Opinion
NO. CS-00-0224-EFS.
October 26, 2001
ORDER DENYING MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND SETTING SCHEDULING CONFERENCE
BEFORE THE COURT for hearing without oral argument is Defendant Othello Community Hospital's Motion to Dismiss for Lack of Subject Matter Jurisdiction, (Ct. Rec. 9). Initially, the Court heard arguments on Defendant's Motion on December 21, 2000. Plaintiffs were represented by Pat Fannin, and Jim King appeared for Defendant Othello Community Hospital, ("Othello"). The Court took the motion under advisement, and granted Plaintiff's request to pursue additional discovery under Fed.R.Civ.P. 56(f), (Ct. Rec. 36). On March 8, 2001, Plaintiff filed a Motion to Compel discovery, (Ct. Rec. 46), which was granted by the Court, (Ct. Rec. 58) Because of the delay caused by discovery disputes among the parties, the Court ordered additional briefing on Defendant's motion. With the benefit of additional briefing after discovery, the Court reviewed the record, considered the arguments of the parties, and is fully informed. Accordingly, for the reasons stated hereinafter, the Court DENIES Defendant's Motion.
I. FACTUAL BACKGROUND
On February 21, 1999, Barbara Finley was admitted to the Emergency Room at Othello Community Hospital. She had experienced a flare up in the gout in her ankle, and consumed some of her husband's pain cocktail containing methadone, which had been prescribed to him to treat his pain from a back injury. Mrs. Finley took 1 to 2 tablespoons, or 3 to 6 times the recommended dose for Mr. Finley, at 3:00 or 4:00 in the afternoon. After Mrs. Finley consumed the methadone, she fell asleep. Mr. Finley had difficulty awakening her, and Mrs. Finley seemed confused and disoriented, so Mr. Finley summoned an ambulance. Mrs. Finley was admitted to the Emergency Room at 7:52 p.m., approximately four hours after ingesting the medication.
On the Hospital's registration, it was noted that Mrs. Finley was unemployed, and that she would be paying for services herself. At this point, there are competing factual versions of what was known or ascertained by the Hospital. The employee who completed the intake form did not note exactly what type of drug Mrs. Finley consumed, nor did the employee record any history or lack of history Mrs. Finley had with methadone. Instead, the form only indicates that she took a tablespoon of her husband's pain medication. However, Dr. Mccluskey stated in his deposition that he knew that the drug ingested was methadone, and consulted the Physicians' Desk Reference on the drug. Initially, Mrs. Finley's blood oxygen saturation levels were measured and recorded to be 74%, and she was placed on bottled oxygen. Defendants argue that, although this level was recorded and oxygen was administered, the persons treating Mrs. Finley thought that this reading must have been a mechanical error. Soon after oxygen was administered, Mrs. Finley's blood oxygen saturation increased to 92%. Dr. McCluskey diagnosed "drug effect," but Mrs. Finley was not kept under further observation. Mrs. Finley was taken off of oxygen, and her blood oxygen levels were not retested on room air. The hospital then discharged Mrs. Finley at 8:45 p.m. without instructions.
Early in the briefing of this case, Plaintiffs made much of the fact that the hospital classified Mrs. Finley as "urgent" on the intake form, rather than "emergent," arguing that this was evidence of inadequate medical screening. The Hospital argued that this classification was evidence that the Hospital did not detect an emergency medical condition. The hospital now states that this classification has no relationship to the standard for "emergency" under EMTALA, and only helps the hospital prioritize patients actually in the emergency room.
The next morning, Mr. Finley left the house, and returning around noon, had difficulty awakening Mrs. Finley. She was re-admitted to Othello at 1:30 p.m. by ambulance, with blood oxygen saturation of 54% and responding only to painful stimuli. Mrs. Finley was transferred to another facility for treatment of post anoxic encephalopathy, which resulted in permanent neurological and cognitive damage.
II. NATURE OF CLAIMS UNDER EMTALA
Plaintiffs filed suit in this Court, against Dr. McCluskey for state law medical malpractice claims, and against Othello for violation of EMTALA, (Ct. Rec. 1). The Emergency Medical Treatment and Active Labor Act, ("EMTALA"), is commonly known as the Patient Anti-Dumping Act or Anti-Dumping Act. See 42 U.S.C. § 1395dd. EMTALA was passed in response to concerns that hospitals were "dumping" uninsured or indigent patients, "by either refusing to provide emergency medical treatment or transferring patients before their conditions were stabilized." Eberhardt v. City of Los Angeles, 62 F.3d 1253, 1255 (9th Cir. 1995). Although generated to protect the indigent, the Act by its plain language applies to all patients, regardless of ability to pay. See Brooker v. Desert Hosp. Corp., 947 F.2d 412, 414 (9th Cir. 1991).
EMTALA imposes three primary duties on Hospitals. First, when a patient comes to the emergency department of a hospital seeking treatment, "the 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." 42 U.S.C. § 1395dd(a). Second, if the hospital determines that an emergency medical condition exists, then "the hospital must provide . . . for such further medical examination and such treatment as may be required to stabilize the medical condition . . ." 42 U.S.C. § 1395dd(b) Third, the hospital may not transfer or discharge a patient without first stabilizing the condition, unless the hospital finds that transfer is appropriate as set forth in the statute. See 42 U.S.C. § 1395dd(c). In addition, transfer cannot be made under this subsection unless the benefits of transfer outweigh the risks, which must be documented in writing. See id. § 1395dd(c)(A)
Plaintiffs bring two alternative claims under EMTALA. First, Plaintiffs claim that Othello violated 42 U.S.C. § 1395dd(a), by failing to provide an appropriate medical screening examination. Within this claim, Plaintiffs argue that Defendants did not screen Mrs. Finley in a manner comparable to (A) other patients presenting with drug ingestion, and (B) other patients presenting with low blood oxygen saturation. Second, Plaintiffs claim that Othello violated EMTALA by failing to stabilize Mrs. Finley's emergency medical condition prior to her discharge on February 21, 1999.
Defendant Othello argues that Plaintiffs fail to state a claim for both EMTALA claims, that this Court consequently lacks federal subject matter jurisdiction, and should decline to hear Plaintiffs' pendent state law malpractice claim. In response, Plaintiffs put forth evidence in support of the failure to stabilize claim. Specifically, the declaration of Dr. Bronston, Plaintiffs' expert, indicates that (1) any methadone ingestion by a person unaccustomed to methadone is an emergency medical condition, and that (2) a blood oxygen saturation of 74% is itself an emergency medical condition.
For Plaintiffs' inappropriate medical screening claim, Defendants argued that under the comparative test, Plaintiffs should demonstrate that Mrs. Finley was provided with a screening that was not comparable to the screening typically provided by Othello. Plaintiffs' sought and were granted leave to engage in discovery to meet this burden. See Fed.R.Civ.P. 56(f). As a result of this discovery, the record was supplemented.
For patients presenting at Othello with drug ingestion, Plaintiffs argue that Mrs. Finley's screening was not comparable, because of eighty-five cases in the year prior to February 21, 1999, Othello ascertained the specific drug ingested in almost every case. For patients presenting with blood oxygen levels below 75%, only one out of seven was discharged without further observation or treatment. of four patients presenting with Blood oxygen levels between 76% and 85%, only one was discharged without further treatment. Only one patient presented with both drug ingestion and lowered blood oxygen levels, and that patient had lung cancer, and was "not expected to live long." (Ct. Rec. 61, Ex. 8 at 255). However, that patient was given medication to counteract the oversedation, and oxygen levels were brought to above 90% prior to discharge. During the year prior to February 21, 1999, no patients presented with methadone ingestion at Othello. Plaintiffs argue that they have stated a claim, as Mrs. Finley's screening examination was not comparable to those afforded patients presenting with similar symptoms.
For Plaintiffs' claim of failure to stabilize, Defendant argues that it had no duty to stabilize, because it did not detect the emergency medical condition. Alternatively, Othello states that it cannot be liable for a decision made by Dr. Mccluskey. Plaintiffs observe that Dr. McCluskey indicates that he knew methadone was the drug ingested by Mrs. Finley, and consulted the Physicians' Desk Reference on methadone during Mrs. Finley's first visit to the hospital. Nurse Fale states that she did not know what type of drug was ingested, but that Mr. Finley brought the bottle with him to the emergency room and gave it to her. Plaintiffs therefore state that there is a genuine issue of material fact as to whether Othello detected Mrs. Finley's condition.
According to Plaintiffs' expert, Dr. Bronston, Methadone is a long-acting narcotic, whose effects may last 36-48 hours, with peak effects from 6-12 hours after ingestion. (Ct. Rec. 26, Bronston Decl.). Further, the effects of methadone depend on whether the person ingesting it has built up a tolerance to opiates, and for a person who has never taken methadone, the ingestion is an emergency medical condition, ( Id.). Methadone overdose causes respiratory depression, leading to hypoxia, a decrease in blood oxygen to the brain and other organs, ( Id.). No treatment was offered to neutralize the methadone prior to discharging Mrs. Finley, ( Id.). Although oxygen was administered to Mrs. Finley, raising her blood oxygen saturation levels, she was discharged without further observation of her oxygen saturation breathing room air, resulting in only a "transitory" stabilization, ( Id.). Given this evidence, Plaintiffs argue that Othello detected an emergency medical condition, and failed to stabilize the condition prior to discharging Mrs. Finley.
III. SUMMARY JUDGMENT STANDARD
Defendants filed this motion as a Motion to Dismiss for Lack of Subject Matter Jurisdiction, (Ct. Rec. 9). Because the Court considered, and did not exclude, matters outside the pleadings, the Court treats the Motion as a Motion for Summary Judgment. See Fed.R.Civ.P. 12(b). Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgement as a matter of law." Fed.R.Civ.P. 56(c). The moving party has an initial burden of showing that there is no genuine issue of material fact by "identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) If the party requesting summary judgment demonstrates the absence of a genuine issue of material fact, the party opposing summary judgment "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial" or judgment may be granted as a matter of law. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 248. This requires the party opposing summary judgment to present or identify in the record evidence sufficient to establish the existence of any challenged element that is essential to that party's case and for which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Failure to contradict the moving party's facts with counter affidavits or other responsive materials may result in the entry of summary judgment if the party requesting summary judgment is otherwise entitled to judgment as a matter of law. See Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996); LR 7.1(h)(5).
IV. MOTION TO DISMISS EMTALA CLAIMS
In Defendant Othello's Motion to Dismiss, Othello argues that Plaintiffs state a claim for medical malpractice, but no claims under EMTALA. For Plaintiffs' claim of inappropriate medical screening, Defendants argue that Plaintiffs must show that the screening provided to Mrs. Finley was not comparable to the screening provided to other patients. Instead, Defendants assert that Plaintiffs cannot meet their burden under this standard, and at best state a malpractice claim against Dr. McCluskey. For Plaintiffs' alternative claim of failure to stabilize Mrs. Finley prior to her discharge, Othello argues that no emergency medical condition was diagnosed, and so no duty to stabilize arose under EMTALA. Othello further claims that it cannot be liable for Mrs. Finley's discharge, because Dr. McCluskey "was not a hospital agent.t' The Court addresses the motion as it pertains to each of Plaintiffs' EMTALA claims in turn.
A. EMTALA Claim of Inappropriate Screening
Othello argues that Plaintiffs' claim for inappropriate medical screening under EMTALA should be dismissed for two reasons. First, Othello argues that dismissal is appropriate, because Plaintiffs' claim only establishes a medical malpractice claim. Second, Othello argues that, applying the comparative test, Plaintiffs cannot meet their burden. Specifically, because there were no other patients within the year preceding Mrs. Finley's admission who presented with methadone ingestion, no comparison can be made. Plaintiffs counter that a malpractice claim may or may not overlap with a claim of inappropriate screening under EMTALA, so whether or not the facts alleged also state a malpractice claim is irrelevant to the Court's determination. Plaintiffs further present evidence that applying the comparative test, Mrs. Finley's screening was different from the screening afforded patients presenting with similar symptoms. For the reasons stated below, the Court finds that genuine issues of material fact exist, precluding the dismissal of Plaintiffs' claim.
1. Standard for Inappropriate Medical Screening Claim
When the initial memoranda were filed on Othello's motion, Eberhardt v. City of Los Angeles, 62 F.3d 1253 (9th Cir. 1995) was the most recent authority on the standard a plaintiff must show to state a claim for inappropriate medical screening under EMTALA. As a consequence, the parties argued differing interpretations about of the standard enunciated in Eberhardt. In the intervening period, however, the Ninth Circuit published its decision in Jackson v. East Bay Hospital, 246 F.3d 1248 (2001), which clarified Eberhardt and expressly adopted the "comparative test" for liability under this portion of EMTALA:
We hold that a hospital satisfies EMTALA's ""appropriate medical screening requirement if it provides a patient with an examination comparable to the one offered to other patients presenting similar symptoms, unless the examination is so cursory that it is not "designed to identify acute and severe symptoms that alert the physician of the need for immediate medical attention to prevent serious bodily injury."Jackson, 246 F.3d 1248, 1255 (9th Cir. 2001) (quoting Eberhardt, 62 F.3d at 1257). Thus, a Plaintiff must show that he or she was given a less adequate screening, compared with patients who had similar symptoms. If the Plaintiff does not satisfy the comparative test, a plaintiff may only proceed on showing that the examination was so cursory that it was not designed to identify acute and severe symptoms.
2. Discussion
Applying the test of Jackson to this case, it cannot be said that Plaintiffs have failed to satisfy the comparative test. In particular, Plaintiffs have noted that the primary symptoms Mrs. Finley exhibited when admitted to Othello were (1) a critically low blood oxygen saturation level of 74%, and (2) complaints of drug ingestion. On review of the discovery provided by Othello for the year preceding Mrs. Finley's emergency room visit, Plaintiff claims that of seven patients presenting blood oxygen levels at 75% or lower, only one was discharged without further observation. of four patients presenting with levels from 76% to 85%, only one was discharged without further observation. For the records of patients presenting with drug ingestion, Plaintiff states that of eighty-five patients present in the Othello emergency room with this complaint, in "virtually every instance" the specific drug ingested was ascertained and recorded in the patient's chart. It is undisputed that methadone, the drug Mrs. Finley had ingested, was not specifically recorded.
In the parties' memoranda, Plaintiffs argue that they also satisfy the standard for a screening that is so substandard that it is not "designed to identify acute and severe symptoms." Jackson v. East Bay Hosp., 246 F.3d 1248, 1256 (9th Cir. 2001). As Jackson clarifies the standard, the "designed to detect" inquiry is only triggered when a plaintiff cannot demonstrate a claim by comparison to the screening of patients with similar symptoms. See Id. Because the Court finds a genuine issue of material fact precluding summary judgment on Plaintiffs' claim that Mrs. Finley was not afforded a comparable screening, the Court does not address the secondary argument.
Defendant Othello does not take issue with the numbers presented by the Plaintiffs, in support of the claim that Mrs. Finley's screening was inadequate compared to the screening provided to other patients with similar symptoms. Othello correctly observes that EMTALA does not use "`a malpractice or other objective standard of care as to the meaning of the term "appropriate.'" Eberhardt, 62 F.3d at 1257. Othello then argues that, because the facts alleged state a malpractice claim against Dr. Mccluskey, Plaintiffs fail to state an EMTALA claim. The Court disagrees; conduct may give rise to both claims. EMTALA does not apply an "objective standard of care," in appropriate medical screening; it looks to the screening afforded patients with similar symptoms. However, one could screen all patients equally, but negligently, giving rise to malpractice claims but no EMTALA claims. Conversely, a particular individual could be screened non-negligently, but still be afforded a substandard screening in comparison with those given to similar patients. "[T]here may arise some areas of overlap between the objective test of local malpractice law and the subjective test of the adequacy of a hospital's screening under EMTALA." Ruiz v. Kepler, 832 F. Supp. 1444, 1448 (D. N.M. 1993). In sum, mere negligence is not a defense to an inadequate screening claim under EMTALA.
Othello makes only one direct attack on Plaintiffs' claim that Mrs. Finley was not given a screening comparable to patients presenting similar symptoms. Othello argues that, because no patients in the prior year presented with methadone ingestion, there is no one with whom Mrs. Finley may be compared. "Without a meaningful comparison of screenings provided to patients with similar symptoms and presentations, plaintiffs cannot carry their burden of establishing inappropriate medical screening," (Ct. Rec. 65 at 11). The test set forth in Jackson does not involve comparison based on diagnoses, but rather whether Mrs. Finley's screening was comparable to the screening "offered to other patients presenting similar symptoms." 246 F.3d at 1255 (emphasis added). Consequently, the lack of a record of previous patients with methadone ingestion does not relieve Othello of liability. Instead, the Court applies the comparative test based on patients' symptoms.
Finally, there remains a factual dispute as to whether or not methadone ingestion was diagnosed, and to whether or not respiratory distress was diagnosed. For the methadone ingestion, Dr. McCluskey has stated that he was aware that the drug ingested was methadone, and consulted his Physicians' Desk Reference to learn about the nature of the drug, (Ct. Rec. 60 at 3, 7). Nurse Pale does not recollect any attempt to ascertain the precise drug taken, and there is no record in the chart of methadone ingestion, ( Id. at 3). For blood oxygen saturation levels, the reading of 74% was recorded in Mrs. Finley's chart as the first reading when she was admitted. However, both Dr. McCluskey and Nurse Pale state that they concluded that this reading was erroneous, (Ct. Rec. 65 at 9). For this reason, there remains a genuine issue of material fact as to whether the screening led Othello to discover methadone ingestion and respiratory distress, or not. If a jury finds that these conditions were detected, then Plaintiffs' claim for inappropriate screening fails as a matter of law. Until a finding of fact is made, then, Othello's motion to dismiss this claim is DENIED.
B. EMTALA Claim of Failure to Stabilize prior to Discharge
In support of its motion to dismiss Plaintiffs' claims under EMTALA related to the discharge of Mrs. Finley without stabilization, Defendant Othello argues that it cannot be liable, because it did not detect an emergency medical condition. Specifically, the statute only imposes the duty to stabilize if the hospital first detects an emergency medical condition. Othello claims that no emergency medical condition was detected, so the hospital had no duty to stabilize Mrs. Finley prior to discharging her. The hospital further argues that it has no responsibility for discharge decisions, and cannot be vicariously liable for Dr. McCluskey's decisions. In response. Plaintiff argues that a genuine issue of material fact remains as to whether or not the emergency medical condition was detected. If a jury determines that Dr. McCluskey did in fact diagnose an emergency medical condition, then it could find that Othello discharged Mrs. Finley prior to stabilizing the condition, in violation of EMTALA.
1. Standard for Failure to Stabilize Claim
Under EMTALA, a hospital's duty to stabilize a patient prior to discharging or transferring the patient only arises if the hospital first detects an emergency medical condition:
If any individual . . . comes to a hospital and the hospital determines that the individual has an emergency medical condition, the hospital must provide . . . for such further medical examination and such treatment as may be required to stabilize the medical condition,42 U.S.C. § 1395dd. For this reason, under the plain language of the statute, a hospital cannot be liable unless it "first detects an emergency medical condition." Eberhardt v. City of Los Angeles, 62 F.3d 1253, 1259 (9th Cir. 1995) (citations omitted). If the hospital detects an emergency medical condition, it is presumed that the patient received an "appropriate medical screening examination." See, e.g., James v. Sunrise Hosp., 86 F.3d 885, 889 (9th Cir. 1996) (holding that transfer provisions only apply when one comes to the emergency room, and after appropriate screening, an emergency condition is detected).
The "emergency medical condition," is defined under the statute:
(A) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in —
(i) placing the health of the individual (or; with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,
(ii) serious impairment to bodily functions, or
(iii) serious dysfunction of any bodily organ or part;
42 U.S.C. § 1395dd(e)(1)(A). Thus, if a hospital detects an emergency medical condition as defined by EMTALA, the duty to stabilize is triggered. "Stabilize" means:
with respect to an emergency medical condition described in paragraph (1)(A), that no material deterioration of the condition is likely, within reasonable medical probability, to result from or occur during the transfer of the individual from the facility.42 U.S.C. § 1395dd(e)(3)(B). Under this definition, the duty to stabilize might appear to relate only to situations where the patient is transferred from one hospital to another. On the contrary, "transfer" as used in EMTALA is a term of art, which specifically includes the discharge of the patient:
"transfer" means the movement (including the discharge) of an individual outside hospital's facilities at the direction of any person employed by (or affiliated or associated, directly or indirectly, with) the hospital,42 U.S.C. § 1395dd(e)(4).
2. Discussion
Applying this standard in the instant case, Defendant Othello claims that it cannot be held liable for an emergency medical condition it did not detect. See, e.g., Jackson v. East Bay Hosp., 246 F.3d 1248, 1257 (9th Cir. 2001) (holding no duty under EMTALA to stabilize undetected condition); Eberhardt v. City off Los Angeles, 62 F.3d 1253, 1259 (same). The cases cited by Defendant, however, present facts under which no evidence was presented that the emergency medical condition was detected.
In Jackson, for example, the hospital "stabilized the only emergency medical condition its doctors detected." 246 F.3d at 1257. Where doctors detected the patient's agitation, but none of the symptoms of the patient constituted emergency conditions in and of themselves, the doctors' failure to diagnose an underlying Anafranil toxicity as the cause of the patient's condition did not state an EMTALA claim. See id. Similarly in Eberhardt, the Hospital detected and stabilized heroin and cocaine overdose, but was not liable for the patient's alleged suicidal tendency, because it was not diagnosed as an emergency medical condition. See 62 F.3d 1253, 1258 (9th Cir. 1995). See also Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266, 271 (6th Cir. 1990) (No duty to stabilize where hospital diagnosed influenza, but not intussusception, so could not have stabilized unknown emergency condition).
In this case, by contrast, the drug taken was known. Mrs. Finley's family identified a specific pain medication prescribed for Mr. Finley as the cause of her symptoms, and Mr. Finley gave the bottle to Nurse Pale, (Ct. Rec. El, Ex. 7 at 34). Further, Othello's recorded that Mrs. Finley's initial oxygen saturation was 74%, which is consistent with the respiratory depression that is symptomatic of methadone overdose, (Ct. Rec. 16, Ex. 1 at 3).
Defendants now claim that this reading was deemed to be an error, but it was charted nonetheless. Dr. McCluskey stated in deposition that he felt the reading was erroneous because, based on clinical observation, Mrs. Finley did not appear to be in respiratory distress, (Ct. Rec. 61, Ex. 5 at 57-58). However, Dr. McCluskey also conceded that for most of his observations of Mrs. Finley, she was already on supplemental oxygen, ( Id. at 59-60). Dr. Mccluskey also indicates that he was told by both Mr. and Mrs. Finley that the medication ingested was methadone, ( Id. at 8), although the Nurse Pale does not recall this, (Ct. Rec. 61, Ex. 7 at 34-37). He indicates that after Mrs. Finley was admitted, he reviewed the Physicians' Desk Reference for methadone, and was aware that this was the source of Mrs. Finley's distress, ( Id. at 33). This is not a case where the cause of Mrs. Finley's symptoms was unknown; the only issue is the assessment of the contents of the bottle and the seriousness of the dose ingested by Mrs. Finley.
Defendant suggests that, at best, Dr. McCluskey negligently diagnosed a non-emergent "drug effect," rather than a more serious "drug overdose." As discussed above, this is not a defense, because negligence may or may not overlap with an EMTALA claim. Plaintiffs have presented evidence that the Hospital arguably did detect an emergency medical condition, both in Mrs. Finley's oxygen saturation levels, and in her ingestion of methadone.
As to whether Othello might be relieved from liability simply by the distinction between "drug effect," and "drug overdose," the Court does not find the distinction in labels to be dispositive under the statute. Comparing the facts alleged by the Plaintiffs to the statutory definition of "emergency medical condition," Plaintiffs have evidence that Mrs. Finley presented with the acute symptom of critically low blood oxygen saturation levels. Plaintiffs have put forward evidence that ingestion of methadone by one who is unaccustomed to it, could reasonably be expected to result in dysfunction of the person's bodily organs; specifically, to respiratory depression depriving the blood of oxygen, which can lead to irreparable brain damage, (Ct. Rec. 26, Bronston Decl.; Ct. Rec. 61, Ex. 5 at 22-24; Ct. Rec. 11, Ex. B). Although Dr. McCluskey's diagnosis on Othello's record of February 21, 1999, was "drug effect," a more extensive dictation the next day states that "patient was seen last evening in the emergency room and diagnosed with a viral syndrome, acute gouty arthritis and drug effect. She had taken a mild overdose of a Methadone cocktail . . ." (Ct. Rec. 16, Ex. 2). Consequently, the line between side effects and overdose is blurry, as Dr. McCluskey has conceded at least a mild overdose."
Othello has not presented evidence from experts, or any other type of evidence to refute Plaintiffs' evidence that Mrs. Finley presented with an emergency medical condition. If a jury believes Dr. McCluskey's testimony that he knew the drug was methadone and had consulted the Physicians' Desk Reference for methadone, it could find that the hospital did detect methadone ingestion that was an "emergency medical condition."
Similarly, if a finding of detection is made, Othello has not refuted Plaintiffs' evidence that Mrs. Finley's blood oxygen levels and methadone ingestion were not stabilized prior to her discharge. On the record before the Court, Mrs. Finley was given oxygen, but nothing to specifically counteract the effects of the narcotic. In addition, her blood oxygen saturation levels were not retested on room air. Plaintiffs' evidence shows that methadone is a long-acting narcotic, with more severe effects in those unaccustomed to opiates. Plaintiffs also present evidence that the effects of methadone peak six to twelve hours after ingestion, and effects may last up to 48 hours. Mrs. Finley was admitted approximately four to five hours after the methadone was ingested; and Othello discharged her less than an hour later, (Ct. Rec. 16, Ex. 1) After her discharge, Mrs. Finley went to sleep, and was sleeping when her husband left the next morning. (Ct. Rec. 16, Ex. 2). When Mr. Finley returned home around noon, he could not awaken her, ( Id.). Mrs. Finley was again taken to Othello by ambulance, near coma. Given these facts, if a jury finds that Dr. McCluskey detected methadone ingestion, it could find that Mrs. Finley's condition was likely to materially deteriorate on discharge, and that Othello failed to stabilize her under EMTALA.
Othello's final argument in support of dismissal is that Dr. McCluskey is an independent contractor, who is not an agent of the hospital under the contract, and so it cannot be liable for Dr. McCluskey's discharge decisions. EMTALA defines transfer, which includes discharge of patients, to be the movement of an individual outside the hospital "at the direction of any person employed by (or affiliated or associated, directly or indirectly, with) the hospital." 42 U.S.C. § 1395dd(e)(4). The plain language of the statute precludes this defense, because the discharge could be accomplished even by a person indirectly associated with the hospital. Under EMTALA, then, hospitals are responsible for the transfer or discharge of patients, regardless of the specific relationship between the hospital and the person that actually discharges the patient.
Further, Defendant has not put forth any legal authority for the proposition that common law agency may be altered by a contractual declaration that the person is not an agent. Agency is based on a principal delegating its authority to an agent. It is undisputed that Othello delegated its decision-making authority over the discharge of patients to Dr. McCluskey. This is the very definition of an "agent." See, e.g., BLACK'S LAW DICTIONARY (6th ed. 1991). Finally, even if Othello could demonstrate that it had conferred no authority on Dr. McCluskey, it could be liable at common law for his acts as its apparent agent. See id.; RESTATEMENT, SECOND, AGENCY § 8.
In sum, for the claim of discharge prior to stabilizing an emergency medical condition, there is a genuine issue of material fact as to whether or not Othello detected the emergency medical conditions of methadone ingestion and critically low blood oxygen saturation levels. If a jury finds that emergency medical conditions were detected after an appropriate medical screening, Plaintiff has put forth evidence that the treatment of Mrs. Finley did not satisfy EMTALA's standard for stabilization. This evidence is unrebutted by Othello. Finally, the defense that Othello can avoid liability by delegating discharge decisions to its doctors contravenes the plain language of the statute and is unsupported by legal authority. Accordingly, the Court DENIES Othello's motion to dismiss the claim of failure to stabilize an emergency medical condition.
V. CONCLUSION
Plaintiffs' EMTALA claims are not only presented in the alternative, they are based on competing interpretations of factual evidence. A jury may interpret the evidence to indicate that Othello did not ascertain that Mrs. Finley had an emergency medical condition regarding methadone ingestion, based on the lack of such diagnosis on the record. On the other hand, a jury could decide based on Dr. McCluskey's testimony, that the Hospital was aware that Mrs. Finley had ingested methadone, and infer that the Hospital was aware of the need to stabilize given the long-acting character of the drug, and failed to do so. Similarly, a jury could decide whether the Hospital ascertained Mrs. Finley's low oxygen saturation levels as an emergency medical condition, or whether the 74% saturation was in fact attributed to mechanical error of the equipment. If this was a detected emergency medical condition, the failure of the Hospital to retest Mrs. Finley on room air prior to discharge could meet the standard for failure to stabilize, as defined under EMTALA. Alternatively, if a jury determines that no emergency medical condition was detected, it could, based on comparison with other patients, find that the Hospital failed to provide Mrs. Finley with an appropriate medical screening.
Given the competing nature of Plaintiffs' EMTALA claims, the viability of one claim precludes the other. However, to determine which claim is viable, the fact finder must first determine whether the Hospital detected Mrs. Finley's emergency medical conditions or not. There is factual evidence on the record in support of both positions. This constitutes a genuine issue of material fact, precluding summary judgment in favor of Othello Community Hospital on both claims. As a consequence, the Court DENIES Defendant's Motion to Dismiss for failure to state a claim under EMTALA.
IT IS HEREBY ORDERED:
1. Defendant Othello Community Hospital's Motion to Dismiss for Lack of Subject Matter Jurisdiction, ( Ct. Rec. 9), is DENIED. /// /// /// /// /// /// IT IS SO ORDERED. The District Court Executive is directed to
(A) Enter this Order;
(B) SET a Telephonic Scheduling Conference by separate notice to counsel; and
(C) Provide copies of this Order to all counsel.