# United Stat es Court of Appeals For the First C ircuit

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, 2002-2- LIPEZ, CircuitJudge . This case concerns the grounds for establishing t he l iability of a hospital under the Emergency Medical Treatment and Active Lab or A ct (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 (H IMA) provided such a minimal screening for Narciso Figueroa that it could n ot 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 inferen ce s in that party's favor." Griggs-Ryan v. Smith , 904 F.2d112, 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 fromurinary 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).-3-

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 examinedF igueroa. Atlhough there

were other patient s in t he 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 claimedthat Dr. Negron Ag osto t old Figueroa's niece (the nurse) that Figueroa could be discharged because "nobody dies from [bronchial pneumonia]." Before del Carmen G uada lupe 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 hospita l 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. Af ter 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 tak e h im to another hospital,-4-

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 pe rforme d 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 Puer to 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 hadgiven 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

s u bmittedhospital reports, records, and policies, a deposition from del Carmen Guadalupe, and a letter and deposition from their expert, Dr. David R. Na tem an, Medical Director of the Emergency Services Department of the B aptist Hospital of Miami. Dr. Nateman's report concludedthat both the Hospital and Dr. Negron Agosto fell belo w t he 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 determinat ion 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. Ashf ord 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 Ci r. 1993); Baber v. Hosp. Corp. of America , 977 F.2d 872 (4th Cir. 1992); Gatewoodv. Washington Healthcare Corp. , 933 F.2d 1037 (D.C.Cir. 1991)). Since we decide that EMTALA was not violatedhere, we need not decide the question of physician liability in this case. -5- On June 22, 2001, the district court granted HIMA's motion for summary judgment with respect to the plaintiffs' EMTALA claim, and dismissedwithout 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 disa gree 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 sta ndard 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 t anta mount to no medical screening. As we explain, neither party has it exactly right.2 A cove red hospital is defined as a "hospital that has

enteredinto 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. -6- By its terms, EMTALA is designed to assure that any person visiting a covered hospital's emergency room is sc ree ned 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 emergencydepartment and a request is made on the individual's behalf for examination or treat ment for a medical condition, the hospital m us t provide for an appropriate medical screening examination within the capabilityof the hospital's emergency department, including ancillary services routinely available to the emergencydepart ment, 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 scree ning 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 orga n or part[.] 42 U .S.C. § 1395dd(e)(1)(A). To identify such conditions, hospitals are expected to employ "ancillary services routinely

ava ila ble to the emergency department." 42 U.S.C. § 1395dd(a).-7-

However, they are no t liab le 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 statuto ry language as a guide, we have said previouslythat "[t]he essence of [EMTALA's] screening requirement is that there be some screening procedure, and that it be administeredeven-handedly." Correa v. Hosp. San Francisco , 69 F.3d1184, 1192 (1st Cir. 1995). Thus, there is both a substantive anda procedural component to an appropriate m edic al 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 lev el of screening uniformly to all those who present substantially similar complaints." Id. ; see also Jackson v. East BayHosp. , 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 n ot 'designed to identify acute and severe symptoms that alert the physician of the needfor immediate medical attention to pr even t serious bodily injury.'" (quoting Eberhardt v. City of Los Angeles , 62 F.3d 1253, 1257 (9th Cir. 1995))).-8- III. Applying the Legal Standards A. Reasonably Calculated to Identify Critical Medical Conditions In pressing their claim that HIMA failed to provide Figueroa wit h an appropriate medical screening under the terms of EMT ALA , plaintiffs argued that "[t]he medical examination and treatment [offeredto Figueroa] . . . was totally inadequa te and inappropriate for a man in his condition." In moving for summary judgmen t i n 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, andchest x-rays [and] laboratory tests were ordered." Figueroa's wife, del Carmen Guadalupe, confirmed this testimonyin 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 Carme n Gu adalupe 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]yfive 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 becaus e "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 att orney's question as to whether "the reading by the emergency roomdoctor [was] obviously wrong, or . . . [was] reasonably misread [by a non-radiologist]." -9- 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 reasonablycalculated to identify critical medical conditions afflicting him. In response, the plaintiffs argue that, while this screening examination may have bee n 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 comorbidconditions--his obesity, age (51), edematous legs,

c atheterization, and high respiration rate--made him a "vasc ula r nightmare waiting to happen," a man with an obvious "potential for death." Dr. Nateman concluded that an a ppropriate screening examination would have inc l uded, at a minimum, an electrocardiogram, a fuller assessment of Figueroa's respiratory function, and an immediate reading of the chest x-ray by a

r adiologist. 3 At the very least, say the plaintiffs, t hes e-10-

contentions created a "g enuine 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 EMTALAclaim 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 in distin guishable from the standard of

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

case triggered by a misdiagnosis. Under EMT ALA t he issue is not

w hat deficiencies in the standard of emergency room car e contributedto a misdiagnosis. See Gatewood , 933 F.2d at 1041 (obs erving that EMTALA is not intended "to ensure each emergency

roompatient a correct diagnosis"). Rather, the issue is whether the procedures followed in the emergency room, even if they resultedin 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), EM TA LA only requires "an appropriate medical screening examination within the capability of-11-

the hospital's emergency department." 42 U.S.C. § 1395dd(a). As the Fourth Circuit has observed: This section establ ish es a standard which will of necessitybe 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 acceptedmedical standards, it could have clearly specifieda 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 statedduring his deposition that, at his hospital, he would test "oxygen saturation [fo r ] 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 HIMAshould have had a radiologist examine Figueroa' s x -rays as
soon as theywere 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 hadan electroca rdiogr am machine available, or had staff on hand qualifiedto performa "respiratory differential"--two other items Dr. Nateman deemed essential to an "appropriate medical screening examination." A claimof 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's4 If evidence of such written screening poli cies were

indispensable to EMTALA liability, a hospital could avoid liability simply byfailing 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). -12- screening was no t "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 sc reeni ng standards of Defendant HIMA" was "a fatal f law in the ir case." Without that

e vidence, the district court concluded, the plaintiffs couldno t demonstrate that HIMA gave Figueroa a more cursory screening than it gave to other patients with substantially similar sym ptoms. Although we affirm the decision to grant summary judgment on the disparate treatment claim, w e d o not agree that the claim necessarilyfailed because the plain tiff s did not submit the screening policies of HIMA. Although they are effective fo r 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 j udgmen t] order on any groundrevealed by the record.'" McGurn v. Bell Microp rodu cts , 284 F .3d 86, 91 (1st Cir. 2002) (quoting Houlton Citizen s ' Coalition v. Town of Houlton , 175 F.3d 178, 184 (1st Cir. 1999)).-13-

Plaintiffs failed to submit any evidence establishing that HIMA treatedFigueroa any differently than it treated other patients with substantially similar symptoms. HIMA submitted an affidavit fromits president, Carlos Pineiro Crespo, stating that "there were

no deviations on Mr. Figueroa's case from the standa rd tre atment HIMA offers persons in Mr. Figueroa's condition." The plaintiffs

cann ot c ontradict 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

s uffering from substantially similar symptoms. By submittin g n o testimonyregarding 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 it s 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 grant ed ," 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 interroga t ories--something the plaintiffs here do not allege. Id. Moreover, while they now imply that HIMA may be-14-

concealing the r elevan t documents, the plaintiffs assured the district court on October 27 , 2000 , that "Defendant HIMA-Humacao has answered all discove ry sub mitted by the plaintiffs." Given their fail ure to press for the relevant documentation at that time, they cannot now claimthat the mere allegation of disparate trea tment r aises a genuine issue of material fact over whether disparate treatme nt actually occurred. "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists [or] 'p ro mise[s] to produce admissible evidence at trial.'" Griggs , 904 F.2d at 115 (quoting Garside v. Osco Drug, Inc. , 895 F.2d 46, 49 (1 st 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. § 1395d d (b) (requiring "stabilizing treatment for emergency medical conditions andlabor"). In a footnote at the conclusion of their brief, the plai ntiffs claim that, although they charged HIMA with violating the stabilization require ment in their complaint, "the district

co ur t did not address [whether HIMA complied with] EMTALA's stabilization requirement." However, the district court di d explain why the stabilization requir emen t 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 determinedthat Figueroa's s creen ing was neither inadequate nor inequi t able, and that the screening revealed no emergency-15-

condition. A hospital is only "require d to stabilize" an individual if "the hospital determines that the individual has an emergencymedical 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.