Opinion
No. 95-0624-CV-W-6.
October 26, 1995
MEMORANDUM AND ORDER
Defendant Board of Trustees of North Kansas City Hospital ("the Board") has filed a motion to dismiss, pursuant to Fed.R.Civ.P. 12(b) (6), for failure to state a claim upon which relief can be granted. The Board contends that any claims against it are precluded by the doctrine of sovereign immunity. Plaintiffs, relying on a decision of the United States District Court for the Eastern District of Missouri, counter that the Board's immunity from suit is preempted by the prohibition against "patient-dumping" in Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd.
All section references are to Title 42 of the United States Code.
On March 4, 1994, plaintiff Gerald Etter cut his thumb while working in his home workshop. A portion of his thumb was severed. Mr. Etter sought emergency care at North Kansas City Memorial Hospital ("the hospital"), and was admitted approximately fifteen minutes after his arrival. Mr. Etter was given a tetanus shot and hooked up to an intravenous unit.
Plaintiff Christine Etter, wife of Gerald Etter, was sent to the family home by hospital personnel for the purpose of retrieving the severed portion of Mr. Etter's thumb. Mrs. Etter found the portion of the thumb, placed it on ice, and returned it to the hospital. According to the complaint, once hospital personnel learned of Mr. Etter's insurance carrier, he was transferred to another facility before his condition had properly stabilized.
Mr. Etter allegedly informed hospital personnel that he was insured by Cigna, and the hospital did not accept Cigna.
The Etters filed a two-count complaint against the Board and the physicians, nurses, and support staff who examined and treated Mr. Etter while he was at the hospital. Count I of the complaint is a claim under EMTALA, and count II is a state law claim for loss of consortium.
It appears to be settled that EMTALA creates a cause of action only against the hospital, not against physicians or other employees. Delaney v. Cade, 986 F.2d 387, 393-94 (10th Cir. 1993); Baber v. Hosp. Corp. of America, 977 F.2d 872, 876-78 (4th Cir. 1992). Plaintiffs accordingly cannot state a claim under EMTALA against the physicians, nurses, and support staff.
I. Standard for a 12(b) (6) Motion to Dismiss
In considering a motion to dismiss for failure to state a claim, the court accepts as true all factual allegations in the complaint. Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 113 S.Ct. 1160, 1161 (1993). The motion will be granted only if no set of proven facts would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-45 (1957); Forbes v. Arkansas Educ. Television Communication Network Found., 22 F.3d 1423, 1427 (8th Cir.), cert. denied, 115 S.Ct. 500 (1994). "If . . . matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment." Fed.R.Civ.P. 12(b).
II. Legal Analysis
In State ex rel. Bd. of Trustees v. Russell, 843 S.W.2d 353 (Mo. 1992), the Missouri Supreme Court held that the Board was part of the city of North Kansas City, and was immune from suit to the same extent as the city. Id. at 357. The court further held that operating a hospital was a governmental function to which sovereign immunity attached. Id. at 358-60. Consequently, Mrs. Etter's state law claim for loss of consortium is barred.
EMTALA requires hospitals to "provide for . . . appropriate medical screening examination[s]" when an individual comes to the emergency room and requests treatment. § 1395dd(a). EMTALA further prohibits transfers unless the patient's condition has stabilized. § 1395dd(c) (1). The relevant enforcement provision of EMTALA states:
Any individual who suffers personal harm as a direct result of a participating hospital's violation of a requirement of this section may, in a civil action against the participating hospital, obtain those damages available for personal injury under the law of the State in which the hospital is located, and such equitable relief as is appropriate.
§ 1395dd(d) (2) (A).
The Board contends that its immunity from suit is not altered by EMTALA, noting the reversal in relevant part of Power v. Arlington Hospital, 800 F.Supp. 1384 (E.D. Va. 1992), aff'd in part, rev'd in part, 42 F.3d 851 (4th Cir. 1994), by the Fourth Circuit. This reversal, according to the Board, renders Helton v. Phelps County Regional Medical Ctr, 817 F.Supp. 789 (E.D. Mo. 1993), which relied on the lower court's reasoning in Power and is the only decision by a court in this Circuit on point, unpersuasive.
The district court in Power construed the reach of EMTALA's civil enforcement provision in conjunction with a Virginia statute that capped medical malpractice damages and the tort liability of tax-exempt hospitals. The court determined that these caps were not applicable because the express language of EMTALA referred to "damages available for personal injury," not "damages available for medical malpractice." Power v. Arlington Hospital, 800 F.Supp. at 1388-91; see also Cooper v. Gulf Breeze Hosp., 839 F.Supp. 1538 (N.D. Fla. 1993) (applying this reasoning to a Florida statute capping medical malpractice damages). The Fourth Circuit reversed on this point, and held that "Congress was [not] required to refer specifically to malpractice damages caps or use explicit limiting language in order for § 1395dd(d) (2) (A) to incorporate state malpractice damages caps." Power v. Arlington Hospital, 42 F.3d 851, 862 (4th Cir. 1994). Neither Power decision addressed the issue of state sovereign immunity, and thus these cases are not squarely determinative of the issue before the court.
In Helton, the district court perceived a direct conflict between sovereign immunity and EMTALA. The court found the Power district court decision "[d]irectly on point" and summarily held that a county hospital was not entitled to avail itself of sovereign immunity. Helton v. Phelps County Regional Medical Ctr, 817 F.Supp. at 791-92. This court essentially agrees with the Helton decision.
Preemption cannot occur in the absence of a direct conflict. See § 1395dd(f) ("The provisions of this section do not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.").
Power was not "directly on point," as it dealt with the relatively narrow issue of the applicability of a medical malpractice and tort liability caps to a cause of action under EMTALA. A rejection of sovereign immunity was neither discussed nor implied. It may be possible to argue that sovereign immunity, which totally bars recovery, is not "directly" contrary to the provision of federal law that a victim of patient-dumping shall recover damages "available for personal injury under the law of the State" because conceptually the law of the State of Missouri allows zero damages, and the rules may be deemed complementary rather than conflicting. It seems more realistic, however, to consider, as Judge Gunn did in Helton, that the Congressional legislation sufficiently demonstrates an intention to allow damages (modifiable by State law) and that any total rejection of damage suits directly conflicts with the expressed Congressional intent.
The Fourth Circuit's reversal of Power has little bearing on this court's analysis. Whether the phrase "damages for personal injury" includes medical malpractice damages is not at issue here.
Plaintiffs also seek recovery under § 1395dd(d) (1). That section is entitled "Civil Money Penalties," and allows a civil penalty of not more than $50,000 (or $25,000 in some cases) for negligent violations of EMTALA. This section is subject to §§ 1320a-7a(c)-(1). Section 1320a-7(a) (f) makes clear that civil penalties may be recovered only by the Secretary of Health and Human Services in actions brought in the name of the United States in an appropriate United States District Court. See Burditt v. U.S. HHS, 934 F.2d 1362 (5th Cir. 1991) (civil penalty assessed by ALJ after hearing); see also Bernstein v. Sullivan, 914 F.2d 1395 (10th Cir. 1990) (purpose of the civil penalty provision is to reimburse the government for its costs of investigation and to promote an adjunct to criminal proceedings). The court can find no authority for allowing private litigants to recover penalties, as opposed to damages.
The Board's motion to dismiss is therefore DENIED, except as stated herein. SO ORDERED.