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denying motion to dismiss patient's EMTALA claim when hospital treated patient differently based on sexual orientation, even though hospital diagnosed and treated patient's appendicitis
Summary of this case from Cervantes v. Tenet Hosps. Ltd.Opinion
Case No. 98-2576-JWL.
April 1, 1999
MEMORANDUM AND ORDER
Plaintiff Joseph Blake instituted this diversity action to recover damages allegedly resulting from the treatment he received while a patient at Overland Park Regional Medical Center ("OPRMC"). The matter is presently before the court on defendants OPRMC and Carcopa's motion to dismiss counts I, II, III, IV, and VI (doc. 14), defendant Schutz's motion to dismiss counts I, II, and IV (doc. 22), and defendant Richardson's motion to dismiss counts I, II, and IV (doc. 28). For the reasons set forth below, defendants OPRMC and Carcopa's motion, as well as defendant Richardson's and defendant Schutz's motions, are granted in part and denied in part. Specifically, the court denies defendants OPRMC and Carcopa's motion to dismiss Count I, as well as Drs. Richardson's and Shutz's separate motions to dismiss Count I of plaintiff's complaint. To the extent that Counts II and IV of plaintiff's complaint allege assault and battery, they are dismissed with leave to amend on or before April 12, 1999. Further, to the extent that plaintiff's complaint fails to allege a basis for liability with respect to defendants OPRMC and Carcopa as to the tortious acts allegedly committed by Drs. Richardson and Schutz, Counts II, III, IV, and IV are dismissed against defendants OPRMC and Carcopa. To the extent that a factual basis exists to do so, however, the court grants plaintiff leave to amend his complaint on or before April 12, 1999 in an effort to cure his failure to allege the requisite grounds for the imputation of liability to defendants OPRMC and Carcopa for the claims alleged in Counts II, III, IV, and IV.
The court notes that although they have filed separate motions to dismiss, in their motions, Drs. Richardson and Schutz adopt and incorporate by reference the Memorandum in Support of Defendants OPRMC and Carcopa's Motion to Dismiss with respect to Counts I, II, and IV. With the exception of defendants OPRMC and Carcopa's additional justification for the dismissal of Counts II, III, IV, and VI, all defendants have moved to dismiss Counts I, II, and IV for precisely the same reasons. For the sake of simplicity, in its discussion of Counts I, II, and IV, the court will refer to defendants' arguments collectively.
I. Background
On March 24, 1997, plaintiff was admitted to OPRMC's emergency room, complaining of pain in the lower right quadrant of his abdomen, a condition that was eventually diagnosed as acute appendicitis. According to the complaint, while plaintiff was waiting to be treated, Dr. Schutz inquired as to plaintiff's sexual orientation, whereupon plaintiff disclosed his status as a homosexual. As a result of this disclosure, plaintiff claims, Drs. Schutz and Richardson required plaintiff to consent to, and await the results of, an HIV antibody screen before administering any additional treatment.
Once the results of the HIV screen were obtained, an emergency appendectomy was performed to remove plaintiff's inflamed appendix. Three days later, plaintiff was released from the hospital while running, according to the complaint, a low grade fever. No prescription for antibiotics was dispensed at the time of plaintiff's discharge from the hospital. At some point following plaintiff's release from OPRMC, plaintiff suffered a bowel obstruction, a condition which necessitated a second surgery to remove gangrenous material from plaintiff's abdomen.
II. Legal Standard
The court will dismiss a cause of action for failure to state a claim only when it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle him or her to relief, Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), or when an issue of law is dispositive. Neitzke v. Williams, 490 U.S. 319, 326 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, Maher, 144 F.3d at 1304, and all reasonable inferences from those facts are viewed in favor of the plaintiff. Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir. 1998). The issue in resolving a motion such as this is not whether the plaintiff will ultimately prevail, but whether he or she is entitled to offer evidence to support the claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
III. Analysis
A. EMTALA Claim
Count I of plaintiff's complaint alleges that, by treating plaintiff differently than other similarly-situated patients, OPRMC violated the Emergency Medical Treatment and Active Labor Act (EMTALA), enacted as part of the Consolidated Omnibus Budget Reconciliation Act (COBRA), codified at 42 U.S.C. § 1395dd et seq. Defendants move to dismiss plaintiff's EMTALA claim on the ground that plaintiff has failed to allege that any disparate treatment received was motivated by economic reasons.
Section 1395dd(a), under which plaintiff's EMTALA claim is asserted, provides, in pertinent part:
The court notes that from the face of the complaint, it is unclear under which subsection of 42 U.S.C. § 1395dd plaintiff intended to proceed. Because Count I alleges that plaintiff was forced to wait until the results of an HIV test were returned before the emergency appendectomy was performed, defendants assumed in their motions to dismiss that plaintiff is asserting a claim under § 1395dd(h), the EMTALA subsection which specifically prohibits delays in the examination or treatment of patients. That subsection, however, prohibits hospitals from delaying treatment in order to inquire as to the individual's method of payment or insurance status. Defendants therefore argue that because plaintiff fails to allege that his treatment was delayed in order to determine his economic status and/or ability to pay, Count I must be dismissed for failure to state a claim.
In its response, plaintiff explains that by Count I, he is alleging that he was treated differently than other similarly situated appendicitis patients. Plaintiff thus argues that he is not proceeding under § 1395dd(h), but rather under § 1395dd(a), the subsection that has been interpreted to require that all similarly situated patients are subjected to identical medical screening procedures. See, e.g., Repp v. Andarko Mem'l Hosp., 43 F.3d 519, 522 (10th Cir. 1994). Despite defendants' strong contention that Count I should be characterized as a claim under § 1395dd(h), the court finds plaintiff's argument to the contrary compelling, and thus addresses the issue of whether plaintiff's claim under § 1395dd(a) is sufficient to withstand a 12(b)(6) motion to dismiss.
In the case of a hospital that has a hospital emergency department, if any individual . . . 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 . . . exists. 42 U.S.C. § 1395dd(a) (1998).
The Tenth Circuit has specifically held that plaintiff's status as indigent or uninsured is unnecessary to the maintenance of an EMTALA action. Collins v. DePaul Hospital, 963 F.2d 303, 308 (10th Cir. 1992) (citing Gatewood v. Washington Healthcare Corp., 933 F.2d 1037 (D.C. Cir. 1991) and Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266 (6th Cir. 1990)). Instead, the Collins court explained:
42 U.S.C. § 1395dd(a) encompasses, by its terms, "any individual (whether or not eligible for benefits under this subchapter). . . ." The fact that Congress, or some of its members, viewed COBRA as a so-called "anti-dumping" bill, i.e., a bill designed to prohibit hospitals from "dumping" poor or uninsured patients in need of emergency care, does not subtract from its use of the broad term "any individual."Id. Thus, the Collins court concluded, "the fact that [plaintiff] was non-indigent, i.e., he could and did pay his medical and hospital bills, does not defeat his COBRA action." Id.
The court notes that while its protections are available to all patients, indigent or otherwise, EMTALA was not enacted as a federal medical malpractice statute. Repp v. Andarko Mem'l Hosp., 43 F.3d 519, 522 (10th Cir. 1994). Thus, the Tenth Circuit has counseled, "section 1395dd(a) was not intended `to ensure each emergency room patient a correct diagnosis, but rather to ensure that each is accorded the same level of treatment regularly provided to patients in similar medical circumstances.'" Id. (quoting Collins, 963 F.2d at 307). Accordingly, to state a claim under 42 U.S.C. § 1395dd, an EMTALA plaintiff must allege that the treating hospital treated him or her differently than it would other patients in like circumstances. Id. ("A hospital satisfies the requirements of § 1395dd(a) if its standard screening procedure is applied uniformly to all patients in similar medical circumstances.")
Plaintiff alleges that, unless all appendicitis patients are ordinarily required to wait for the results of an HIV screen before being rushed to surgery, once his sexual orientation was discovered by defendants, plaintiff was singled out and treated differently than other similarly situated patients. Thus, plaintiff claims, by being forced to submit to, and await the results of, an HIV test prior to being admitted to surgery, OPRMC failed to administer the same level of treatment regularly provided to patients exhibiting acute appendicitis symptoms. The court finds these allegations sufficient to withstand defendants' motions to dismiss under the theories advanced therein. Defendants' motions to dismiss Count I are therefore denied.
B. Counts II and IV
Defendants move to dismiss Counts II and IV on the ground that these counts assert claims for assault and battery, which, pursuant to K.S.A. § 60-514(b), are barred by the one-year statute of limitations. In response, plaintiff argues that Count II is a claim not for assault and battery, but instead for defendants' unlawful attainment of plaintiff's consent to the HIV test. Plaintiff argues that Count II sounds in negligence and/or medical malpractice, as opposed to assault and battery, because he was incorrectly informed that the test was required before the appendectomy could be performed.
The court notes that, in its response to defendants' motions to dismiss, plaintiff has failed to address defendants' similar argument with respect to Count IV's apparent assault and battery claim. Although the court would normally treat such a failure to respond as a tacit abandonment of the claim, because plaintiff later addresses defendants OPRMC and Carcopa's additional ground for the dismissal of Counts II, III, IV, and VI, it is not clear that plaintiff intended to abandon Count IV altogether. Thus, the court will permit plaintiff to amend both Counts II and IV, to the extent that a factual basis exists to do so.
The court concludes that, to the extent that Counts II and IV allege a claim for assault and battery, the claims are barred by the running of the statutory period as set forth in K.S.A. § 60-514(b). Although the court agrees with defendants and reads these counts to allege assault and battery claims, to the extent that Counts II and IV instead allege claims sounding in negligence or medical malpractice, plaintiff is granted leave to amend his complaint on or before April 12, 1999 to more clearly set forth the non-time-barred bases for these claims.
C. Counts II, III, IV, and VI
Defendants OPRMC and Carcopa move to dismiss Counts II, III, IV, and VI on the ground that the complaint fails to set forth sufficient facts to indicate these defendants' liability for the wrongs alleged in those counts. The court will consider OPRMC's and Carcopa's motion on this basis separately.
1. Defendant OPRMC
Defendant OPRMC contends that, as a corporate entity, the only theory available to plaintiff under which OPRMC's liability for the tortious acts alleged in Counts II, III, IV, and IV may lie is pursuant to the doctrine of respondeat superior. Under that doctrine, "a medical care facility would be subject to liability for negligent acts of an employee or agent." Aldoroty v. HCA Health Servs. of Kansas, Inc., 265 Kan. 666, 681, 962 P.2d 501, 511 (1998). In contrast, however, "a medical care facility would not be subject to liability for an independent contractor's negligent acts, and physicians customarily are independent contractors." Id. In the context of physician-hospital affiliations, this well-recognized principle of agency law has been codified by the Kansas legislature. Specifically, K.S.A. § 65-442(b) provides:
There shall be no liability on the part of and no action for damages shall arise against any licensed medical care facility because of the rendering of or failure to render professional services within such medical care facility by a person licensed to practice medicine and surgery if such person is not an employee or agent of such medical care facility.
K.S.A. § 65-442(b). Because no agency relationship to support the invocation of the respondeat superior doctrine has been alleged, defendant OPRMC moves to dismiss Counts II, III, IV, and VI for "failure to link [OPRMC] to the wrong."
In his complaint, plaintiff has wholly failed to specifically allege that an employment or agency relationship existed between OPRMC and Drs. Richardson and Schutz. Moreover, plaintiff's complaint is devoid of any factual allegations which would support such a theory. Thus, the court concludes that the pleadings are currently insufficient to establish defendant OPRMC's liability with respect to the allegations set forth in Counts II, III, IV, and VI. Accordingly, the court dismisses Counts II, III, IV, and VI against defendant OPRMC without prejudice. Plaintiff is granted leave to amend his complaint on or before April 12, 1999 to plead facts sufficient to prove that defendants Richardson and Schutz were officers, directors, employees or agents of OPRMC.
Additionally, OPRMC contends that under K.S.A. § 40-3403(h), it cannot be held vicariously liable for the alleged malpractice of Drs. Richardson and Schutz, because the doctors and the hospital are all covered by the Health Care Stabilization Fund. Section 40-3403(h) provides, in pertinent part:
A health care provider who is qualified for coverage under the [health care stabilization] fund shall have no vicarious liability or responsibility for any injury or death arising out of the rendering of or the failure to render professional services inside or outside this state by any other health care provider who is also qualified for coverage under the fund.
K.S.A. § 40-3403(h). The constitutionality of K.S.A. § 40-3403(h) was recently upheld by the Kansas Supreme Court. Lemuz By and Through Lemuz v. Fieser, 261 Kan. 936, 933 P.2d 134 (1997).
The court notes that with respect to the potential applicability of K.S.A. § 40-3403(h), defendant OPRMC has raised a valid point. If both the doctors and OPRMC are covered by the Health Care Stabilization Fund, then no basis for imputing liability to OPRMC for the tortious acts of Drs. Richardson and Schutz exists. Thus, although the court will allow plaintiff leave to amend his complaint to allege the existence of an employment relationship between OPRMC and Drs. Richardson and Schutz to the extent that the facts so indicate, plaintiff is cautioned under Fed.R.Civ.P. 11 to first determine whether, in light of the potential applicability of K.S.A. § 40-3403(h), he may still, in good faith, proceed with Counts II, III, IV, and VI against defendant OPRMC.
2. Defendant Carcopa
Similarly, with respect to Counts II, III, IV, and VI, plaintiff has failed to plead any factual basis to support the attribution of liability for the tortious acts alleged in those counts to defendant Carcopa, an attending nurse employed by OPRMC. Indeed, as duly noted by defendant, there appears from the complaint no basis to hold Carcopa responsible for the tortious acts allegedly committed by Drs. Richardson and Schutz. Accordingly, Counts II, III, IV, and VI are dismissed against defendant Carcopa. To the extent that a factual basis exists to impute liability to Carcopa for the claims alleged in those counts, however, plaintiff is granted leave to file an amended complaint on or before April 12, 1999.
IT IS THEREFORE ORDERED BY THE COURT THAT defendants OPRMC and Carcopa's motion to dismiss (doc. 14), as well as defendant Richardson's (doc. 28) and defendant Schutz's motions (doc. 22), for failure to state a claim are granted in part and denied in part.
IT IS FURTHER ORDERED BY THE COURT THAT defendants OPRMC and Carcopa's motion to dismiss Count I of plaintiff's complaint, as well as Drs. Richardson's and Shutz's separate motions to dismiss Count I of plaintiff's complaint, are denied.
IT IS FURTHER ORDERED BY THE COURT THAT to the extent that Counts II and IV of plaintiff's complaint allege assault and battery, they are dismissed with leave to amend on or before April 12, 1999.
IT IS FURTHER ORDERED BY THE COURT THAT to the extent that plaintiff's complaint fails to allege a basis for liability with respect to defendants OPRMC and Carcopa as to the tortious acts allegedly committed by Drs. Richardson and Schutz, Counts II, III, IV, and IV are dismissed against defendants OPRMC and Carcopa.
IT IS FURTHER ORDERED BY THE COURT THAT plaintiff is granted leave to amend his complaint in accordance with this order on or before April 12, 1999. Failure to do so will result in dismissal with prejudice.