United States Court of Appeals

For the First Circuit

No. 01-2083

MARIA DEL CARMEN GUADALUPE, EFRAIN LABOY GUADALUPE, MARCELINA

FRANQUI FIGUEROA,

Plaintiffs, Appellants,

v.

DR. SAMUEL NEGRON AGOSTO; HOSPITAL INTERAMERICANO DE MEDICINA

AVANZADA, INC.-HUMACAO,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

 Torruella and Lipez, Circuit Judges,

Coffin, Senior Circuit Judge

Kevin G. Little, with whom Law Offices of David Efron was on

brief for appellants.

Fernando Agrait Betancourt for appellees.

August 7, 2002
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LIPEZ, Circuit Judge. This case concerns the grounds for

establishing the liability of a hospital under the Emergency

Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C.

§ 1395dd. EMTALA requires hospitals to provide emergency room

patients with an appropriate medical screening designed to identify

emergency conditions. Contending that Hospital Interamericano de

Medicina Avanzada, Inc.-Humacao (HIMA) provided such a minimal

screening for Narciso Figueroa that it could not be deemed

appropriate, the plaintiffs appeal the district court's grant of

summary judgment to HIMA. We affirm. 

I. Background

In reviewing an award of summary judgment, we "view the

entire record in the light most hospitable to the party opposing

summary judgment, indulging all reasonable inferences in that

party's favor." Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.

1990). We state the facts accordingly.

On October 2, 1998, at approximately 9:50 P.M., Maria del

Carmen Guadalupe took her husband, Narciso Figueroa, to the Yabucoa

Diagnostic and Treatment Center (YDTC). Figueroa was suffering

from urinary retention, edema in his legs, high blood pressure, and

pain. The YDTC referred Figueroa to HIMA, where he arrived at 1:05

A.M. on October 3, 1998, accompanied by del Carmen Guadalupe. By

this time, Figueroa was also suffering from increased respiratory

difficulty, a dry cough, fever, and drowsiness. 

When he arrived at HIMA, Figueroa was joined by his niece, a

nurse who worked at the hospital (but was off duty at the time).
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She spoke to the doctor on call, Dr. Samuel Negron Agosto. While

del Carmen Guadalupe filled out paperwork at the front desk of the

hospital, Dr. Negron Agosto examined Figueroa. Atlhough there

were other patients in the emergency room, Figueroa was examined

before them. At least two nurses also attended to Figueroa, taking

his vital signs, drawing blood, and arranging for an x-ray of his

chest. The nurses also checked the Foley catheter (designed to

drain urine) that had been attached to Figueroa before he arrived.

Figueroa was conscious the whole time, communicating to family

members and health care workers. 

After reviewing an x-ray, Dr. Negron Agosto diagnosed Figueroa

with bronchial pneumonia. In her deposition, del Carmen Guadalupe

claimed that Dr. Negron Agosto told Figueroa's niece (the nurse)

that Figueroa could be discharged because "nobody dies from

[bronchial pneumonia]." Before del Carmen Guadalupe left with

Figueroa, Dr. Negron Agosto gave her some medicine and told her to

give it to Figueroa once they got home and to return to the

hospital the next day to pick up the x-ray. Figueroa was

discharged at about 3:00 A.M., and del Carmen Guadalupe drove him

back home by 5:00 A.M. He was conscious and speaking during the

journey, and did not complain about his treatment at the hospital.

After del Carmen Guadalupe and Figueroa returned to their

home, they looked for the medicine, but could not find it. Rather

than returning for a replacement, they decided to rest.

Unfortunately, Figueroa's condition continued to deteriorate,

prompting del Carmen Guadalupe to take him to another hospital,
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Ryder Memorial Hospital. Figueroa was pronounced dead upon arrival

at Ryder at 1:45 P.M. Dr. Yocasta Brugal of the Forensic Sciences

Institute of Puerto Rico performed an autopsy on Figueroa and

established the cause of death as bilateral bronchial pneumonia. 

Plaintiffs, heirs of Figueroa, filed a complaint against HIMA

and Dr. Samuel Negron Agosto on September 22, 1999, charging them

with violations of EMTALA and medical malpractice under Puerto

Rican law. After discovery, HIMA filed a motion for summary

judgment and/or to dismiss, arguing that the plaintiffs failed to

state a claim under EMTALA. HIMA argued that summary judgment was

appropriate because undisputed facts demonstrated that the hospital

had given Figueroa an appropriate screening examination comparable

to the screening it would have given any patient with substantially

similar symptoms. It also moved the district court to dismiss

without prejudice the malpractice claims. 

To oppose the summary judgment motion, the plaintiffs

submitted hospital reports, records, and policies, a deposition

from del Carmen Guadalupe, and a letter and deposition from their

expert, Dr. David R. Nateman, Medical Director of the Emergency

Services Department of the Baptist Hospital of Miami. Dr.

Nateman's report concluded that both the Hospital and Dr. Negron

Agosto 

fell below the standards of medical care for failing to

diagnose a life-threatening medical condition which resulted

in the death of Narcisco [sic] Figueroa. In addition, by

providing an inadequate medical screening at [the hospital],

the patient was not afforded the right of determination of

medical stability and therefore was illegally transferred

which resulted in a violation of EMTALA. 
1 For the sake of convenience, in the remainder of this

opinion we will refer to HIMA as the only defendant in this case.

As a physician, Dr. Negron Agosto may be immune from EMTALA

liability. While we have "not decided the issue whether EMTALA

provides a cause of action against individual physicians, all

circuits that have done so have found that it does not." Lebron v.

Ashford Presbyterian Cmty. Hosp., 995 F. Supp. 241, 244 (D.P.R.

1998) (citing Eberhardt v. City of Los Angeles, 62 F.3d 1253 (9th

Cir. 1995); King v. Ahrens, 16 F.3d 265 (8th Cir. 1994); Delaney

v. Cade, 986 F.2d 387 (10th Cir. 1993); Baber v. Hosp. Corp. of

America, 977 F.2d 872 (4th Cir. 1992); Gatewood v. Washington

Healthcare Corp., 933 F.2d 1037 (D.C.Cir. 1991)). Since we decide

that EMTALA was not violated here, we need not decide the question

of physician liability in this case.

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On June 22, 2001, the district court granted HIMA's motion for

summary judgment with respect to the plaintiffs' EMTALA claim, and

dismissed without prejudice their supplemental malpractice claims.

The plaintiffs appeal from this decision.

II. EMTALA Standards

The parties agree that HIMA provided Figueroa with a

screening; they disagree over whether it was an "appropriate

medical screening" under the terms of EMTALA. 42 U.S.C. §

1395dd(a). HIMA argues that a plaintiff can prevail under EMTALA

only if she can demonstrate that the hospital offered no screening

at all, or deviated from its standard screening procedures

applicable to other patients with similar conditions.1 As HIMA

puts it in its brief, "[w]hat EMTALA prohibits is disparate

screening or no screening at all." Although appellants agree with

the disparate screening standard, they also contend that a hospital

can violate EMTALA if its screening is so cursory or inadequate

that it is tantamount to no medical screening. As we explain,

neither party has it exactly right. 
2 A covered hospital is defined as a "hospital that has

entered into a provider agreement under section 1395cc of this

title." 42 U.S.C. § 1395dd(e)(2). Both sides agree that HIMA is

covered by EMTALA. 

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By its terms, EMTALA is designed to assure that any person

visiting a covered hospital's emergency room is screened for an

emergency medical condition and is stabilized if such a condition

exists.2 With respect to screening, it requires the following: 

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 the

individual's behalf for examination or treatment for a

medical condition, the 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 whether or not an

emergency medical condition (within the meaning of

subsection (e)(1) of this section) exists.

42 U.S.C. § 1395dd(a). EMTALA does not define the term

"appropriate medical screening examination." However, it does

indicate that the purpose of the screening is to identify an

"emergency medical condition." An emergency medical condition is

defined as

a medical 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

(iii) serious dysfunction of any bodily organ or

part[.]

42 U.S.C. § 1395dd(e)(1)(A). To identify such conditions,

hospitals are expected to employ "ancillary services routinely

available to the emergency department." 42 U.S.C. § 1395dd(a).
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However, they are not liable for failing to conduct examinations

(or parts thereof) that are not "within the capability of the

hospital's emergency department." 42 U.S.C. § 1395dd(a).

With the statutory language as a guide, we have said

previously that "[t]he essence of [EMTALA's] screening requirement

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

administered even-handedly." Correa v. Hosp. San Francisco, 69

F.3d 1184, 1192 (1st Cir. 1995). Thus, there is both a substantive

and a procedural component to an appropriate medical screening

under EMTALA: "[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 and provides

that level of screening uniformly to all those who present

substantially similar complaints." Id.; see also Jackson v. East

Bay Hosp., 246 F.3d 1248, 1256 (9th Cir. 2001) ("We hold that a

hospital satisfies EMTALA's 'appropriate medical screening'

requirement if it provides a patient with an examination comparable

to the one offered to other patients presenting similar symptoms,

unless the examination is so cursory that it is not 'designed to

identify acute and severe symptoms that alert the physician of the

need for immediate medical attention to prevent serious bodily

injury.'" (quoting Eberhardt v. City of Los Angeles, 62 F.3d 1253,

1257 (9th Cir. 1995))). 
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III. Applying the Legal Standards

A. Reasonably Calculated to Identify Critical Medical Conditions

In pressing their claim that HIMA failed to provide Figueroa

with an appropriate medical screening under the terms of EMTALA,

plaintiffs argued that "[t]he medical examination and treatment

[offered to Figueroa] . . . was totally inadequate and

inappropriate for a man in his condition." In moving for summary

judgment in response to this claim, HIMA focused on concessions

elicited from the plaintiffs' expert witness, Dr. Nateman, during

his deposition. Although Dr. Nateman concluded that there had been

an "improper screening," he also conceded that he could not be

certain whether Figueroa suffered from a "life-threatening

condition" when he arrived at HIMA. Dr. Nateman also admitted that

Figueroa was treated rapidly at the hospital, noting that Figueroa

"was triaged, [had] some vital signs done, had a physical exam by

the doctor, and chest x-rays [and] laboratory tests were ordered."

Figueroa's wife, del Carmen Guadalupe, confirmed this

testimony in her deposition. She also testified that Figueroa was

given medication at the emergency room. She stated that, at the

close of their visit, she was given a prescription and told to come

back in the morning for the x-rays. Del Carmen Guadalupe also

stated at the deposition that her husband did not appear to be in

critical condition when he left the hospital with her: 

Q: [B]y five in the morning . . . your husband was doing well

in the car.

A: Yes.

Q: That is, conscious and talking and all that.

A: Yes.
3 Dr. Nateman's deposition suggests that Figueroa's chest xrays were examined twice--once at about 2:00 A.M. (by the doctor on

call), and then again at 11:05 A.M. (by a radiologist). Dr.

Nateman stated that the doctor on call clearly misdiagnosed

Figueroa, in part because "his chest x-rays were not normal."

However, Dr. Nateman also admitted that he did not have the x-rays

with him at the deposition, and therefore could not answer an

attorney's question as to whether "the reading by the emergency

room doctor [was] obviously wrong, or . . . [was] reasonably

misread [by a non-radiologist]." 

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Q. Did he express any complaints about the way he was attended

in there?

A: No.

Q: Some sort of malcontent?

A: No.

Q: You personally, did you feel you were attended?

A: Yes.

Given the concessions of Dr. Nateman and del Carmen Guadalupe, HIMA

argues that it was clear that HIMA's screening of Figueroa was

reasonably calculated to identify critical medical conditions

afflicting him. 

In response, the plaintiffs argue that, while this screening

examination may have been adequate for many emergency room

patients, it was "totally inadequate and inappropriate for a man in

[Figueroa's] condition." According to Dr. Nateman, Figueroa's comorbid conditions--his obesity, age (51), edematous legs,

catheterization, and high respiration rate--made him a "vascular

nightmare waiting to happen," a man with an obvious "potential for

death." Dr. Nateman concluded that an appropriate screening

examination would have included, at a minimum, an

electrocardiogram, a fuller assessment of Figueroa's respiratory

function, and an immediate reading of the chest x-ray by a

radiologist.3 At the very least, say the plaintiffs, these
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contentions created a "genuine issue of material fact" regarding

the appropriateness of the screening examination offered to

Figueroa.

 Although plaintiffs' arguments have some force, they ignore

the important distinction between an EMTALA claim and a malpractice

claim. EMTALA does not "create a cause of action for medical

malpractice," and "faulty screening, in a particular

case . . . does not contravene the statute. " Correa, 69 F.3d at

1192-93. Dr. Nateman's criticisms of HIMA's diagnosis of Figueroa

in the emergency room are indistinguishable from the standard of

care criticisms that one would hear from an expert in a malpractice

case triggered by a misdiagnosis. Under EMTALA the issue is not

what deficiencies in the standard of emergency room care

contributed to a misdiagnosis. See Gatewood, 933 F.2d at 1041

(observing that EMTALA is not intended "to ensure each emergency

room patient a correct diagnosis"). Rather, the issue is whether

the procedures followed in the emergency room, even if they

resulted in a misdiagnosis, were reasonably calculated to identify

the patient’s critical medical condition. Dr. Nateman's criticisms

do not address this precisely formulated EMTALA standard. 

Moreover, whereas malpractice liability usually attaches when

a health care provider fails to adhere to a "general professional

standard" of care, W. Page Keeton et al., Prosser and Keeton on the

Law of Torts § 32, at 188 (1984), EMTALA only requires "an

appropriate medical screening examination within the capability of
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the hospital's emergency department." 42 U.S.C. § 1395dd(a). As

the Fourth Circuit has observed:

This section establishes a standard which will of

necessity be individualized for each hospital, since

hospital emergency departments have varying capabilities.

Had Congress intended to require hospitals to provide a

screening examination which comported with generally

accepted medical standards, it could have clearly

specified a national standard. Nor do we believe

Congress intended to create a negligence standard based

on each hospital's capability. EMTALA is no substitute

for state law medical malpractice actions. 

Baber, 977 F.2d at 879-80. Although Dr. Nateman criticized HIMA

for failing to perform certain tests for Figueroa, plaintiffs

offered no evidence indicating that such tests were within HIMA's

capability. For example, Dr. Nateman stated during his deposition

that, at his hospital, he would test "oxygen saturation [for]

anybody who comes in with any kind of respiratory complaints."

However, he also admitted that he did not know "if [HIMA has] the

machine necessary for such a test." Dr. Nateman suggested that

HIMA should have had a radiologist examine Figueroa's x-rays as

soon as they were developed. However, he also said that he had "no

idea" whether the hospital's radiology department was in full

operation at that time. Plaintiffs offered no evidence that HIMA

had an electrocardiogram machine available, or had staff on hand

qualified to perform a "respiratory differential"--two other items

Dr. Nateman deemed essential to an "appropriate medical screening

examination." A claim of inappropriate medical screening based on

a failure to provide certain diagnostic tests must at least address

whether the hospital was capable of performing such tests. Because

plaintiffs failed to present such evidence or evidence that HIMA's
4 If evidence of such written screening policies were

indispensable to EMTALA liability, a hospital could avoid liability

simply by failing to generate them. A "hospital cannot simply hide

behind [a] lack of standard emergency room procedures." Power v.

Arlington Hosp. Assoc., 42 F.3d 851, 858 (4th Cir. 1994) (internal

quotation marks omitted). 

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screening was not "reasonably calculated to identify critical

medical conditions," Correa, 69 F.3d at 1192, summary judgment for

HIMA on the substantive component of EMTALA was appropriate. 

B. Disparate Treatment

The district court concluded that the plaintiffs’ failure to

"submit any . . . policies on the initial screening standards of

Defendant HIMA" was "a fatal flaw in their case." Without that

evidence, the district court concluded, the plaintiffs could not

demonstrate that HIMA gave Figueroa a more cursory screening than

it gave to other patients with substantially similar symptoms.

Although we affirm the decision to grant summary judgment on the

disparate treatment claim, we do not agree that the claim

necessarily failed because the plaintiffs did not submit the

screening policies of HIMA. Although they are effective for

demonstrating disparate treatment, written hospital screening

policies may not exist, and therefore cannot be necessary to a

disparate treatment determination.4

Moreover, "'we may affirm [a summary judgment] order on any

ground revealed by the record.'" McGurn v. Bell Microproducts,

284 F.3d 86, 91 (1st Cir. 2002) (quoting Houlton Citizens'

Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999)).
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Plaintiffs failed to submit any evidence establishing that HIMA

treated Figueroa any differently than it treated other patients

with substantially similar symptoms. HIMA submitted an affidavit

from its president, Carlos Pineiro Crespo, stating that "there were

no deviations on Mr. Figueroa's case from the standard treatment

HIMA offers persons in Mr. Figueroa's condition." The plaintiffs

cannot contradict this assertion because they have not addressed

the baseline level of screening prevailing at HIMA. At his

deposition, Dr. Nateman was asked whether "there was [sic] any

deviations of the standard treatment that [HIMA] gives to people in

the condition of Mr. Figueroa," and he replied "I can't comment on

that. I'm not sure." The plaintiffs made no effort to compare

Figueroa's screening with screenings of other HIMA patients

suffering from substantially similar symptoms. By submitting no

testimony regarding the baseline of care which the hospital

provides, the plaintiffs failed to raise a genuine question of

material fact on the issue of differential treatment. 

The plaintiffs argue that the hospital may not have revealed

its screening procedures during discovery, and that subsequent

fact-finding might reveal this crucial evidence. They claim that

"[w]hen Defendants control the information, in essence controlling

the keys to the dismissal, the dismissal should not be granted,"

Ortiz v. Mennonite Gen. Hosp., 106 F. Supp. 2d 327, 331 (D.P.R.

2000). However, in Ortiz, the hospital clearly gave evasive

answers to interrogatories--something the plaintiffs here do not

allege. Id. Moreover, while they now imply that HIMA may be
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concealing the relevant documents, the plaintiffs assured the

district court on October 27, 2000, that "Defendant HIMA-Humacao

has answered all discovery submitted by the plaintiffs." Given

their failure to press for the relevant documentation at that

time, they cannot now claim that the mere allegation of disparate

treatment raises a genuine issue of material fact over whether

disparate treatment actually occurred. "A genuine issue of

material fact does not spring into being simply because a litigant

claims that one exists [or] 'promise[s] to produce admissible

evidence at trial.'" Griggs, 904 F.2d at 115 (quoting Garside v.

Osco Drug, Inc., 895 F.2d 46, 49 (1st Cir. 1990)). 

IV. Stabilization 

In addition to a medical screening requirement, EMTALA

mandates that hospitals stabilize patients with emergency medical

conditions before releasing them. See 42 U.S.C. § 1395dd(b)

(requiring "stabilizing treatment for emergency medical conditions

and labor"). In a footnote at the conclusion of their brief, the

plaintiffs claim that, although they charged HIMA with violating

the stabilization requirement in their complaint, "the district

court did not address [whether HIMA complied with] EMTALA's

stabilization requirement." However, the district court did

explain why the stabilization requirement does not apply to this

case: "If no emergency condition is detected, there is no duty to

stabilize." The district court's inquiry properly ended after it

determined that Figueroa's screening was neither inadequate nor

inequitable, and that the screening revealed no emergency
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condition. A hospital is only "required to stabilize" an

individual if "the hospital determines that the individual has an

emergency medical condition." 42 U.S.C. § 1395dd(b)(1). The

district court correctly applied the statute to this case.

V. Conclusion

For the foregoing reasons, the decision of the district court

is affirmed. Each side shall bear its own costs.