Opinion
No. CV-07-5004022
April 14, 2008
MEMORANDUM OF DECISION
On July 30, 2007, the plaintiff, Karen Guerri, administrator of the estate of Craig Guerri, filed a complaint against the defendants, Lawrence Memorial Hospital, Inc. (LM) and Michael Alper, M.D., alleging medical negligence. In a four-count second amended complaint, the plaintiff alleges the following facts: On December 17, 2006, the decedent went to the Pequot Health Center, which is owned and operated by LM, complaining of chest pain accompanied by numbness in his left arm. The decedent was examined and treated by Alper, an agent or employee of LM. Alper ordered an electrocardiogram which showed an abnormal result. Alper made an incorrect diagnosis of atypical chest pain of muscoloskeletal origin, and discharged the decedent. On December 20, 2006, the decedent complained of feeling dizzy, collapsed and was pronounced dead on arrival at LM with the cause of death due to acute antero-apical myocardial infarction secondary to spontaneous dissection of the left main coronary artery and left anterior descending coronary artery.
Count one is directed against Alper. Counts two, three and four are directed against LM, alleging respondeat superior, negligence per se based on the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd and corporate negligence, respectively. Count thee, which is the subject of the motion to strike, specifically alleges that LM was negligent per se in that it violated 42 U.S.C. §§ 195dd(a), 1395dd(b)(1)(A) and 1395dd(b)(1)(B) of EMTALA. LM and Alper have moved to strike count three on the ground that it fails to set forth predicate facts necessary to establish a claim under EMTALA.
Paragraph 20 of count three of the second amended complaint provides that: "In one or more of the following ways the Defendant, Lawrence and Memorial Hospital was negligent per se in that it:
a. violated 42 U.S.C. § 1395dd(a) when it failed to perform STAT serial cardiac enzymes and troponin levels;
b. violated 42 U.S.C. § 1395dd(b)(1)(A) when it failed to provide emergency treatment to stabilize Craig Guerri's myocardial infarction;
CT Page 6252
c. violated 42 U.S.C. § 1395dd(b)(1)(A) when it failed to obtain STAT consultation from a cardiologist;
d. violated 42 U.S.C. § 1395dd(b)(1)(A) when it failed to admit Craig Guerri to LM for such further medical examination and such treatment as might be required to stabilize his medical condition; and
e. violated 42 U.S.C. § 1395dd(b)(1)(B) when it failed to arrange for transfer of the individual to another medical facility which could treat him appropriately."
On September 5, 2007, the plaintiff withdrew her action against the Emergency Medicine Physicians of New London County, LLC, and Emergency Medicine Physicians, Ltd. Although count three is only directed against LM, Alper is also named in the motion.
The motion to strike was originally directed towards the plaintiff's first amended complaint which was subsequently further amended on November 21, 2007. Since this most recent amendment was filed without objection and does not substantially impact the motion to strike, the court considers the second amended complaint the operative pleading for all purposes relating to this decision. See Practice Book § 10-60(a)(3).
I
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) CT Page 6246 Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003); see Practice Book § 10-39. "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "A motion to strike is essentially a procedural motion that focuses solely on the pleadings . . . It is, therefore, improper for the court to consider material outside of the pleading that is being challenged by the motion." (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
The defendants move to strike count three on the ground that the plaintiff fails to state a viable cause of action for negligence per se against LM under EMTALA. In support of the motion to strike, LM claims that the plaintiff has failed to allege that LM is a participating hospital covered by EMTALA; that LM refused to provide emergency medical treatment to the decedent or that LM transferred the decedent before his emergency condition was stabilized; that LM violated EMTALA's screening requirement by failing to evenhandedly apply its established screening procedure or standard of care which it regularly follows for other patients presenting with substantially similar conditions. In addition, LM argues that a violation of EMTALA's transfer requirement has not been sufficiently alleged by the plaintiff because Alper never diagnosed the decedent with an emergency medical condition and because the decedent was not transferred to another healthcare facility or institution. Lastly, it argues that based on the existing allegations, one cannot draw a reasonable inference that the decedent was denied treatment or received treatment different from any other individual presenting with similar complaints and symptoms to the Pequot Health Center.
This issue was resolved at the short calendar on January 28, 2008. The defendants agreed that LM was a participating hospital, covered by EMTALA.
The plaintiff counters that she has alleged predicate facts necessary to make a claim of negligence per se under EMTALA. She argues that evidence will be presented to demonstrate that LM failed to provide an appropriate medical screening examination within the capability of its emergency department, that LM's records reflect that Alper knew or should have known that the decedent was suffering from an emergency medical condition and that the defendants have misinterpreted the requisite elements of EMTALA and/or misunderstood its purpose.
"In 1986, Congress enacted EMTALA in response to widely publicized reports of emergency care providers transferring indigent patients from one hospital to the next while the patients' emergency medical conditions worsened. EMTALA was designed specifically to address this important societal concern; it was not intended to be a federal malpractice statute." Harry v. Marchant, 291 F.3d 767, 770 (11th Cir. 2002).
"Under EMTALA, participating hospitals must screen any individual who comes to its emergency room seeking treatment in order to determine whether the individual has an emergency medical condition. § 1395dd(a). If such a condition exists, the hospital must then provide stabilizing treatment before discharging or transferring the patient. § 1395dd(b)." Kizzire v. Baptist Health System, Inc., 441 F.3d 1306, 1310 (11th Cir. 2006); see also Cruz-Queipo v. Hospital Espano Auxilio, 417 F.3d 67, 70 (1st Cir. 2005); Correa v. Hospital San Francisco, 69 F.3d 1184, 1190 (1st Cir. 1995), cert. denied, 517 U.S. 1136, 116 S.Ct. 1423, 134 L.Ed.2d 547 (1996); Colon v. Hospital Dr. Pila, 330 F.Sup.2d 38, 42 (D.P.R. 2004); Ahmad v. Manchester Memorial Hospital, Superior Court, judicial district of Hartford, Docket No. CV 03 0824672 (August 6, 2004, Sheldon, J.). "An EMTALA violation thus arises when a hospital either fails to adequately screen a patient, or discharges or transfers the patient without first stabilizing his emergency medical condition." Kizzire v. Baptist Health System, Inc., supra, 1310.
The operative language of § 1395dd(a) for present purposes is that a hospital "must provide for an appropriate medical screening examination within the capability of the hospital's emergency department . . . to determine whether or not an emergency medical condition . . . exists." "A hospital fulfills its statutory duty to screen patients in its emergency room if it provides for a screening examination reasonably calculated to identify critical medical conditions that may be afflicting symptomatic patients and provides that level of screening uniformly to all those who present substantially similar complaints . . . The essence of this requirement is that there be some screening procedure, and that it be administered even-handedly." (Citations omitted; internal quotation marks omitted.) Correa v. Hospital San Francisco, supra, 69 F.3d 1192. "The emergency-room physician is required by EMTALA to screen and treat the patient for those conditions the physician perceives the patient to have." (Internal quotation marks omitted.) Hunt ex rel. Hunt v. Lincoln Memorial Hospital, 317 F.3d 891, 894 (8th Cir. 2003).
"EMTALA is implicated only when individuals who are perceived to have the same medical conditions receive disparate medical treatment. It is not implicated whenever individuals who turn out, in fact, to have had the same condition receive disparate treatment. The cornerstone of an EMTALA claim is the disparate treatment of individuals perceived to have the same conditions." (Internal quotation marks omitted.) McIver v. Hospital of St. Raphael, Superior Court, judicial district of New Haven, Docket No. CV 98 0414154 (June 7, 1999, Licari, J.). "Under [ 42 U.S.C. § 1395dd(a)], the appropriateness of the medical screening examination afforded to the individual seeking examination or treatment is to be measured not by what the standard of care requires but by what the hospital itself routinely provides to others who present for examination or treatment in a similar manner in light of the capabilities of the hospital's own emergency department." (Emphasis in original.) Ahmad v. Manchester Memorial Hospital, supra, Superior Court, Docket No. CV 03 0824672.
The United States Court of Appeals has recognized this "disparate treatment" requirement in holding that: "An inappropriate screening examination is one that has a disparate impact on the plaintiff. Patients are entitled under EMTALA, not to correct or non-negligent treatment in all circumstances, but to be treated as other similarly situated patients are treated, within the hospital's capabilities." (Internal quotation marks omitted.) Hunt ex rel. Hunt v. Lincoln Memorial Hospital, supra, 317 F.3d 894; see Vickers v. Nash General Hospital, Inc., 78 F.3d 139, 144 (4th Cir. 1996) ("disparate treatment of individuals perceived to have the same condition is the cornerstone of an EMTALA claim"); see also Phillips v. Hillcrest Medical Center, 244 F.3d 790, 797 (10th Cir. 2001), cert. denied, 535 U.S. 905, 122 S.Ct. 1203, 152 L.Ed.2d 142 (2002) ("EMTALA is measured by whether it treats every patient perceived to have the same medical condition in the same manner. `Disparate treatment' is simply another term for describing or measuring a hospital's duty to abide by its established procedures"); Summers v. Baptist Medical Center Arkadelphia, 91 F.3d 1132, 1138 (8th Cir. 1996) ("An inappropriate screening examination is one that has a disparate impact on the plaintiff").
The operative language of 42 U.S.C. § 1395dd(b)(1)(A) and (B) for the present purposes is that "[i]f any individual . . . comes to a hospital and the hospital determines that the individual has an emergency medical condition, the hospital must provide either . . . for such further medical examination and such treatment as may be required to stabilize the medical condition . . . or for transfer of the individual to another medical facility . . ." "[T]o recover for violations of EMTALA's [stabilization and] transfer provisions, the plaintiff must present evidence that (1) the patient had an emergency medical condition; (2) the hospital actually knew of that condition; (3) the patient was not stabilized before being transferred [or discharged]; and (4) prior to transfer of an unstable patient, the transferring hospital did not obtain the proper consent or follow the appropriate certification and transfer procedures." Baber v. Hospital Corp. of America, 977 F.2d 872, 883 (4th Cir. 1992). "[The] court need not reach any questions about the nature of stabilization if [the court] determine[s] that the predicates to stabilization have not been satisfied." Reynolds v. MaineGeneral, 218 F.3d 78, 85 (1st Cir. 2000).
"Subsection (b) requires stabilization of only those conditions that a participating hospital has determined to be emergencies." Reynolds v. MaineGeneral, supra, 218 F.3d 85. EMTALA defines an "emergency medical condition" as "a medical condition manifesting itself by acute symptoms of sufficient severity . . . such that the absence of immediate medical attention could reasonably be expected to result in (i) placing the health of the individual . . . 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). The majority of the federal courts of appeals have decided a hospital cannot be held liable for conditions it does not detect. "The duty to stabilize does not arise unless the hospital has actual knowledge that the patient has an unstabilized medical emergency." (Emphasis added.) Battle v. Memorial Hospital at Gulfport, 228 F.3d 544, 558 (5th Cir. 2000). See Summers v. Baptist Medical Center Arkadelphia, supra, 91 F.3d 1140 (no duty to stabilize unless hospital "has actual knowledge of the individual's unstabilized emergency medical condition"). "[EMTALA] does not hold hospitals accountable for failing to stabilize conditions of which they are not aware, or even conditions of which they should have been aware." Vickers v. Nash General Hospital, Inc., supra, 78 F.3d 145. "[The Act] was not intended to guarantee proper diagnosis or to provide a federal remedy for misdiagnosis or medical negligence." (Internal quotation marks omitted.) Hardy v. New York City Health Hospitals Corp., 164 F.3d 789, 792 (2d Cir. 1999).
"Once a patient is found to suffer from an emergency medical condition, the hospital must give the patient treatment to stabilize that condition unless the patient can be transferred without danger of the patient's condition deteriorating." (Internal quotation marks omitted.) Tolton v. American Biodyne, Inc., 48 F.3d 937, 943 (6th Cir. 1995). EMTALA defines "transfer" to include the discharge of a patient. 42 U.S.C. § 1395dd(e)(4). The term "to stabilize" is defined by the statute as "to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility . . ." 42 U.S.C. § 1395dd(e)(3)(A). "The statutory definition of `stabilize' requires a flexible standard of reasonableness that depends on the circumstances." Cherukuri v. Shalala, 175 F.3d 446, 454 (6th Cir. 1999). See also Deberry v. Sherman Hospital Ass'n., 741 F.Sup. 1302, 1305 (D.Ill. 1990) ("[T]he definition . . . asks whether the medical treatment . . . was reasonable under the circumstances"); Baber v. Hospital Corp. of America, supra, 977 F.2d 883 ("Analysis by hindsight is not sufficient to impose liability under EMTALA").
"To establish an EMTALA violation, a plaintiff must show that (1) the hospital is a participating hospital, covered by EMTALA, that operates an emergency department (or an equivalent treatment facility); (2) the patient arrived at the facility seeking treatment; and (3) the hospital either (a) did not afford the patient an appropriate screening in order to determine if [the patient] had an emergency medical condition, or (b) bade farewell to the patient (whether by turning [the patient] away, discharging [the patient], or improvidently transferring [the patient]) without first stabilizing the emergency medical condition." Correa v. Hospital San Francisco, supra, 69 F.3d 1190.
In the present case, the plaintiff does not sufficiently allege a claim of negligence per se under EMTALA because count three fails to set forth predicate facts necessary to support such a claim. Here, the plaintiff alleges that the decedent went to an LM facility, which had executed Medicare Provider Agreements with the federal government pursuant to 42 U.S.C. § 1395cc, with a chief complaint of chest pain accompanied by numbness in his left arm. The plaintiff further alleges that the decedent was examined and treated by Alper, who ordered an electrocardiogram and took the decedents's blood pressure. The plaintiff alleges that LM violated the "appropriate screening" requirement of EMTALA when it failed to perform STAT serial cardiac enzymes and troponin level. The plaintiff further alleges that LM violated the "stabilization" and "transfer" requirements of EMTALA when it failed to provide emergency treatment to stabilize the decedent's myocardial infarction; when it failed to obtain a STAT consultation from a cardiologist; when it failed to admit the decedent to LM for such further medical examination and such treatment as might be required to stabilize his medical condition; and when it failed to arrange for transfer of the decedent to another medical facility which could treat him appropriately.
What has not been alleged is that the decedent received disparate treatment, in that the screening provided to the decedent was applied differently to the decedent than to patients with similar conditions. As noted previously, "[t]he cornerstone of an EMTALA claim is the disparate treatment of individuals perceived to have the same conditions." (Internal quotation marks omitted.) McIver v. Hospital of St. Raphael, supra, Superior Court, Docket No. CV 98 0414154. Furthermore, it has not been alleged that the decedent was suffering from an emergency medical condition or that LM had actual knowledge of this emergency medical condition that would trigger the need for it to stabilize and/or transfer him. "The duty to stabilize does not arise unless the hospital has actual knowledge that the patient has an unstabilized medical emergency." (Emphasis added.) Battle v. Memorial Hospital at Gulfport, supra, 228 F.3d 558. As stated above, the court in Reynolds v. MaineGeneral, supra, 218 F.3d 85, held that "[the] court need not reach any questions about the nature of stabilization if [the court] determine[s] that the predicates to stabilization have not been satisfied."
In paragraph 11 of count three, the plaintiff alleges that, "[o]n December 17, 2006, [Dr. Alper] made an incorrect diagnosis of atypical chest pain of musculoskeletal origin." Whether Alper was correct in his diagnosis may be appropriate in the context of medical malpractice but is not relevant for purposes of EMTALA. "[EMTALA] was not intended to guarantee proper diagnosis or to provide a federal remedy for misdiagnosis or medical negligence." (Internal quotation marks omitted.) Hardy v. New York City Health Hospitals Corp., supra, 164 F.3d 792.
For all of the foregoing reasons, the plaintiff has failed to sufficiently allege the necessary elements of a claim pursuant to EMTALA within the four corners of the complaint. Accordingly, the motion to strike count three of the plaintiff's second amended complaint is granted.