### The Hon. William R. Wilson, Jr., United S tates District Judge 1 

### for the Eastern District of Arkansas. _____________ No. 95-1468EA

_____________ Harold Summers, * * Appellant, * * On Appeal from the United v. * States District Court for * the Eastern District * of Arkansas. Baptist Medical Center * Arkadelphia, * * Appellee. *

___________ Submitted: April 9, 1996 Filed: August 5, 1996

___________ Before RICHARD S. ARNOLD, Chief Judge, HEANEY, McMILLIAN, FAGG, BOWMAN , WOLLM AN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, an d MURPHY, Circuit Judges, en banc

.

___________ RICHARD S. ARNOLD, Chief Judge.

Har old Summers brought this case against Baptist Medical Cente r Arkade lphia (Baptist), a hospital in Arkadelphia, Arkansas. The cas e arises under the Emer gency Medical Treatment and Active Labor Act of 1986 (EMTALA), 42 U.S.C. § 1395dd. Summers claims that he was not appropriatel y screened for treatmen t when he was brought in to Baptist's emergency room after a deer-hunting accident. The District Court granted Baptist' s 1 motion for summary

### -2-

judgment and dismissed the complaint. Summers appealed, and a panel o f this Court reversed and remanded for trial, one judge dissenting. Summers
v. Baptis t Medical Center Arkadelphia , 69 F.3d 902 (8th Cir. 1995). W e grante d Baptist's suggestion for rehearing en banc, thus vacating th e opinion and judgment of the panel. Having heard oral argument before the Court en banc, we now affirm the judgment of the District Court. We hold tha t something more than, or different from, ordinary negligence in th e emergency-room screening process must be shown t o make out a federal claim under EMTALA.

I.
We state the facts in the light most favorable to the plaintiff, the party opposing summary judgment. On October 25, 1992, Summers fell out of
a tree stand while deer hunting near Arkadelphia. An ambulance brought hi m to Baptist's emergency room. A nurse took the medical history, and a physic ian saw Summers immediately. Summers testified that the docto r pressed "on my stomach and stuff." Deposition of Harold Summers, Record on Appeal (R.) 43. S ummers said he "was hurting in my chest real bad and I was hearing this popping noise every time I br eathed . . .. I [told the doctor] I was hurting[in my chest] . . .. I heard this snapping, and he told me I was having muscle spasms." Ibid . Summers also complained o f pain in his back.

The e mergency-room physician ordered four x-rays of the patient' s spi ne. (Other routine tests were done, but they are not material fo r present purposes.) Both the thoracic and the lumbar spine were covered. The physician recalls the patient's complaining of pain in his back, and Bap tist conceded in the District Court that Summers complained of ches t pain, but the doctor testified that Summers did not complain of pain in th e front part of his che st. The doctor pressed on the front and back of the chest, noticed no difficulty in breathing, and heard no popping or

### -3-

crackl ing-type sounds on listening to the chest, Deposition of G.H

. Ferrell, Jr., M.D., R . 137-38. The doctor did not remember the patient's saying he could hear popping-type sounds, R. 138, and felt or heard nothin g to indicate a broken sternum, R. 139. "If he had complained of pain in th e sternum or pain in the ribs, we would have x-rayed those." R. 144.
No x-rays of the chest were taken. The spinal x-rays showed, in the opinio n of the physician at Baptist, only an old break at the eight h thora cic vertebra. Summers was told that he was suffering from muscl e spasms. He said he w as in pain and asked to be admitted to the hospital. He was told no. Summers then said he had insura nce and $1,200 in cash, in
case the hospital felt his admission would cause some sort of financia l problems, but he was still refused admission. The doctor thought he did not need to be admitted to the hospital. Summers was given pain injection s and discharged with instructions to see a doctor at home (Jonesboro , Arka nsas) the next day. He was loaded into a pick-up truck and had t o endure the five-hour drive home in pain.
The next day Summers felt too sore t o get out of bed, and did not go to his family doctor. The day after that, though, October 27, he was in such pain that he went by ambulance to St. Bernard's Regional Medica l Center. He was given, among other tests, a chest x-ray. This x-ray was difficult to read, so a CT (computerized tomography) scan was done. The
scan revealed a fresh break of the seventh thoracic vertebra. In addition , the x-ray showed a br oken sternum and a broken seventh rib. According to Rebe cca Barrett-Tuck, M.D., a Jonesboro neurosurgeon, the chest injur y "certainlydoes constitute a life threatening injury," Affidavit of Dr. Barrett-Tuck, R. 115. Summers was kept in the hospital at Jonesboro for 14 days, some of that time in intensive care. I t is fair to conclude that if a chest x-ray had been taken at Arkadelphia, the broken breast-bone and rib would have been discovered, Summers would have been hospitalized a t once, and the

### -4-

patient would have been spared at least two unnecessary days of anxiety an d pain.

II.

The pl aintiff's main claim is that, on the basis of this record, a jury could properly find Baptist had failed to " provide for an appropriate medical screening examination within the capability of [its] . .

. emergency department . . .." 42 U.S.C. § 1395dd(a). Baptist agrees that patients complaining of pain in the front of their chest, or of snapping
or popping noises when breathing, would normally be given a chest x-ray. The jury could find that Summers did so complain, but he was not given a chest x-ray. His screening examination was therefore not "appropriate."

In order to consider this argument, we first set out the relevan t part of the statute a nd then describe how courts have interpreted it. It is always important to pay close attention to the words of a statute, or any other document that one must construe, so we begin by setting out thos e words:
§ 1395dd. Examination and treatment for emergency

medical conditions and women in labor (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 tre atment for a medical condition, the hospita l mus t provide for an appropriate medical screenin g examination within the capa bility of the hospital's emergency department, including ancillary services routinely available to the emergency department, to det ermine whether or not an emergency medica l condition (within the

### -5- mea ning of subsection (e)(1) of this section ) exists.

The statute applies to hospitals which have executed provide r agreements under the Medicare Program, and there is no dispute that Baptis t is such a hospital. The operative language of the statute for presen t purposes is that such a hospital "must provide for an appropriate medical screening examination within the capability of the hospital's emergenc y department . . . to determine whether or not an emergency medical conditio n

. . . exists." What is meant by the word "appropriate"? One possibl e meaning, perhaps the most natural one, would be that medical screenin g examinations must be correct, properly done, if not perfect, at least not negligent. It would be easy to say, for example, simply as a matter of th e English language, that a negligently performed screening examination is no t
an appro priate one. So far as we can determine, however, no court ha s interpret ed the statute in such an expansive fashion, and it is easy t o understand why.

First of all, the purpose of the statute was to address a distinc t and rather narrow pro blem -- the "dumping" of uninsured, underinsured, or indigent patients by hospitals who did not want to treat them. A patient is "dumped" when he o r she is shunted off by one hospital to another, the second one being, for example, a so-called "charity institution." Th e legisl ative history underlying the enactment of EMTALA, which we thin k proper to consult in order to interpret the ambiguous term "appropriate," mak es this limited purpose clear. See, e.g. , H.R. Rep. No. 241, 99t h Cong., 1st Sess., Par t I, at 27 (1985), reprinted in 1986 U.S. Code Cong. & Admin. News 579, 605, where the following passage appears:

Explanation of provision.

-- The Committee is greatly concerned about the increasing number of report s tha t hospital emergency rooms are refusing t o accept or treat patients with

### -6- emerge ncyconditions if the patient does not hav e medical insurance. The Com mittee is most concerned that medically unstable patients are not bein g treated appropriately. There have been reports of situations where treatment was simply not provided. In numerous other instances, patients in a n un stable condition have been transferre d improperly, sometimes without the consent of th e receiving hospital.

We mu st be mindful, on the other hand, that it is the statute, an d not a committee repor t, that is signed by the President and has therefore become law. We do not cite the committee report or the evident purpos e behind the statute insupport of a theory that a person must show that he has been "dumped" in order to bring an action under EMTALA. The statute clearly applies to "any individual," 42 U.S.C. § 1395dd(a) whether insured
or not, and, therefore, the fact that Baptist's motivation in thi s particular case was obviously not to dump an uni nsured or indigent patient does not defeat the plaintiff's action. We have no doubt that "dumping" is covered by the sta tute, and that a refusal to screen a patient because he or she had no insu rance would violate the statute, but other practices
can violat e it as well. The question is not whether a plaintiff ha s insur ance, or whether he was refused screening because of lack o f insurance, but, rather, whether he was afforded an "appropriate" medical screening examination.

So far as we can tell, every court that has considered EMTALA ha s disclaimed any notion that it creates a general federal cause of action fo r medical malpractice i n emergency rooms. The opinion of our panel in this very case, for example, affirms the general rule that

EMTALA is not a federal malpractice statute and it do es not set a national emergency health car e sta ndard; claims of misdiagnosis or inadequat e treatment are left to the state malpractice arena.

### Summers did not join a pendent state-law claim for medica l 2 

### negligence in his complaint.
-7- 69 F.3d a t 904. The courts have construed the statute in this rathe r
conser vative fashion, we suppose, out of sensitivity to policies o f federalism. Congress can of course, within constitutional limits , federalize anything i t wants to. Whether it chooses to do so is a matter of policy for it to decide, not us. But in construing statutes that are less than explicit, t he courts will not assume a purpose to create a vast
new realm of federal law, creating a federal remedy for injuries that stat e tort law already addresses. If Congress wishes to take such a far-reachin g step, we exp ect it to say so clearly. This is the rule, generall y spea king, in interpreting federal criminal statutes, see, e.g. , Unite d States v. Bass , 404 U.S. 336, 349-50 (1971), andwe have applied it in the civil context as well, H.J. Inc. v. Northwestern Bell Tel. Co. , 954 F.2d 485, 495-96 (8th Cir.), cert. denied , 504 U.S. 957 (1992).

Decided c ases uniformly support this approach to the interpretation of EMTALA. A good example is Chief Judge Wilkin son's excellent opinion in Vickers v. Nash General Hospital, Inc. , 78 F.3d 139 (4th Cir. 1996). In Vickers , the Fourth C ircuit carefully explains that EMTALA imposes only a limited duty on hospitals with emergency rooms. It is not a substitute fo r state-law malpractice actions. It does not guarantee proper diagnosis or provide a federal remedy for medical negligence. "EMTALA `is not intended 2 to duplicate preexisting legal protections, but rather to create a ne w
cause o f action, generally unavailable under state tort law, for wha t amounts to failure to treat.'" Id . at 142, quot ing Gatewood v. Washington Healthcare Corp. , 933 F.2d 1037, 1041 (D.C. Cir. 1991). The law of this Circuit is to the same effect. Williams v. Birkeness , 34 F.3d 695, 69 7 (8th C ir. 1994) (appropriate medical screening does not mean correc t diagnosis).

### -8- One way o f limiting the potentially sweeping scope of the statute's language is to require that a plaintiff prove so me sort of improper motive in order to recover u nder EMTALA. As we have previously indicated, we do not agree that evidence of a purpose to "dump" a patient is required. Nor does the statute requ ire any other particular motivation. In this sense, the statute is, as plaintiff argues, a strict-liability provision. If a hospital fails to provide an appropriate medical screening examination, it is liab le, no matter what the motivation was for this failure. In thi s respect, we depart from the reasoning of Cleland v. Bronson Health Car e Group, Inc. , 917 F.2d 266, 272 (6th Cir. 1990), which would require some showing of improper motivation, not necessarily involving indigency or lac k of insurance, but including other improper reasons, for example, race, sex , drunkenness, or personal prejudice. We believe that any of these showings would suffice to make out a case of inappropriat e screening, but we cannot agree that such evide nce of improper motivation is essential. Again, the statute contains no such requirement, and every court of appeals, with the exception of the Clelandcourt, which has addressed the issue, has rejecte d the p roposition that improper motive must be shown. E.g. , Gatewood v

. Washington Healthcare Corp. , supra , 933 F.2d at 1041 n.3.
So, if im

proper motive is not required, and if the statute does not create a federal remedy for medical malpractice in emergency rooms, what does the statute do? Something more than or different from negligence mus t be shown, but what is that "something"? We have previously taken th e positi on that the "something" required is lack of uniform treatment

. Williams v. Birkeness , supra , 34 F.3d at 697. An inappropriate screening examination is one that has a disparate impact o n the plaintiff. Patients
are entitled under EMTALA, not to correct or non-negligent treatment in al l circumstances, but to be treated as other similarly situated patients are treat ed, within the hospital's capabilities. It is up to the hospita l itself to determine what

### W e also have before us a brief amicus curiae filed by th e 3 

### Ark ansas Hospital Association. This brief has greatly aided ou r consideration of this appeal.
-9- its screening procedures will be. Having done so, it must apply them alik e to all patients. Several other circuits have also so held, Vickers v. Nas h General Ho spital, Inc. , supra , 78 F.3d at 143; Correa v. Hospital Sa n Francisco , 69 F.3d 11 84, 1192-93 (1st Cir. 1995) cert. denied , 116 S. Ct. 1423 (1996); Repp v. Anadarko Municipal Hospital , 43 F.3d 519, 522 (10th Cir. 1994); Holcomb v . Monahan , 30 F.3d 116, 117 (11th Cir. 1994), and we now reaffirm this holding.

III.

As we u nderstand the positions taken by both parties to this case 3 they would accept, at least in general, all of the principles so far laid out in this opinion. Plaintiff, for example, co ncedes that he has to show non-unifor mor disparate treatment in order to succeed. He takes th e posit ion, however, that he has met this requirement. According to th e hospit al's own admission, a patient complaining of snapping and poppin g noises in his chest would have been given a ches t x-ray. Plaintiff, as we must assume for purposes of this motion for summary judgment, did make jus t such a c omplaint, but was not given the chest x-ray. He was therefor e treated differently from other patients, and differently from the treatmen t pre scribed by the hospital's normal screening process. Therefore he i s entitled to recover under EMTALA.

The ar gument has a surface appeal, and, indeed, the panel tha t initiallyheard this case adopted this very approach. On reflection, we are not convinced.

The important point for us is that the very respect in which th e plaintiff's screening is said to be non-uniform -- failure to

### -10-

order a chest x-ray for a patient complaining of popping noises in hi s chest -- is nothing m ore than an accusation of negligence. We accept for purp oses of this appeal from a summary judgment the proposition tha t Summers in fact made this complaint, and that th e doctor did not hear him,
or forgo t what had been said. (There is no contention that the docto r deliberatelyfailed to order a chest x-ray.) This may have been medical malpractice, but if i t is also an EMTALA violation, that statute has been converte d into a federal cause of action for a vast range of claims o f med ical negligence. It would almost always be possible to characteriz e negligence in the scr eening process as non-uniform treatment, because any ho spital's screening process will presumably include a non-negligen t response to symptoms or complaints presented by a patient. To constru e EMTALA this expansively would be inconsistent with the principles and case s set out earlier in this opinion.

We fi nd two recent cases helpful at this point. One is Vickers v

. Nash Ge neral Hospital, Inc. , supra . There, the patient, Vickers, ha d fallen on his head. He went to the defendant hospital's emergency room. The physician there examined him and diagnosed him as suffering fro m lacerations of the scalp. These were repaired by stitches. X-rays of the cervical spine were taken and revealed no damage. Vickers was the n dis charged. Four days later, he died. He was found to have a broke n skull, a tear in his cerebrum, and an epidural hematoma. On these facts, the Fourth Circuit he ld that no EMTALA claim was stated. The allegation, the Co urt thought, "ultimately present[s] [a] conventional charge[ ] o f misdiagnosis, and . . . [its] reasoning would obliterate any distinction between claims of malpractice under state law and actions under EMTALA." 78 F.3d at 143.
The Court went on to explain:
The flaw in this reasoning is its failure t o take the actual diagnosis as a given.

### -11- EMTALA is implicated only when individuals who are perceived to have the same medical conditio n rec eive disparate treatment; it is not implicate d whe never individuals who turn out in fact to hav e had the same condition rece ive disparate treatment. The Act would otherwise become indistinguishabl e fromstate malpractice law. As a result, when a n exe rcise in medical judgment produces a give n diagnosis, the decision to prescribe a treatmen t respon ding to the diagnosis cannot form the basi s of an EMTALA claim of inappropriate screening.

Id. at 144 (citation omitted).

The key p hrase in this holding is "perceived to have." Th e emergency-room

physician is required by EMTALA to screen and treat th e patient for those con ditions the physician perceives the patient to have. So here, the physician, we must assume through inadvertence or inattention , did not perceive Summ ers to have cracking or popping noises in his chest,
or pain in the front of his chest. This is why no chest x-rays were taken

. In the medical judgme nt of the physician, Summers did not need a chest xray. Summers did receive substantial medical treatment. It was no t perfect, perhaps negligent, but he was treated no differently from an y other patient perceived to have the same condition.

Corre a v. Hospital San Francisco , supra , is also persuasive. Th e
case is essentially one of failure to screen a patient at all, and th e Court upheld a jury verdict for the patient's su rvivors. In the course of its opinion, though, the Court carefully explains the limited scope o f EMTALA:

. . . EMTALA does not create a cause of action for

medical malpractice . . .. Therefore, a refusal to follow regular screening pr ocedures in a particular instance contravenes the statute, . . . but faulty scr eening, in a particular case, as opposed t o dispar ate screening or refusing to screen at all , does

### I n fairness to the plaintiff, we observe that Power v
. 4 

### Arlington Hospital Ass'n , 42 F.3d 851 (4th Cir. 1994), comes close, on its facts, to supporting his position. We find the reaso ning of the Fourth Circuit's later opinion in Vickers , which analyze s expl icitlythe problems of interpreting EMTALA that we hav e discussed in this opinion, more persuasive.
-12- not contravene the statute.

69 F.3d at 1192-93. The case now before is, at most, one of "fault y screeni ng." We agree with the First Circuit that such a claim does no t come within EMTALA.

In sum, we hold that instances of "dumping," or improper screenin g of patients for a discriminatory reason, or failure to screen at all, or screening a patient d ifferently from other patients perceived to have the
same con dition, all are actionable under EMTALA. But instances o f negl igence in the screening or diagnostic process, or of mere fault y screening, are not. The District Court was therefore correct to dismiss Summers's claim that the failure to give him a chest x-ray violate d EMTALA. 4

IV.

Pla intiff also advances, though with less emphasis, three othe r theories of EMTALA vi olation. We shall now discuss each of them in turn.

1. It is claimed that the hospital had no written screenin g procedures, and that this omission, in and of itself, is a violation of th e screening provision o f EMTALA, 42 U.S.C. § 1395dd(a). The accusation may be un fair as a matter of fact. Apparently there was no single piece o f paper or manual captioned "Emergency Room Screen ing Procedures," but there were a number of forms routinely used by emergen cy-room personnel, and the practice

### -13-

of the hospital clearly required that these forms be followed and filled out. In any event, the hospital did have a screening procedure, even if unwritten in part, and the statute makes no additional requirement. I t says nothing about written procedures. 2. A violation of the same provisio n is claimed with respect to the taki ng of Summers's medical history. Part of the hospital's regula r screening procedure, it is argued, is to take a complete and accurat e medical history. This was not done in Mr. Summers's case, it is said

. Plaintiff argues that "an adequate medical histo ry would have consisted of knowing whether or not the patient was unconscio us, how far he had fallen, what he had fallen on, the time he had fallen with reference to when he wa s being treated, and wh ether he had taken any pain medication from the time of t he injury until time seen in the emergency room . . .. Appellee' s per sonnel made none of these inquiries or findings during the emergenc y
roome xamination." Brief for Appellant 9. A partial answer to thi s contention is that a good deal of the information mentioned had alread y been obtained by the emergency medical technicia ns who transported Summers to the hospital in an ambulance. In addition, we cannot see that any of the se alleged omissions has any particular connection to the failure t o discover the broken rib and sternum. And most basically, this sort o f omission is the same kind of faulty-screening or negligent-screening theor y that we have previously rejected.
3. Finally, Summers makes a claim under another provision of E MTALA, 42 U.S.C. § 1395dd(b)(1). This portion of the statute provides, i n pertinent part, as follows:

If any individual . . . comes to a hospita l and the hospital determines that the individual has an emergency medical condition, the hospital mus t provide

. . . (A) . . . for such further medica l examin ation and such treatment as may be require d to stabilize the medical condition . . ..

### -14- The claim

is that the hospital, before discharging Summers, did not take prop er steps to stabilize his condition. This claim must fai l because, under the express wording of the statute, this portion of EMTALA applies only if "the hospital determines that the individual has a n emergency medical condition . . ." (emphasis supplied). Here, the hospita l believed Summers was suffering from muscle spasms, not an emergency medica l condition. The duty to stabilize therefore never arose. A hospital must ha ve had actual knowledge of the individual's unstabilized emergenc y medical condition if a claim under § 1395dd(c) is to succeed. Vickers v. Nash General Hospital, Inc. , supra , 78 F.3d at 1 45; Urban v. King , 43 F.3d 523, 525-26 (10th Cir. 1994); Baber v. Hospital Corp. of America , 977 F.2d 872, 883 (4th Cir. 1992); Cleland v. Bronson Health Care Group, Inc. , supra , 917 F.2d at 268-69 (6th Cir. 1990). V.
For the reasons given in this opinio n, we believe the District Court acted correctly in granting the defendant's moti on for summary judgment on Mr. Summers's claims under EMTALA. The judgment of the District Court is therefore

Affirmed.

HEA NEY, Circuit Judge, with whom McMILLIAN, Circuit Judge, joins , dissenting.

In affirming the dismissal of Summers' claim, the majority assume s facts against Summers ' position and significantly limits the scope of the statute. Under EMTALA, as plainly written, an i ndividual who suffers harm
as a dire ct result of a hospital emergency room's failure to follo w appropriate medical screening procedures has a c ause of action against the hospital. 42 U.S.C. §§ 1395dd(a), (d)(2)(A). For the reasons stated in my original majority opinion, Summers v. Baptist Medical Cente r Arkadelphia , 69

### -15-

F.3d 902 (8th Cir. 1995), I believe that Summers ' claim presents a genuine issue of material fact that the district court s hould have permitted to go to the jury. Thus, I respectfully dissent.

I.

It has never been my position that EMTALA establishes a vast rang e of claim s for medical negligence. EMTALA has a much more limite d application than state malpractice law: it applies only to emergency room s of hos pitals that have provider agreements under the Medicare program

. EMTALA al so does not establish a national standard of care. Rather, i t requ ires hospitals to develop screening procedures to detect emergenc y medical conditions. As the majority recognizes, the statute does no t
man date that the procedures be written and a hospital may make it s procedures as detailed or as general as it sees fit. It is the hospital's obligation, however, to follow its established screening procedures for al l patients who present with complaints to the emer gency room. Failure to do
so constitutes a prima facie violation of the federal statute. The more a hospital's establis hed procedures are unwritten and loosely-defined--or essentiallyequivalent to "due care"--the more an EMTALA cause of action may overlap with a state medical malpractice claim.

The only evidence in this record of a hospital standard applicabl e to Sum mers' complaint is Dr. Ferrell's deposition testimony that ha d Summers complained of pain in the sternum or pain in the ribs, he woul d have x-rayed those regions. (R. 149.) As the majority notes, Baptis t agrees that patients complaining of pain in the front of their chest, or of snapping or popping noises when breathing, would normally be given a chest x-ray. Maj. Op., supra at 4. The majority, considering the facts in a ligh t most favorable to the non-moving party, accepts as true tha t Summers complained to the doctor about his chest pains and throbbing chest

. Baptist even concedes this point. The majority assumes, however,

### The only no table factual difference is that Power involved a 1 

### pati ent who most likely was unable to pay for her care. She wa s unemployed and had no health insurance. 42 F.3d at 854. Li ke most circuits, however, the Power court explicitly held that an EMTALA plaintiff need not offer proof of an improper motive on the part of the hospital. Id. at 859.

The majority "observes" that Power supports Summers ' 2 

### position, Maj. Op., supra at 12 n.4, but not surprisingly fi nds the Fourth Circuit's later opinion more persuasive. See Vickers v

. Nash Gener al Hospital, Inc. , 78 F.3d 139 (4th Cir. 1996). I n Vickers , the Fourth Circuit does not discuss Power and relies heavily on the -16- that the physician:
throughinadvertence or inattention, did not perceive Summers to have cracking or popping noises in his chest, or pain in the front of his chest. This is why no chest x-rays were taken

. In the medical judgment of the physician, Summers did not need a che st x-ray. Summers did receive substantial medica l treatment.
Maj. Op., supra at 11.
With these few assumptions, the majo rity effectively usurps the role of the jury and makes the factual findings necessary to dismiss Summers' claimas one of mere negligence. It was for the jury, not the distric t court or this court, to determine the relative credibility of the parties and wha t occurred in the emergency room that day. We should not assum e that the doctor did n ot hear Summers or forgot about his complaints. Nor should we assume that it was the physician's medical judgment that prompte d his failure to give Summers a chest x-ray. It i s possible that the doctor heard S ummers' complaints and, for no legitimate reason, failed to d o anything about them. That alternative would establish the essentials of an EMTALA cause of action.

As the majority recognizes, Summers' claim is factually similar t o the plaintiff's claim in Power v. Arlington Hosp. Ass'n , 42 F.3d 851 (4th Cir. 1994), in which the Fourth Circuit affirmed a jury's awar d of damages 1 under EMTALA. In Power , the plaintiff 2

### dissenting opinion from our original panel decision. Id . at 143-

144.
-17- was examined in the emergency room by two nurses and a doctor and was give n various tests. Id. a t 854. At trial, the doctor testified unequivocally that he treated Power as he would have treated any other patient with the
same complaints and vital signs. Id. at 855. There was also testimony, however, that the doctor did not follow the usual hospital procedures in attending to Power. Id. Specifically, there was testimony that a blood test w as a necessary component of an appropriate medical screenin g examination for a patient who presented at the e mergency room with Power's symptoms. Id. The Fourth Circuit determined that Power presented evidenc e fromwhich a jury could conclude she was treated differently from othe r patients and that the hospital did not apply its standard screenin g procedures uniformly. Id. at 856. Similarly, Summers presented sufficien t evidence of an EMTALA violation for the district court to permit his claim to go to the jury.

II.
The major ity's inappropriate resolution of this appeal from a grant of summary judgment is driven by its fear of giv ing EMTALA too "expansive"
an int erpretation such that it would apply in situations traditionall y covered only by state malpractice law. Not only is this fear unwarranted, it cannot justify significantly altering the plain language of the statute

.

The statu te clearly states that an individual has a cause of action against a hospital wh enever the hospital's emergency room personnel fails to provide an appropriate medical screening exam ination and the individual is harme d as a direct result of that failure. 42 U.S.C. §§ 1395dd(a) , (d)(2)(A). The personal harm

### T he statute is not to be read so strictly as to preclude a 3 

### medical judgment defense on the part of the hospital, howeve r. The FourthCircuit in Power , 42 F.3d at 858, recognized that th e application of a screening procedure necessarily requires th e exerc ise of medical training and judgment. The court set out a fr amework for EMTALA litigation to address those considerations

. Id. at 858. Once a plaintiff makes a threshold showing o f differential treatment, the hospital may offer rebuttal evid ence by demonstrating either that the patient was accorded the same level of tr eatment that all other patients receive, or that a test o r procedure was not given becaus e the physician did not believe that the test was reasonable or necessary under the particula r circumstances. Id . The plaintiff then has the opportunity t o challenge the physicians' medical judgment through her own expert testimony. Id. -18- pro vision of the statute does not require a plaintiff to prove th e hospital's intent in violating a statutory requi rement, but rather permits recovery for all viol ations, regardless of the hospital's motivation. In contrast, the statute provides for a civil money penalty against a hospita l for a negligent viola tion of a statutory requirement. § 1395dd(d)(1)(A). This distinction--the explicit negligence requirement for a civil penalty-

- reinfo rces the plain statutory language of the personal harm provision

. An EMTALA plaintiff need not demonstrate any level of intent on the part of the hospital, but only that the hospital failed to give him a n appropriate screening examination. 3
The major ity gives lip service to following the literal language of the sta tute by not requiring proof of bias on the part of the hospital

. Yet its strained definition of "appropriate," (i.e., "uniform" or tha t whichwould be given to a similarly situated patient) effectively limits the stat ute's application to only those cases that involve bias o r dis crimination. I see no way for a plaintiff to prove non-uniform o r dispar ate treatment without evidence of the hospital's bias against a partic ular group to which he belongs. In this respect, our court i s following the lead of almost every circuit that has examined this issue. While the Sixth Circu it is the only circuit that admits to requiring bias evidence

### -19-

for an EMTALA violation, see Cleland v. Bronson Health Care Group, Inc. , 917 F.2d 266, 272 (6th Cir. 1990), the only circuit court decisions that permit an EMTALA claim to go forward involve evi dence of bias. See Correa v. Hosp. San Francisco , 69 F.3d 1184, 1189 (1st Cir. 1995) (affirming jury verdic t for plaintiff where "datum suggesting [hospital] tried to shun t [patient] as soon as it scrutinized her insuranc e card"), cert. denied sub
nom. Hosp. San Francisco, Inc. v. Gonzalez , 116 S. Ct. 1423 (1996); Power , 42 F.3d at 854 (affirming jury verdict for unemployed and uninsure d plaintiff).
In light of Congress' intent to address patient "dumping" in en acting EMTALA, the majority is understandably frustrate d by the plain language of the statute. Its limitation of the statute's application perhaps eve n meets Congress' objec tive better than the law enacted by Congress. It is not our role, however, to re-draft the statute and to alter its plai n language. See Vicker s v. Nash General Hosp., Inc. , 78 F.3d 139, 146 (4th Cir. 19 96) (Ervin, J., dissenting) ("Regardless of what we divine th e
con gressional intent to have been, the statute is perfectly clear abou t what a plaintiff must allege in order to state a claim.").

Under the statute as written, credible allegations that a hospita l has failed to follow its own established screening procedures in th e treatment of a particular patient constitute a threshold showing of a n EMTALA violation. Summers has made adequate allegations to survive summar y judgment. Whether th e doctor acted within the parameters of a hospital's loose, unwritten screening procedures is a factual question to b e determined by the jury. I refuse to assume facts against Summers' positio n in an effo rt to limit EMTALA claims generally. Thus, I adhere to my original position andwould reverse the district court's grant of summary judgment in this case.

### -20- A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.