The Hon. William R. Wilson, Jr., United States 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,

WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, and

MURPHY, Circuit Judges, en banc.

___________

RICHARD S. ARNOLD, Chief Judge.

Harold Summers brought this case against Baptist Medical Center

Arkadelphia (Baptist), a hospital in Arkadelphia, Arkansas. The case

arises under the Emergency Medical Treatment and Active Labor Act of 1986

(EMTALA), 42 U.S.C. § 1395dd. Summers claims that he was not appropriately

screened for treatment 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
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judgment and dismissed the complaint. Summers appealed, and a panel of

this Court reversed and remanded for trial, one judge dissenting. Summers

v. Baptist Medical Center Arkadelphia, 69 F.3d 902 (8th Cir. 1995). We

granted Baptist's suggestion for rehearing en banc, thus vacating the

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

that something more than, or different from, ordinary negligence in the

emergency-room screening process must be shown to 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 him

to Baptist's emergency room. A nurse took the medical history, and a

physician saw Summers immediately. Summers testified that the doctor

pressed "on my stomach and stuff." Deposition of Harold Summers, Record

on Appeal (R.) 43. Summers said he "was hurting in my chest real bad and

I was hearing this popping noise every time I breathed . . .. 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 of

pain in his back.

The emergency-room physician ordered four x-rays of the patient's

spine. (Other routine tests were done, but they are not material for

present purposes.) Both the thoracic and the lumbar spine were covered.

The physician recalls the patient's complaining of pain in his back, and

Baptist conceded in the District Court that Summers complained of chest

pain, but the doctor testified that Summers did not complain of pain in the

front part of his chest. The doctor pressed on the front and back of the

chest, noticed no difficulty in breathing, and heard no popping or
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crackling-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 nothing

to indicate a broken sternum, R. 139. "If he had complained of pain in the

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

opinion of the physician at Baptist, only an old break at the eighth

thoracic vertebra. Summers was told that he was suffering from muscle

spasms. He said he was in pain and asked to be admitted to the hospital.

He was told no. Summers then said he had insurance and $1,200 in cash, in

case the hospital felt his admission would cause some sort of financial

problems, but he was still refused admission. The doctor thought he did

not need to be admitted to the hospital. Summers was given pain injections

and discharged with instructions to see a doctor at home (Jonesboro,

Arkansas) the next day. He was loaded into a pick-up truck and had to

endure the five-hour drive home in pain. 

The next day Summers felt too sore to 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 Medical

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 broken sternum and a broken seventh rib. According to

Rebecca Barrett-Tuck, M.D., a Jonesboro neurosurgeon, the chest injury

"certainly does 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. It 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 at

once, and the
-4-

patient would have been spared at least two unnecessary days of anxiety and

pain. 

II.

The plaintiff'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 relevant

part of the statute and 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 those

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

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
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meaning of subsection (e)(1) of this section)

exists. 

The statute applies to hospitals which have executed provider

agreements under the Medicare Program, and there is no dispute that Baptist

is such a hospital. The operative language of the statute for present

purposes is that such a hospital "must provide for an appropriate medical

screening examination within the capability of the hospital's emergency

department . . . to determine whether or not an emergency medical condition

. . . exists." What is meant by the word "appropriate"? One possible

meaning, perhaps the most natural one, would be that medical screening

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 the

English language, that a negligently performed screening examination is not

an appropriate one. So far as we can determine, however, no court has

interpreted the statute in such an expansive fashion, and it is easy to

understand why. 

First of all, the purpose of the statute was to address a distinct

and rather narrow problem -- the "dumping" of uninsured, underinsured, or

indigent patients by hospitals who did not want to treat them. A patient

is "dumped" when he or she is shunted off by one hospital to another, the

second one being, for example, a so-called "charity institution." The

legislative history underlying the enactment of EMTALA, which we think

proper to consult in order to interpret the ambiguous term "appropriate,"

makes this limited purpose clear. See, e.g., H.R. Rep. No. 241, 99th

Cong., 1st Sess., Part 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 reports

that hospital emergency rooms are refusing to

accept or treat patients with
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emergency conditions if the patient does not have

medical insurance. The Committee is most concerned

that medically unstable patients are not being

treated appropriately. There have been reports of

situations where treatment was simply not provided.

In numerous other instances, patients in an

unstable condition have been transferred

improperly, sometimes without the consent of the

receiving hospital. 

We must be mindful, on the other hand, that it is the statute, and

not a committee report, that is signed by the President and has therefore

become law. We do not cite the committee report or the evident purpose

behind the statute in support 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 this

particular case was obviously not to dump an uninsured or indigent patient

does not defeat the plaintiff's action. We have no doubt that "dumping"

is covered by the statute, and that a refusal to screen a patient because

he or she had no insurance would violate the statute, but other practices

can violate it as well. The question is not whether a plaintiff has

insurance, or whether he was refused screening because of lack of

insurance, but, rather, whether he was afforded an "appropriate" medical

screening examination. 

So far as we can tell, every court that has considered EMTALA has

disclaimed any notion that it creates a general federal cause of action for

medical malpractice in 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

does not set a national emergency health care

standard; claims of misdiagnosis or inadequate

treatment are left to the state malpractice arena.
 Summers did not join a pendent state-law claim for medical

2

negligence in his complaint.

-7-

69 F.3d at 904. The courts have construed the statute in this rather

conservative fashion, we suppose, out of sensitivity to policies of

federalism. Congress can of course, within constitutional limits,

federalize anything it 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, the courts will not assume a purpose to create a vast

new realm of federal law, creating a federal remedy for injuries that state

tort law already addresses. If Congress wishes to take such a far-reaching

step, we expect it to say so clearly. This is the rule, generally

speaking, in interpreting federal criminal statutes, see, e.g., United

States v. Bass, 404 U.S. 336, 349-50 (1971), and we 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 cases uniformly support this approach to the interpretation

of EMTALA. A good example is Chief Judge Wilkinson's excellent opinion in

Vickers v. Nash General Hospital, Inc., 78 F.3d 139 (4th Cir. 1996). In

Vickers, the Fourth Circuit carefully explains that EMTALA imposes only a

limited duty on hospitals with emergency rooms. It is not a substitute for

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 new

cause of action, generally unavailable under state tort law, for what

amounts to failure to treat.'" Id. at 142, quoting 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, 697

(8th Cir. 1994) (appropriate medical screening does not mean correct

diagnosis). 
-8-

One way of limiting the potentially sweeping scope of the statute's

language is to require that a plaintiff prove some sort of improper motive

in order to recover under 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 require 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 liable, no matter what the motivation was for this failure. In this

respect, we depart from the reasoning of Cleland v. Bronson Health Care

Group, Inc., 917 F.2d 266, 272 (6th Cir. 1990), which would require some

showing of improper motivation, not necessarily involving indigency or lack

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 inappropriate screening, but we cannot

agree that such evidence of improper motivation is essential. Again, the

statute contains no such requirement, and every court of appeals, with the

exception of the Cleland court, which has addressed the issue, has rejected

the proposition that improper motive must be shown. E.g., Gatewood v.

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

So, if improper 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 must

be shown, but what is that "something"? We have previously taken the

position 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 on the plaintiff. Patients

are entitled under EMTALA, not to correct or non-negligent treatment in all

circumstances, but to be treated as other similarly situated patients are

treated, within the hospital's capabilities. It is up to the hospital

itself to determine what
 We also have before us a brief amicus curiae filed by the

3

Arkansas Hospital Association. This brief has greatly aided our

consideration of this appeal.

-9-

its screening procedures will be. Having done so, it must apply them alike

to all patients. Several other circuits have also so held, Vickers v. Nash

General Hospital, Inc., supra, 78 F.3d at 143; Correa v. Hospital San

Francisco, 69 F.3d 1184, 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 understand the positions taken by both parties to this case3

they would accept, at least in general, all of the principles so far laid

out in this opinion. Plaintiff, for example, concedes that he has to show

non-uniform or disparate treatment in order to succeed. He takes the

position, however, that he has met this requirement. According to the

hospital's own admission, a patient complaining of snapping and popping

noises in his chest would have been given a chest x-ray. Plaintiff, as we

must assume for purposes of this motion for summary judgment, did make just

such a complaint, but was not given the chest x-ray. He was therefore

treated differently from other patients, and differently from the treatment

prescribed by the hospital's normal screening process. Therefore he is

entitled to recover under EMTALA.

The argument has a surface appeal, and, indeed, the panel that

initially heard this case adopted this very approach. On reflection, we

are not convinced. 

The important point for us is that the very respect in which the

plaintiff's screening is said to be non-uniform -- failure to
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order a chest x-ray for a patient complaining of popping noises in his

chest -- is nothing more than an accusation of negligence. We accept for

purposes of this appeal from a summary judgment the proposition that

Summers in fact made this complaint, and that the doctor did not hear him,

or forgot what had been said. (There is no contention that the doctor

deliberately failed to order a chest x-ray.) This may have been medical

malpractice, but if it is also an EMTALA violation, that statute has been

converted into a federal cause of action for a vast range of claims of

medical negligence. It would almost always be possible to characterize

negligence in the screening process as non-uniform treatment, because any

hospital's screening process will presumably include a non-negligent

response to symptoms or complaints presented by a patient. To construe

EMTALA this expansively would be inconsistent with the principles and cases

set out earlier in this opinion.

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

Nash General Hospital, Inc., supra. There, the patient, Vickers, had

fallen on his head. He went to the defendant hospital's emergency room.

The physician there examined him and diagnosed him as suffering from

lacerations of the scalp. These were repaired by stitches. X-rays of the

cervical spine were taken and revealed no damage. Vickers was then

discharged. Four days later, he died. He was found to have a broken

skull, a tear in his cerebrum, and an epidural hematoma. On these facts,

the Fourth Circuit held that no EMTALA claim was stated. The allegation,

the Court thought, "ultimately present[s] [a] conventional charge[ ] of

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 to

take the actual diagnosis as a given. 
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EMTALA is implicated only when individuals who are

perceived to have the same medical condition

receive disparate treatment; it is not implicated

whenever individuals who turn out in fact to have

had the same condition receive disparate treatment.

The Act would otherwise become indistinguishable

from state malpractice law. As a result, when an

exercise in medical judgment produces a given

diagnosis, the decision to prescribe a treatment

responding to the diagnosis cannot form the basis

of an EMTALA claim of inappropriate screening. 

Id. at 144 (citation omitted).

The key phrase in this holding is "perceived to have." The

emergency-room physician is required by EMTALA to screen and treat the

patient for those conditions the physician perceives the patient to have.

So here, the physician, we must assume through inadvertence 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 chest xray. Summers did receive substantial medical treatment. It was not

perfect, perhaps negligent, but he was treated no differently from any

other patient perceived to have the same condition. 

Correa v. Hospital San Francisco, supra, is also persuasive. The

case is essentially one of failure to screen a patient at all, and the

Court upheld a jury verdict for the patient's survivors. In the course of

its opinion, though, the Court carefully explains the limited scope of

EMTALA:

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

medical malpractice . . .. Therefore, a refusal to

follow regular screening procedures in a particular

instance contravenes the statute, . . . but faulty

screening, in a particular case, as opposed to

disparate screening or refusing to screen at all,

does
 In 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 reasoning of

the Fourth Circuit's later opinion in Vickers, which analyzes

explicitly the problems of interpreting EMTALA that we have

discussed in this opinion, more persuasive.

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not contravene the statute.

69 F.3d at 1192-93. The case now before is, at most, one of "faulty

screening." We agree with the First Circuit that such a claim does not

come within EMTALA.

In sum, we hold that instances of "dumping," or improper screening

of patients for a discriminatory reason, or failure to screen at all, or

screening a patient differently from other patients perceived to have the

same condition, all are actionable under EMTALA. But instances of

negligence in the screening or diagnostic process, or of mere faulty

screening, are not. The District Court was therefore correct to dismiss

Summers's claim that the failure to give him a chest x-ray violated

EMTALA.4

IV.

Plaintiff also advances, though with less emphasis, three other

theories of EMTALA violation. We shall now discuss each of them in turn.

1. It is claimed that the hospital had no written screening

procedures, and that this omission, in and of itself, is a violation of the

screening provision of EMTALA, 42 U.S.C. § 1395dd(a). The accusation may

be unfair as a matter of fact. Apparently there was no single piece of

paper or manual captioned "Emergency Room Screening Procedures," but there

were a number of forms routinely used by emergency-room personnel, and the

practice
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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. It

says nothing about written procedures. 

2. A violation of the same provision is claimed with respect to the

taking of Summers's medical history. Part of the hospital's regular

screening procedure, it is argued, is to take a complete and accurate

medical history. This was not done in Mr. Summers's case, it is said.

Plaintiff argues that "an adequate medical history would have consisted of

knowing whether or not the patient was unconscious, how far he had fallen,

what he had fallen on, the time he had fallen with reference to when he was

being treated, and whether he had taken any pain medication from the time

of the injury until time seen in the emergency room . . .. Appellee's

personnel made none of these inquiries or findings during the emergency

room examination." Brief for Appellant 9. A partial answer to this

contention is that a good deal of the information mentioned had already

been obtained by the emergency medical technicians who transported Summers

to the hospital in an ambulance. In addition, we cannot see that any of

these alleged omissions has any particular connection to the failure to

discover the broken rib and sternum. And most basically, this sort of

omission is the same kind of faulty-screening or negligent-screening theory

that we have previously rejected. 

3. Finally, Summers makes a claim under another provision of EMTALA,

42 U.S.C. § 1395dd(b)(1). This portion of the statute provides, in

pertinent part, as follows: 

 If any individual . . . comes to a hospital

and the hospital determines that the individual has

an emergency medical condition, the hospital must

provide . . . (A) . . . for such further medical

examination and such treatment as may be required

to stabilize the medical condition . . .. 
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The claim is that the hospital, before discharging Summers, did not

take proper steps to stabilize his condition. This claim must fail

because, under the express wording of the statute, this portion of EMTALA

applies only if "the hospital determines that the individual has an

emergency medical condition . . ." (emphasis supplied). Here, the hospital

believed Summers was suffering from muscle spasms, not an emergency medical

condition. The duty to stabilize therefore never arose. A hospital must

have had actual knowledge of the individual's unstabilized emergency

medical condition if a claim under § 1395dd(c) is to succeed. Vickers v.

Nash General Hospital, Inc., supra, 78 F.3d at 145; 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 opinion, we believe the District Court

acted correctly in granting the defendant's motion for summary judgment on

Mr. Summers's claims under EMTALA. The judgment of the District Court is

therefore

Affirmed.

HEANEY, Circuit Judge, with whom McMILLIAN, Circuit Judge, joins,

dissenting.

In affirming the dismissal of Summers' claim, the majority assumes

facts against Summers' position and significantly limits the scope of the

statute. Under EMTALA, as plainly written, an individual who suffers harm

as a direct result of a hospital emergency room's failure to follow

appropriate medical screening procedures has a cause 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 Center

Arkadelphia, 69
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F.3d 902 (8th Cir. 1995), I believe that Summers' claim presents a genuine

issue of material fact that the district court should have permitted to go

to the jury. Thus, I respectfully dissent.

I.

It has never been my position that EMTALA establishes a vast range

of claims for medical negligence. EMTALA has a much more limited

application than state malpractice law: it applies only to emergency rooms

of hospitals that have provider agreements under the Medicare program.

EMTALA also does not establish a national standard of care. Rather, it

requires hospitals to develop screening procedures to detect emergency

medical conditions. As the majority recognizes, the statute does not

mandate that the procedures be written and a hospital may make its

procedures as detailed or as general as it sees fit. It is the hospital's

obligation, however, to follow its established screening procedures for all

patients who present with complaints to the emergency room. Failure to do

so constitutes a prima facie violation of the federal statute. The more

a hospital's established procedures are unwritten and loosely-defined--or

essentially equivalent 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 applicable

to Summers' complaint is Dr. Ferrell's deposition testimony that had

Summers complained of pain in the sternum or pain in the ribs, he would

have x-rayed those regions. (R. 149.) As the majority notes, 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. Maj. Op., supra at 4. The majority, considering the facts

in a light most favorable to the non-moving party, accepts as true that

Summers complained to the doctor about his chest pains and throbbing chest.

Baptist even concedes this point. The majority assumes, however,
 The only notable factual difference is that Power involved a 1

patient who most likely was unable to pay for her care. She was

unemployed and had no health insurance. 42 F.3d at 854. Like 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 finds the

Fourth Circuit's later opinion more persuasive. See Vickers v.

Nash General Hospital, Inc., 78 F.3d 139 (4th Cir. 1996). In

Vickers,

the Fourth Circuit does not discuss Power and relies heavily on the

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that the physician:

through inadvertence 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 chest x-ray. Summers did receive substantial medical

treatment.

Maj. Op., supra at 11. 

With these few assumptions, the majority effectively usurps the role

of the jury and makes the factual findings necessary to dismiss Summers'

claim as one of mere negligence. It was for the jury, not the district

court or this court, to determine the relative credibility of the parties

and what occurred in the emergency room that day. We should not assume

that the doctor did not hear Summers or forgot about his complaints. Nor

should we assume that it was the physician's medical judgment that prompted

his failure to give Summers a chest x-ray. It is possible that the doctor

heard Summers' complaints and, for no legitimate reason, failed to do

anything about them. That alternative would establish the essentials of

an EMTALA cause of action.

As the majority recognizes, Summers' claim is factually similar to

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 award of damages 1

under EMTALA. In Power, the plaintiff 2
dissenting opinion from our original panel decision. Id. at 143-

144.

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was examined in the emergency room by two nurses and a doctor and was given

various tests. Id. at 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 was a necessary component of an appropriate medical screening

examination for a patient who presented at the emergency room with Power's

symptoms. Id. The Fourth Circuit determined that Power presented evidence

from which a jury could conclude she was treated differently from other

patients and that the hospital did not apply its standard screening

procedures uniformly. Id. at 856. Similarly, Summers presented sufficient

evidence of an EMTALA violation for the district court to permit his claim

to go to the jury. 

II.

The majority's inappropriate resolution of this appeal from a grant

of summary judgment is driven by its fear of giving EMTALA too "expansive"

an interpretation such that it would apply in situations traditionally

covered only by state malpractice law. Not only is this fear unwarranted,

it cannot justify significantly altering the plain language of the statute.

The statute clearly states that an individual has a cause of action

against a hospital whenever the hospital's emergency room personnel fails

to provide an appropriate medical screening examination and the individual

is harmed as a direct result of that failure. 42 U.S.C. §§ 1395dd(a),

(d)(2)(A). The personal harm
 The statute is not to be read so strictly as to preclude a

3

medical judgment defense on the part of the hospital, however. The

Fourth Circuit in Power, 42 F.3d at 858, recognized that the

application of a screening procedure necessarily requires the

exercise of medical training and judgment. The court set out a

framework for EMTALA litigation to address those considerations.

Id. at 858. Once a plaintiff makes a threshold showing of

differential treatment, the hospital may offer rebuttal evidence by

demonstrating either that the patient was accorded the same level

of treatment that all other patients receive, or that a test or

procedure was not given because the physician did not believe that

the test was reasonable or necessary under the particular

circumstances. Id. The plaintiff then has the opportunity to

challenge the physicians' medical judgment through her own expert

testimony. Id.

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provision of the statute does not require a plaintiff to prove the

hospital's intent in violating a statutory requirement, but rather permits

recovery for all violations, regardless of the hospital's motivation. In

contrast, the statute provides for a civil money penalty against a hospital

for a negligent violation of a statutory requirement. § 1395dd(d)(1)(A).

This distinction--the explicit negligence requirement for a civil penalty--

reinforces 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 an

appropriate screening examination. 

3

 

The majority gives lip service to following the literal language of

the statute by not requiring proof of bias on the part of the hospital.

Yet its strained definition of "appropriate," (i.e., "uniform" or that

which would be given to a similarly situated patient) effectively limits

the statute's application to only those cases that involve bias or

discrimination. I see no way for a plaintiff to prove non-uniform or

disparate treatment without evidence of the hospital's bias against a

particular group to which he belongs. In this respect, our court is

following the lead of almost every circuit that has examined this issue.

While the Sixth Circuit is the only circuit that admits to requiring bias

evidence
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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 evidence of bias. See Correa

v. Hosp. San Francisco, 69 F.3d 1184, 1189 (1st Cir. 1995) (affirming jury

verdict for plaintiff where "datum suggesting [hospital] tried to shunt

[patient] as soon as it scrutinized her insurance 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 uninsured

plaintiff).

In light of Congress' intent to address patient "dumping" in enacting

EMTALA, the majority is understandably frustrated by the plain language of

the statute. Its limitation of the statute's application perhaps even

meets Congress' objective better than the law enacted by Congress. It is

not our role, however, to re-draft the statute and to alter its plain

language. See Vickers v. Nash General Hosp., Inc., 78 F.3d 139, 146 (4th

Cir. 1996) (Ervin, J., dissenting) ("Regardless of what we divine the

congressional intent to have been, the statute is perfectly clear about

what a plaintiff must allege in order to state a claim."). 

Under the statute as written, credible allegations that a hospital

has failed to follow its own established screening procedures in the

treatment of a particular patient constitute a threshold showing of an

EMTALA violation. Summers has made adequate allegations to survive summary

judgment. Whether the doctor acted within the parameters of a hospital's

loose, unwritten screening procedures is a factual question to be

determined by the jury. I refuse to assume facts against Summers' position

in an effort to limit EMTALA claims generally. Thus, I adhere to my

original position and would reverse the district court's grant of summary

judgment in this case. 
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A true copy.

Attest:

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