Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. C06-02456
NEEDHAM, J.
Loreen H. Jace and Matthew Jace, by and through his guardian ad litem Loreen H. Jace, appeal from a judgment entered after the trial court granted the summary judgment motion of respondents Contra Costa County and Contra Costa County Regional Medical Center (Medical Center). Appellants contend there was a triable issue of material fact that Contra Costa and its hospital were guilty of “patient dumping” in violation of the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd, and in particular that respondents failed to conduct an appropriate medical screening examination before discharging appellants’ decedent, David Jace. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
Appellants Loreen Jace and Matthew Jace, the surviving widow and minor child of David Jace, filed a lawsuit against Contra Costa County and Medical Center in December 2006, after David Jace (Jace) died from a self-inflicted gunshot wound days after being discharged from Medical Center.
Appellants’ third amended complaint alleged causes of action for wrongful death by negligence, medical malpractice, and violation of EMTALA. The EMTALA claim asserted that, because of Jace’s uninsured status and inability to pay medical expenses, Medical Center performed a medical screening that fell short of its own regulations and EMTALA requirements before discharging him. As a result, appellants alleged, Jace committed suicide.
After the parties conducted discovery, respondents filed a motion for summary judgment or, in the alternative, summary adjudication. We set forth the pertinent underlying events based on the parties’ separate statements of material facts, noting disputed factual issues where germane to the appeal.
A. Undisputed Material Facts
On November 26, 2005, Jace attempted to commit suicide by carbon monoxide poisoning but discontinued the attempt when observed by neighbors. Jace’s brother-in-law persuaded him to go to the psychiatric emergency department at the John George Psychiatric Pavilion (George Psychiatric) in Alameda County, where he requested voluntary admission at approximately 9:30 p.m. Jace was placed on a “5150 hold.” (See Welf. & Inst. Code, § 5150 [authorizing 72-hour involuntary detention at a qualifying treatment and evaluation facility for a person who, as a result of mental disorder, is a danger to self or others or is gravely disabled].)
1. George Psychiatric Evaluation
According to its medical records, George Psychiatric conducted a psychiatric evaluation of Jace when he was at the facility from November 26 to November 29. The records note his suicide attempt and state that Jace appeared calm and cooperative when he arrived at George Psychiatric. Jace was diagnosed with a major depressive disorder and was considered to be suicidal, a danger to himself, and lacking insight into his psychological illness. At times during his stay at George Psychiatric he was deemed gravely disabled, bizarre and irrational. He was given a Global Assessment of Function (GAF) score of 20 out of 100, which George Psychiatric psychiatrist Dr. Joshua Niclas described in deposition testimony as raising “serious concerns” and which would lead one to be “highly concerned in ever sending somebody out the door.” Dr. Niclas believed that Jace needed ongoing acute care in a locked setting. George Psychiatric’s exit disposition form stated that Jace was not a danger to others or gravely disabled, but a danger to himself. Entries on November 29 noted, however, that Jace displayed no sign of self-harm, appeared calm and cooperative, and denied suicidal ideation.
2. Transfer of Jace to Medical Center and Medical Center Evaluation
Because Jace appeared to be uninsured and was a resident of Contra Costa County, Dr. Niclas arranged with Dr. Herbert Korpell of Medical Center for Jace to be transferred from George Psychiatric to Medical Center. Dr. Niclas testified in deposition that, if Jace had not been accepted for transfer by Medical Center, Dr. Niclas would have ensured that Jace received care from George Psychiatric.
Jace arrived at Medical Center (specifically, the Contra Costa County Psychiatric Emergency Services unit (PES)) by ambulance on November 29, 2005, at 1:30 p.m., accompanied by certain medical records from George Psychiatric. Dr. Korpell, who was at the nursing station when Jace arrived, understood that his facility was going to provide Jace its usual psychiatric emergency evaluation and treatment.
In his deposition, Dr. Korpell explained Medical Center’s general procedure upon receiving the transfer of a patient from another psychiatric facility. Initially, the patient is brought to the nursing station for intake, in which nurses perform a mental status and brief physical examination, and interview the patient in order to fill out a form entitled “Initial Nursing Assessment.” The patient is next evaluated by a therapist. Finally, the on-duty psychiatrist reviews the case and performs his own assessment. If the patient is discharged, nurses are involved in the discharge procedure.
Janet Frankhouser, R.N., a psychiatric nurse employed by Medical Center for over 17 years, performed the initial intake on Jace. The nursing intake, Frankhouser explained, is a tool for gathering information that the nurse will provide to the therapist and doctor. The Initial Nursing Assessment form seeks information such as where the patient came from, how they got there, medical issues, medication issues, any substance abuse issues, and whether the patient at that moment feels like harming himself or others. The Initial Nursing Assessment form does not request insurance information.
Nurse Frankhouser explained in deposition that, when a patient arrives by ambulance, he or she is routinely brought to the PES unit by the ambulance personnel, who hand over paperwork and take the patient off of the gurney. The initial intake is begun by an L.V.N. (licensed vocational nurse) – in this case, John Higgins. A clerk enters the room, gathers information needed for registration, and leaves. The intake interview is then completed and cosigned by a nurse – in this case, Frankhouser. The nursing staff then presents the intake to the therapist (here, Bruce Conroy) and the doctor (here, Dr. Korpell). Usually, any information the therapist or doctor has gathered from another hospital or a previous chart will be discussed. Routinely, if a patient is on a 5150 hold, the L.V.N. or R.N. who performs the initial intake will have a copy of the paperwork.
Appellants objected to the undisputed material facts as to Medical Center’s purported routine on the ground that a routine was not established or a routine was irrelevant. As discussed post, we disagree with appellants’ contentions.
As to Jace, the Initial Nursing Assessment form indicated he had no suicidal ideations and thoughts, past suicide attempts, potential for violence, past history of violence or AWOL potential, and he agreed not to leave the facility. The form stated that Jace denied any alteration in perception or thought processes, and that his affect and mood were appropriate. Nursing Intervention & Progress Notes also indicated that Jace was calm, cooperative, and denied suicidal ideation.
After the intake nurse’s interview, at 2:10 p.m. Jace met with Bruce Conroy, the marriage and family therapist (MFT) on duty. Conroy, employed by Medical Center’s Health Services Department for 30 years and a MFT for over 20 years, interviewed Jace and completed a Psychiatric Emergency Services Emergency Assessment (Emergency Assessment) form and an Instructions and Disposition form. In his deposition, Conroy testified that his assessments routinely lasted between 20 and 40 minutes, depending on the patient’s presentation.
As to the Emergency Assessment form, Conroy explained that clerical staff entered information on the form pertaining to the patient’s arrival time, insurance information, gender, age, support persons, and mental health providers. On Jace’s form, these entries included a null sign (zero with a slash) in a space next to “Payor/ Insurance” and on another line inquiring about the patient’s insurance.
Conroy completed the portions of the Emergency Assessment form pertaining to the patient’s presenting problem, psychiatric history, and psychosocial information, whether the patient was a danger to self or others, the mental status examination, his initial diagnostic impression, any collateral contacts, and his findings and plan.
In his description of Jace’s presenting problem, Conroy noted, among other things, “see write-up from [George Psychiatric].” In deposition, Conroy explained that he routinely reviewed the write-up from the transferring hospital before evaluating the patient. Although Conroy did not explicitly state on the form that he actually reviewed the George Psychiatric records, the Emergency Assessment form does not specifically inquire whether records were reviewed.
Conroy provided information on the Emergency Assessment form regarding Jace’s background and psychological history, his arrival from George Psychiatric on a 5150 hold, and an assessment of Jace’s dangerousness to others. In the portion of the form recording the mental status examination, Conroy noted that, based on his questioning of Jace, Jace had no suicidal, homicidal, auditory, visual or delusional ideation. Jace appeared oriented as to the day, place, time and year, his behavior was cooperative, his speech was clear, his mood was calm, his affect was within normal limits, and his thought process was clear. Conroy further noted that Jace’s “Insight/Judgment” was “fair-varie[d].”
Under the heading of “Collateral Contact” on the second page of the Emergency Assessment form, Conroy made the following entry: “[Patient’s] wife – Loranne – she has no reservations to [patient] being [discharged].” Conroy explained in deposition that this reflected a telephone conversation he had with Jace’s wife after he interviewed Jace.
Appellants contend that Contra Costa County has no record of this call, that Jace’s wife denies receiving such a call, and that she never would have made such a statement because of her concern for Jace. When asked about the entry in her deposition, Loreen stated she did not remember such a call, but she did not deny it took place.
As to his findings and plan, Conroy concluded that Jace’s “presentation does not warrant further [psychiatric hospitalization].” (Underscoring in original.) Conroy recommended that Jace be discharged to the care of his wife, whom Conroy again noted had no concerns with Jace’s discharge. Conroy testified that he recommended Jace’s release because Jace did not present to be an imminent danger to himself or anyone else, based on Conroy’s review of the records, his assessment of Jace, and the telephone conversation with Jace’s wife. In light of Jace’s response to questions and his general affect or presentation, Conroy concluded, Jace was not threatening to harm himself or anyone else at the time. Although Conroy had no independent recollection of his care of Jace, he testified that he ordinarily would have conferred with the psychiatrist on duty in regard to his findings and plan.
After meeting with Conroy, Jace met with Dr. Korpell at about 2:30 p.m. Dr. Korpell made an entry on the Emergency Assessment form at 2:40 p.m., indicating he had interviewed Jace, apparently for about ten minutes. Dr. Korpell recorded Jace’s discharge, stating that Jace was not suicidal, homicidal or gravely disabled, and estimating his GAF at 57. Dr. Korpell testified that he ordered Jace released from the 5150 hold, “because he did not qualify to be held any longer against his will.” In Dr. Korpell’s opinion, Jace had been provided an adequate medical screening.
Dr. Korpell noted it would be standard procedure for a patient to arrive from another psychiatric facility with parts of the prior treating facility’s medical chart, and as a matter of custom and practice, Dr. Korpell reviewed the records accompanying a patient. Dr. Korpell testified that he had no recollection of Jace’s case, including the reasons for releasing Jace without treatment or stabilization.
Jace was discharged at about 2:50 p.m. and, in the Instructions and Disposition form filled out by Conroy, was instructed to “follow-up with established resources as needed” and to “follow therapist’s instructions.” Jace telephoned his wife, told her he had been released, and asked her to pick him up. She subsequently picked him up as he walked along the street from the hospital.
Three days later, Jace was found dead in an Oakland motel room, having fatally shot himself in the head.
3. Medical Center Policies
Dr. Korpell understood from Medical Center’s policies in 2005 that Medical Center was to serve Contra Costa County residents whether they had insurance or not. He confirmed that Medical Center served patients who had no insurance.
Medical Center Policy 561, entitled “MEDICAL SCREENING EXAMINATION,” states that patients with a potential medical emergency at that facility are to be provided with a medical screening examination to determine if an emergency medical condition exists. The policy adopts federal guidelines defining “emergency medical condition” to include “psychiatric disturbances... such that the absence of immediate medical attention could reasonably be expected to result in placing the health of the individual... in serious jeopardy....” Under the policy, the medical screening examination includes obtaining an appropriate history of acute illness and identifying issues such as psychological status that may indicate an emergency. Policy 561 further states: “There shall be no delay in [a] medical screening examination or treatment in order to inquire about the individual’s method of payment or insurance status.”
Deposition testimony indicated that the medical screening examination includes, among other things, a review of medical records received from another psychiatric facility and an evaluation of such records pertinent to a diagnosis.
Scott L. Weingold, M.D., chief psychiatrist for Contra Costa County’s PES in 2005, testified that part of Policy 561’s purpose was to ensure that uninsured patients receive the same screening examination as insured patients. What constitutes an appropriate screening under the policy, he noted, depends upon the patient and the condition at presentation.
Medical Center’s Policy 560 states that emergency services and care will be provided to “any person who []presents at Contra Costa Regional Medical Center [f]or services, examination or treatment within the capability of the facility.” The policy also provides: “Emergency service and care means an appropriate medical screening examination and evaluation by an emergency physician or other practitioner qualified to determine whether the patient has an emergency medical condition. If any emergency medical condition exists, emergency services and care also includes the care [and] treatment... by a physician necessary to stabilize the emergency medical condition within the capability of the hospital.” In addition, Policy 560 decreed that, except in specified instances, no individual requesting services or care may be discharged from the hospital before emergency services and care are provided. The policy further states: “Emergency services and care shall be rendered without first questioning the individual or any other person as to their ability to pay therefor[] and shall not be delayed in order to inquire into the individual’s method of payment or insurance status.”
4. Subsequent Medical Center E-mail Regarding Admission of Uninsureds
Over three months after Jace’s death, Dr. Weingold sent personnel an e-mail dated March 23, 2006, regarding “referring [patients] for admission.” The e-mail reads in part: “Mental Health Admin has confirmed the following order of preference when referring PES patients for psychiatric hospitalization. [¶] These references can (and should) be over-ridden when there is significant clinical reason to do otherwise, but the chart notes must support such a decision.” The e-mail then lists categories of patients, by age and type of insurance, and lists by number various hospitals, including [Medical Center]. The e-mail then states: “THIS IS A CHANGE FROM PRACTICES OF ‘YORE. [¶] [MEDICAL CENTER] IS NOT THE ADMISSION HOSPITAL OF CHOICE FOR THOSE WITH NO INSURANCE. ADULTS WITH NO INSURANCE SHOULD BE REFERRED TO OTHER HOSPITALS UNLESS [undecipherable] CLINICAL REASON TO ADMIT TO [MEDICAL CENTER] OR THERE ARE NO BEDS AT ANY OF THE CONTRACTED HOSPITALS.” (Capital letters in original.) Appellants contended this e-mail reflects a policy to discourage the admission of uninsureds; respondents contended the e-mail reflects a change of policy after Jace’s death and is therefore irrelevant.
B. Trial Court’s Ruling
In opposing summary judgment, appellants argued that respondents’ evidence consisted of little more than hospital records and the testimony of witnesses regarding the usual routine for the initial examination of patients, and the witnesses largely did not recall Jace’s particular case. Appellants further argued that Medical Center had failed to produce any direct evidence that anyone at Medical Center read any of the George Psychiatric records accompanying Jace before he was discharged. Appellants contended there was a triable issue of material fact precluding summary judgment on their EMTALA claim.
Appellants conceded that their causes of action based on negligence and medical malpractice are barred by immunity statutes. The grant of the summary judgment motion as to those causes of action is not at issue in this appeal.
After a tentative ruling and hearing, the trial court granted respondents’ summary judgment motion. Judgment was entered in favor of respondents, and this appeal followed.
II. DISCUSSION
Appellants contend the trial court erred in granting the summary judgment motion, because there was a triable issue of material fact as to Medical Center’s liability under EMTALA.
In reviewing the grant of summary judgment, we conduct an independent review to determine whether there is a triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860; Buss v. Superior Court (1997) 16 Cal.4th 35, 60; Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1485.) We construe the moving party’s evidence strictly, and the non-moving party’s evidence liberally, in determining whether there is a triable issue. (See D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20; Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72 (Thomas).)
A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue. (See Code Civ. Proc., § 437c, subd. (p)(2); Thomas, supra, 98 Cal.App.4th at p. 72.)
A. EMTALA
Congress enacted EMTALA as part of the Comprehensive Omnibus Budget Reconciliation Act of 1986 (COBRA), 42 U.S.C. § 1395dd, to discourage hospitals from refusing to treat indigent or uninsured individuals in medical emergencies – a practice known as “patient dumping.” (Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 108-109 & fn. 2 (Barris); Hongsathavij v. Queen of Angels etc. Medical Center (1998) 62 Cal.App.4th 1123, 1130 fn. 3.) A hospital that has entered into a Medicare provider agreement is subject to civil liability if it does not comply with EMTALA. (42 U.S.C. § 1395dd(d)(2)(A); Barris, supra, 20 Cal.4th at p. 109.)
Appellants acknowledge that, if they pursued a claim under state law, it would be barred by immunity provisions including Government Code sections 820.2 and 856. They argue that the federal EMTALA preempts state immunity statutes. (See 42 U.S.C. § 1395dd(f); Root v. New Liberty Hospital Dist. (2000) 209 F.3d 1068, 1070.) Respondents contend there is no case specifically holding that the state immunity statutes do not apply to EMTALA, but they appear to stop short of contending that appellants’ claim is barred by those statutes. We need not and do not reach the issue, since the appeal is resolved on other grounds.
Under EMTALA, a hospital has two duties: (1) it must provide any individual who comes to the emergency department requesting examination or treatment with “an appropriate medical screening examination within the capability of the hospital’s emergency department,” in order to determine whether the individual has an “emergency medical condition” (manifested by acute symptoms of sufficient severity such that the absence of medical attention could reasonably be expected to result in, e.g, placing the individual’s health in serious jeopardy); (2) if the hospital determines that the individual has an emergency medical condition, it must provide, within the staff and facilities available at the hospital, for “such treatment as may be required to stabilize the medical condition.” (42 U.S.C. § 1395dd(a), (b), (c), (e)(1)(A); see Barris, supra, 20 Cal.4th at p. 109.)
At issue in this case is the first EMTALA requirement: whether Medical Center provided “an appropriate medical screening examination within the capability of the hospital’s emergency department” to determine whether an emergency medical condition existed. (42 U.S.C. § 1395dd(a).) If it provided an appropriate screening examination, the hospital’s determination that Jace had no emergency medical condition relieved it of any treatment obligation under EMTALA’s second requirement.
If a hospital provides appropriate medical screening, it is not liable under EMTALA if, despite the screening, it negligently failed to uncover the patient’s emergency medical condition. (Gardner v. Elmore Community Hosp. (M.D. Ala. 1999) 64 F.Supp.2d 1195, 1202. See Barris, supra, 20 Cal.4th at p. 111 fn. 4.) EMTALA is not a negligence or malpractice statute. (Repp v. Anadarko Mun. Hosp. (10th Cir. 1994) 43 F.3d 519, 522 (Repp).) Nor does EMTALA impose on hospitals a national standard of care in screening patients. (Eberhardt v. City of Los Angeles (9th Cir. 1995) 62 F.3d 1253, 1258.)
There are two components to the required “appropriate medical screening examination.” (42 U.S.C. § 1395dd(a).) First, the hospital must perform a screening that is reasonably calculated to uncover the existence of an emergency medical condition. Second, the hospital must provide the same level of screening uniformly to all individuals who present substantially similar complaints – in other words, as relevant here, uninsured persons must be given the same screening as insured persons. (Correa v. Hospital San Francisco (1st Cir. 1995) 69 F.3d 1184, 1192 [“The essence of this requirement is that there be some screening procedure, and that it be administered even-handedly”]; Gatewood v. Washington Healthcare Corp. (D.C. Cir. 1991) 933 F.2d 1037, 1041 [requirement met when hospital applies standard screening procedure to treatment of particular patient]; Baker v. Adventist Health, Inc. (9th Cir. 2001) 260 F.3d 987, 995 [hospital meets its obligation to provide “an appropriate medical screening” under EMTALA when it: “provides a patient with an examination comparable to the one offered to other patients presenting similar symptoms, unless the examination is so cursory that it is not ‘designed to identify acute and severe symptoms that alert the physician of the need for immediate medical attention to prevent serious bodily injury’ ”].)
If a hospital deviated from its standard screening procedures in its screening of the plaintiff, its screening may be found inadequate under EMTALA. (Repp, supra, 43 F.3d at p. 522.) However, as the court in Repp explained: “Of course, this standard does not mean that any slight deviation by a hospital from its standard screening policy violates EMTALA. Mere de minimus variations from the hospital’s standard procedures do not amount to a violation of hospital policy. To hold otherwise would impose liabilities on hospitals for purely formalistic deviations when the policy has been effectively followed.” (Repp, at p. 523; see Magruder ex rel. Magruder v. Jasper County Hosp. (N.D. Ind. 2003) 243 F.Supp.2d 886, 893 [hospital’s failure to comply with its policy to weigh child with diaper removed, which would have assessed child’s groin area, was de minimus in view of emergency room physician’s testimony that during his examination he fully assessed the child’s groin area].)
It is the plaintiff’s burden to show that the hospital treated the individual differently from other patients. (Marshall v. East Carroll Parish Hosp. Serv. Dist. (5th Cir. 1998) 134 F.3d 319, 323-324.)
B. Respondents Produced Evidence to Demonstrate Compliance with EMTALA
As the moving parties, respondents produced evidence from which a reasonable trier of fact could conclude that (1) the screening was at least reasonably calculated to uncover the existence of an emergency medical condition and (2) it was the same level of screening received by all patients (insured or not) who present substantially similar complaints.
Dr. Korpell, nurse Frankhouse, and MFT Conroy testified that Medical Center’s standard procedure for medical emergency screening consisted of the initial intake conducted by a nurse using the Initial Nursing Assessment form, the evaluation of the individual by a therapist using the Emergency Assessment form, and a review by the on-duty psychiatrist. Medical Center records demonstrated that this routine procedure was followed in Jace’s case: nurses performed the initial intake and filled out the Initial Nursing Assessment form; MFT Conroy performed an examination, interviewed Jace, and elicited information for the Emergency Assessment form – recording matters such as Jace’s presenting problem, psychiatric history, mental status, dangerousness to self and others, ideation, orientation, behavior, speech, mood, affect, thought process, and judgment; and Dr. Korpell interviewed Jace and reviewed the case before Jace was discharged. The screening Jace received was therefore consistent with Medical Center’s standard or routine procedure for all individuals, and it was documented on the standard forms Medical Center used for the screening process. Furthermore, Dr. Korpell testified that he expected Medical Center to conduct the usual psychiatric emergency screening when Jace arrived, and that the screening Jace received was indeed adequate. From this evidence it can be inferred that the screening of Jace was reasonably calculated to uncover the existence of an emergency medical condition, and it was the same level of screening that all individuals presenting substantially a similar condition as Jace would receive at Medical Center.
Appellants complain that respondents did not present direct testimonial evidence to establish that Medical Center’s routine procedure was performed in Jace’s case, noting that Dr. Korpell, Conroy and Frankhouse had virtually no independent recollection of Jace’s visit and did not testify affirmatively that Medical Center’s procedure was followed. However, no such testimony was required. The witnesses testified to Medical Center’s routine procedure, and Medical Center’s medical records indicated the nature of the screening performed on Jace. This evidence was sufficient to give rise to an inference that the screening of Jace complied with Medical Center’s routine procedure, with or without additional testimony from the witnesses that they specifically remembered screening Jace or that the screening he received complied with the routine procedure.
Respondents’ evidence was sufficient to shift the burden to appellants to raise a triable issue of material fact.
C. Appellants Failed to Demonstrate a Triable Issue of Material Fact
Appellants contend they raised a triable issue of fact as to whether Medical Center provided Jace with an appropriate medical screening because (1) an entry on one of the Medical Center forms noted that Jace had no insurance; (2) there was no direct evidence that Medical Center personnel reviewed the George Psychiatric records; and (3) Weingold’s e-mail, sent months after Jace was discharged, discouraged admission of uninsured individuals. While we resolve all conflicts in the evidence and draw all reasonable inferences in appellants’ favor, the inferences appellants urge us to draw from the evidence are just not reasonable.
1. Notation Regarding Lack of Insurance
Appellants refer us to evidence purportedly showing that the Medical Center “intake nurse” noted on an “intake form” that Jace had no insurance or ability to pay. This evidence, however, does not create a triable issue of material fact.
In the first place, appellants misstate the evidence. The notation regarding Jace’s lack of insurance was on the Emergency Assessment form. There was no evidence, despite appellants’ resolute insistence to the contrary, that the notation was made by the “intake nurse.” To the contrary, the Emergency Assessment form was not filled out by the intake nurse, but by a clerical worker and MFT Conroy. According to Conroy, information regarding insurance was usually entered by the clerk, and nurse Frankhouser testified that the clerk would enter the room during the initial intake, gather information for registration, and leave. The proper question, therefore, is whether evidence that a Medical Center clerk inserted information about Jace’s insurance status could give rise to a triable issue of fact material to EMTALA.
EMTALA does not prohibit inquiry into the insurance status of an individual. Rather, 42 U.S.C. 1395dd(h) states: “A participating hospital may not delay provision of an appropriate medical screening examination required under subsection (a) of this section... in order to inquire about the individual’s method of payment or insurance status.” (Italics added.) That does not mean a hospital cannot ask about insurance, only that it cannot delay provision of the screening examination. (Parker v. Salina Regional Health Center, Inc. (D. Kansas 2006) 463 F.Supp.2d 1263, 1268.) There is no evidence that Jace’s screening examination was delayed to find out if he had insurance.
Appellants contend that the notation regarding lack of insurance indicated a violation of Medical Center’s own rules, including Policy 560 and 561, which presumably would suggest that the screening was not “appropriate” under EMTALA. Like EMTALA, however, Policy 560 and 561 provide that the medical screening examination and treatment shall not be delayed in order to inquire into the individual’s method of payment or insurance status. Again, there is no evidence that Jace’s screening examination was delayed to find out if he had insurance.
Policy 560 does go a bit further than Policy 561 or EMTALA, stating also that emergency services and care “shall be rendered without first questioning the individual or any other person as to their ability to pay.” (Italics added.) Respondents point out that there is no direct evidence that anyone at Medical Center actually questioned Jace or anyone else concerning his insurance status or ability to pay for services, contending that the clerk may have obtained the information from George Psychiatric’s records. On the other hand, there is no direct evidence that the Medical Center clerk made the entries on the Emergency Assessment form by referring to the George Psychiatric records, as opposed to questioning Jace. Arguably, there is a factual dispute as to whether someone at Medical Center asked Jace or someone else about Jace’s ability to pay.
This assumed factual dispute, however, is not material to whether there was an EMTALA violation, and is thus insufficient to preclude summary judgment. Even if the clerk did question Jace about his ability to pay, there is no evidence this inquiry was made before Medical Center began its screening of Jace, so there is no evidence that Policy 560 was violated. Moreover, even if Medical Center violated Policy 560 by asking about insurance before or while the nursing staff was conducting the initial intake, the violation of the policy was de minimus and therefore provides no basis for inferring that Medical Center violated EMTALA. (Repp, supra, 43 F.3d at p. 522-523.) The discrepancy between Medical Center’s policy (prohibiting questioning about an individual’s ability to pay before emergency services and care), and its purported questioning of Jace, did not indicate that Jace received a medical screening that was different than any other person received, let alone that Medical Center treated uninsured persons differently than insured persons. After all, asking an individual whether or not he or she has an ability to pay for services could not in itself constitute disparate treatment on the basis of indigency, since the inquiry is made before it is ascertained that the individual is unable to pay. Indeed, the fact that there were questions toward the top of the Emergency Assessment form concerning ability to pay suggests that the inquiry was made of all persons, not just Jace. In context, far from there being a triable issue of material fact, there is confirmation that Jace received the same medical screening received by every other individual presenting at Medical Center’s PES unit, in a manner that did not abrogate EMTALA.
At bottom, no reasonable juror would conclude, based on a clerk’s notation regarding Jace’s lack of insurance, that the screening was inadequate or something other than what was uniformly provided to all persons who appeared at Medical Center’s PES unit.
2. Absence of Express Statement that George Psychiatric Records Were Reviewed
Medical Center’s policies and rules state that its medical screening procedure includes a review of patient history, and Medical Center’s personnel acknowledged that the procedure included a review of the patient’s medical records. On this basis, appellants argue there was a triable issue as to whether Medical Center followed its procedures in Jace’s case (and thereby whether it violated EMTALA), because no witness specifically recalled reviewing the records from George Psychiatric, Medical Center’s records do not contain any entry explicitly stating the records were reviewed, and the duration of Conroy’s and Dr. Korpell’s examinations precluded such review. Appellants’ argument has no merit.
As a threshold matter, respondents’ evidence was sufficient to justify the inference that Medical Center personnel reviewed the George Psychiatric records. Conroy testified that he routinely reviewed the write-up from the transferring facility before evaluating the patient. Dr. Korpell testified that he routinely reviewed everything that accompanied the patient, including the records from the transferring facility. Evidence of a routine procedure may give rise to an inference that the routine was followed in a particular instance.
Respondents rely on Evidence Code section 1105, which provides that “otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.” (See Dincau v. Tamayose (1982) 131 Cal.App.3d 780, 793-796; Tillery v. Richland (1984) 158 Cal.App.3d 957, 968-969.) Appellants counter that the evidence did not qualify as habit or custom evidence. (See Bowen v. Ryan (2008) 163 Cal.App.4th 916, 926.) Appellants further contend that Evidence Code section 1104 precludes evidence of a person’s character with respect to care or skill to prove his conduct on a particular occasion. Appellants did not file separate objections to the evidence of Medical Center’s routine in the summary judgment proceeding. In any event, appellants have not established that admission of the evidence of Medical Center’s routine or the inferences therefrom constituted error, and any such error would have been harmless anyway in light of the other evidence indicating that Medical Center reviewed the George Psychiatric records.
Moreover, other evidence confirmed the conclusion that Medical Center reviewed the records. In describing Jace’s “presenting problem” in the Emergency Assessment form, MFT Conroy wrote “see write-up from [George Psychiatric],” suggesting he reviewed the George Psychiatric records. Conroy acknowledged in his deposition that, when he spoke to Jace about his release, Conroy was aware of the George Psychiatric psychiatrist’s diagnosis that Jace had a major depressive disorder and was at serious risk of hurting himself. Again, the inference is that Conroy reviewed the George Psychiatric records.
Appellants present no evidence from which a reasonable trier of fact could draw a contrary inference. They point out that Medical Center’s records do not expressly state that George Psychiatric records were reviewed, but there is nothing to suggest that the absence of such a notation means the records were not reviewed. For example, there is no box on the Initial Nursing Assessment form or Emergency Assessment form for Medical Center personnel to indicate whether records from a transferring hospital were reviewed. Nor is there evidence that it was Medical Center’s policy or practice to note on either of those forms that records from a transferring hospital were reviewed. Given Conroy’s directive to “see write-up from [George Psychiatric],” and his testimony that he was aware of the George Psychiatric diagnosis and routinely reviewed the records of the referring hospital, it is unreasonable to conclude that he did not review the George Psychiatric write-up he explicitly referenced merely because he did not happen to add the words, “which I reviewed.”
Next, appellants point to the fact that the screening took only 30 minutes, speculating that “any meaningful study of these records would necessarily take a substantial amount of time” and Dr. Korpell’s 10-minute examination is “obviously inadequate to study these records and to examine the patient with regard to the facts and conclusions set forth in them.” (Italics in original.) There is, however, no evidence in the record to support appellants’ conclusory assertions. There is no showing, for example, that a screening which includes a review of medical records akin to the George Psychiatric records would take longer than the 30-minute screening Medical Center provided to Jace. To the contrary, the evidence that Conroy spent 20 minutes with Jace, and that he usually spent 20-40 minutes with individuals depending on the patient and presentation, suggests the time Conroy spent assessing Jace was within the range he spent assessing patients generally.
Appellants argue that the George Psychiatric records “painted an extremely alarming picture of a patient who had demonstrated suicidal impulses and exhibited psychotic, bizarre and irrational behavior, and yet was entirely in denial about his condition,” and “the critical evaluation of the decedent apparently consisted of the therapist asking him how he felt.” (Italics in original.) However, the Emergency Assessment form indicates that MFT Conroy did far more than ask Jace how he felt. Appellants presented no evidence that the screening was not reasonably calculated to discover an emergency medical condition – which is defined as manifesting acute symptoms of sufficient severity that the absence of medical care could reasonably be expected to place his health in jeopardy. (42 U.S.C. § 1395dd(e)(1)(A).)
To the extent appellants argue that Medical Center negligently failed to detect whether Jace required treatment or stabilization, their arguments are meritless because EMTALA is not a negligence statute. (E.g., Baber v. Hospital Corp. of America (4th Cir. 1992) 977 F.2d 872, 879-880.)
3. Weingold’s E-mail
Appellants insist that the evidence of the notation regarding Jace’s lack of insurance, along with Dr. Weingold’s e-mail pertaining to the admission of uninsured patients, raises an inference that Medical Center had a policy of disparate treatment toward uninsured patients in violation of EMTALA, and that Medical Center personnel therefore did not review the JPGG records and discharged Jace without the required screening. No reasonable juror would draw this conclusion.
The e-mail states that, as a “change from practices of ‘yore,” Medical Center is not the “admission hospital of choice for those with no insurance,” and that “adults with no insurance should be referred to other hospitals unless... clinical reason to admit to [Medical Center] or there are no beds at any of the contracted hospitals.” While appellants insist that the e-mail reflected an existing policy rather than a change in policy, the resolution of that dispute makes no difference. The upshot of the e-mail is that adults lacking insurance should be referred to other hospitals unless there is a clinical reason to admit to Medical Center. Jace, however, was not referred to another hospital. Therefore, if “admission” in this context includes accepting an individual for medical screening, then Jace was admitted, and the policy did not affect him. If instead “admission” refers to accepting the individual for treatment, there was no obligation under EMTALA to accept Jace for treatment, given Medical Center’s conclusion from the screening that there was no medical emergency. Accordingly, as a matter of law neither the e-mail, nor the policy it allegedly embraced, adversely affected Jace or suggested a violation of EMTALA in Jace’s screening.
Nor does common sense permit the conclusion, based on the record in this case, that Dr. Weingold’s e-mail reiterated some policy that had persuaded Medical Center personnel three months earlier to ignore Policies 560 and 561, contravene their procedures, and violate EMTALA by refusing to provide medical screening to Jace because they thought he was uninsured. No reasonable trier of fact would draw such an inference, whether viewing the e-mail in isolation or in combination with all the evidence in the record.
In the final analysis, no reasonable trier of fact would conclude, based on the evidence presented, that Medical Center failed to provide Jace with an “appropriate medical screening examination” within the meaning of EMTALA. Respondents were entitled to summary judgment.
Appellants argue that the trial court improperly resolved conflicting inferences from the evidence. Because we review the matter de novo, it is irrelevant how the trial court addressed conflicting inferences. Furthermore, appellants misconstrue the record. They contend the court improperly concluded that the entry indicating Jace’s lack of insurance could have been obtained from the George Psychiatric records, but the court actually stated: “However, there is no evidence that the clerk questioned decedent concerning his insurance as opposed to obtaining this information from John George Psychiatric Pavilion records which accompanied the patient to [Medical Center]. In addition, there is no evidence that decedent’s treatment was delayed by the fact that the clerk entered this information.” The court did not thereby resolve a disputed factual issue; it noted appellants’ failure to produce evidence and ruled that the purported factual dispute was immaterial anyway, since there was no evidence of the alleged questioning causing delay. Appellants also contend the court improperly concluded that Dr. Weingold’s e-mail reflected a change in policy rather than a reminder of an existing policy. Actually, the court stated that the e-mail “expressly indicates a change in policy” – which it did in the phrase, “THIS IS A CHANGE FROM PRACTICES OF ‘YORE” — and then observed that the e-mail was immaterial because there was “no evidence that decedent was either released or referred to another facility for the reason that he had no insurance.”
III. DISPOSITION
The judgment is affirmed.
We concur. JONES, P. J., BRUINIERS, J.
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.