkeness, 34 F.3d at 697.

The affidavits of Dr. Horowitz and Nurse Green, submitted by

the Hospital as part of its evidence in support of summary

judgment, both state that Nydia Marshall was given an appropriate

medical screening examination that would have been performed on any9

other patient and that she was not diagnosed as having an emergency

medical condition. Marshall contends that both of these assertions

were re futed by Middlebrooks' affidavit. In her affidavit,

Middlebrooks stated that she witnessed a disagreement between Nurse

Arrington and Dr. Horowitz over whether Marshall should be admitted

or transferred to another hospital, rather than discharged, and

that, during her 14-year employment at the Hospital, she had seen

several other patients with symptoms similar to Nydia Marshall's,

who had all been admitted for observation and further testing and

treatment.

The Hospital moved to strike portions of Middlebrooks'

affid avit on the grounds that it contained inadmissible hearsay,

conjecture, and speculation and was not m ade on the basis of her

personal knowledge. The district court granted that motion as to

any information, "if any there be", in the affidavit which did not

comply with F ED

. R. C I V

. P. 56(e) (requiring affidavits to be made

on personal knowledge, to set forth facts which would be admissible

in evidence, and to show affirmatively that affiant is competent to

t estify to the matters stated therein). In any event, the court

considered the entire affidavit when ruling on summary judgment.

Considering that Middlebrooks is a licensed practical nurse,

not a doctor, we question whether she is competent to compare the

symptoms and treatment of Nydia Marshall to other patients. S ee

Power v. Arlington Hosp. Ass'n, 42 F.3d 851, 858 (4th Cir.1994)

(emphasis added) (where hospital offers evidence that "patient was

accorded the same level of treatment that all other patients10

receive, or t hat a test or procedure was not given because the

physician did not believe that the test was reasonable or necessary

under the particular circumstances of that patient", plaintiff may

"challenge the medical judgment of the physicians involved through

her own exper t medical testimony "); B aber, 977 F.2d at 882

(patient's brother, who was not a doctor, was not qualified to

evaluate whether emergency room doctor's actions consti tuted a

medical screening examination); i d. at 884 (patient' s brother's

"testimony is not competent to prove his sister actually had an

emergency medical condition since he is not qualified to diagnose

a serious internal brain injury"). Nevertheless, we, too, will

consider the entire affidavit.

We agree with the district court that the conclusory,

unsupported statements in Middlebrooks' affidavit are insufficient

to create a material fact issue as to whether Nyd ia Marshall was

denied appropriate medical screening procedures, or the screening

procedures provided her were different from those provide d other

patients with similar symptoms. Middlebrooks' affidavit contains

no description or identification of the other patients who

allegedly came to the Hospital's emergency room with symptoms

similar to those of Nydia Marshall, and provides no details of the

kind of treatment those patients were given. It goes without

saying that such conclusory, unsupported assertions are

insufficient to defeat a motion for summary judgment. See, e.g.,

Clark v. America's Favorite Chicken Co., 110 F.3d 295, 297 (5th

Cir.1997) ("Unsupported allegations or affidavit or deposition11

testimony setting forth ultimate or conclusory facts and

conclusions of law are insufficient to defeat a motion for summary

judgment."); D uffy v. Leading Edge Products, Inc., 44 F.3d 308,

312 (5th Cir.1995) ("conclusory allegations unsupported by concrete

and par ticular facts will not prevent an award of summary

judgment"); K rim v. BancTexas Group, Inc., 989 F.2d 1435, 1449

(5th Cir.1993) (internal quotation marks and citation o mitted)

(summary judgment is appropriate if "nonmoving party rests merely

upon conclusory allegations, improbable inferences, and unsupported

speculation").

As a result, and in the light of the summary judgment record,

because there is no material fact issue as to whether Dr. Horowitz

conducted an appropriate medical screening examination or as to his

determination that Nydia Marshall did not have an emergency medical

condition, the Hospital was entitled to judgment, as a matter of

law, that it did not have a duty under EMTALA to provide further

medical treatment, to stabilize her condition prior to discharge,

or to transfer her to another facilit y. See 42 U.S.C. §

1395dd(b)(1); s ee also Summers, 91 F.3d at 1140 (duty to stabilize

does not arise unless hospital has "actual knowledge of the

individual's unstabilized emergency medical condition"); V ickers,

78 F.3d at 145 (EMTALA "does not hold hospitals accountable for

failing to stabilize conditions of which they are not aware, or

even conditions of which they should have been aware"); E berhardt,

62 F.3d at 1259 ("the hospital's duty to stabilize the patient does

not arise until the hospital first detects an emergency medical12

condition"); Urban, 43 F.3d at 526 ("The statute's stabilization

and transfer requirements do not apply until the hospital

d etermines the individual has an emergency medical condition.");

Gatewood, 933 F.2d at 1041 (internal quotation marks and citation

omitted) (stabilization and transfer prov isions of EMTALA "are

triggered only after a hospital determines that an individual has

an emergency medi cal condition"); C leland, 917 F.2d at 271 n. 2

(hospital has no duty under EMTALA to stabilize condition that was

not ascertained in appropriate screening examination).

III.

For the foregoing reasons, the summary judgment is

AFFIRMED.