Opinion
Civil Action No. 01-2021-CM
July 25, 2002
MEMORANDUM AND ORDER
Plaintiffs have sued defendant Salina Regional Health Center (SRHC) pursuant to the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd. Plaintiffs also have asserted a cause of action against defendants Harley Calvin, D.O. and Paul Jaster, M.D. for medical negligence under state law. This matter is before the court on defendant SRHC's Motion for Summary Judgment (Doc. 82) and defendant Jaster's Motion to Exclude Expert Testimony (Doc. 137).
The court construes the facts in the light most favorable to plaintiff as the non-moving party pursuant to Fed.R.Civ.P. 56.
In 1999, Justin Nelson, a five-month old infant, was taken to the emergency room at SRHC and examined by defendant Harley Calvin, D.O. After being discharged from the hospital, Justin Nelson died approximately twelve hours later of fulminant meningoccemia. Plaintiffs allege that SRHC violated the EMTALA by failing to provide appropriate medical screenings and treatment as required to stabilize Justin Nelson's condition.
On August 10, 2001, plaintiffs filed their expert witness disclosures pursuant to the court's scheduling order. The disclosure identified three medical experts: Dr. Richard Frires, Dr. Stanford Shulman, and Dr. James Todd. Defendant SRHC argues that plaintiffs have failed to designate any expert witness who will testify that defendant SRHC or any of its nurses failed to follow its own standard screening procedures in violation of the EMTALA.
Defendant SRHC's Motion for Summary Judgment Summary Judgment Standards
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut"; rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
Discussion
The EMTALA was enacted to combat the hospital practice of "dumping" indigent patients in need of emergency medical treatment and was designed to ensure an adequate first response to a medical crisis for all patients. To achieve this purpose, the statute creates a cause of action against hospitals which fail to appropriately screen or stabilize patients. Thus, under the EMTALA, a hospital has two primary obligations. Ingram v. Muskogee Reg'l Med. Ctr . , 235 F.3d 550, 551 (10th Cir. 2000). First, the hospital must conduct an initial medical examination to determine whether the patient is suffering from an emergency medical condition. 42 U.S.C. § 1395dd(a); Abercrombie v. Osteopathic Hosp. Founders Ass'n , 950 F.2d 676, 680 (10th Cir. 1991). Under § 1395(a), hospitals are obliged to create standard emergency room screening procedures based upon the hospitals' particular needs and circumstances. Repp v. Anadarko Mun. Hosp . , 43 F.3d 519, 522 (10th Cir. 1994). In resolving failure to screen claims under the EMTALA, "[a] court should ask only whether the hospital adhered to its own procedures, not whether the procedures were adequate if followed." Id . at 522 n. 4. Second, the hospital is required, if an emergency medical condition exists, to stabilize the patient before transporting him or her elsewhere. 42 U.S.C. § 1395dd(b)(1)(A); Urban v. King , 43 F.3d 523, 525 (10th Cir. 1994). In considering a failure to stabilize claim, the court takes the actual diagnosis as a given, "'only obliging hospitals to stabilize conditions that they actually detect.'" Tank v. Chronister , 941 F. Supp. 969, 972 (D.Kan. 1996) (quoting Vickers v. Nash Gen. Hosp . , 78 F.3d 139, 144 (4th Cir. 1996)).
The court is reminded that the EMTALA is "neither a malpractice nor a negligence statute." Repp , 43 F.3d at 522. The statute does not authorize an action against a hospital for misdiagnosis; rather, a claim alleging misdiagnosis remains a matter for state malpractice law. Tank , 941 F. Supp. at 972. Thus, inserting into EMTALA an action for violation of standard medical procedures for patients admitted and treated for several hours would convert the statute "into a federal malpractice statute, something it was never intended to be." Id . (quoting Hussain v. Kaiser Found. Health Plan , 914 F. Supp. 1331, 1335 (E.D.Va. 1996)).
Defendant SRHC argues that plaintiffs have failed to designate any expert witness in support of their EMTALA claim and that, as result, defendant SRHC is entitled to summary judgment. Specifically, defendant SRHC contends that plaintiffs have not designated any expert witness who will testify that defendant SRHC failed to follow its standard screening procedures.
Defendant SRHC has in effect certain policies and procedures regarding the treatment of patients admitted to its emergency department. SRHC's triage policy requires a triage nurse to complete an "assessment/interview" of each patient and "[o]btain a complete set of vital signs as per protocols." (SRHC Emergency Department Policies and Procedures-Triage, pg. 2). SRHC also has a policy setting forth the items its triage nurses must document. (SRHC Emergency Department Policy and Procedure-Emergency Department Nurse's Clinical Record). That policy mandates that all starred items (*) "must be completed on all emergency patients." (Id. at 1). One relevant starred item states that a triage nurse must "[d]ocument vital signs, Sp02, 02 . . . if appropriate." (Id. at 3). One relevant item not starred is the directive to "[d]ocument orthostatic blood pressures." (Id. at 3). At issue in plaintiffs' EMTALA claim is whether defendant SRHC followed its own medical screening policies when it failed to obtain Justin Nelson's blood pressure and pulse oxygen level.
Defendant SRHC argues that plaintiffs' three designated expert witnesses have set forth opinions only as to the standard of care and causation issues. In reviewing plaintiffs' expert witness disclosures, the court is guided by Federal Rule of Civil Procedure 26(a)(2)(B), which provides that an expert's written report "shall contain a complete statement of all opinions to be expressed and the basis and reasons therefore." The failure to disclose a report meeting the requirements of Rule 26(a)(2)(B) may preclude that witness from testifying as to specific opinions not disclosed in the report. Fed, R. Civ. P. 37(c)(1); Brandt Distrib. Co., Inc. v. Fed. Ins. Co . , 247 F.3d 822 (8th Cir. 2001).
Foremost, the court notes that, in these circumstances, expert testimony is necessary to ascertain whether defendant SRHC violated its policies and procedures. In some cases, it may be within the common knowledge of lay people to determine whether a hospital violated its policies and procedures. However, in this case, there are questions regarding whether defendant SRHC's policies, in the absence of specific direction, require certain measurements to be obtained. For example, because the policies do not define a "complete set of vital signs," expert testimony is necessary to determine which vital signs are included under the policy. Similarly, defendant SRHC's policies only require a pulse oxymetry to be obtained "if appropriate." A lay person would likely be unable to determine, without the assistance of expert testimony, when obtaining a pulse oxymetry is appropriate. Thus, plaintiffs must provide expert testimony on this issue to survive summary judgment.
The court must therefore determine whether plaintiffs have met the expert disclosure requirements regarding the issue of whether defendant SRHC followed its medical screening procedures. Dr. Frires's expert reported states in pertinent part:
In my opinion, the care rendered to Justin Nelson by Drs. Calvin and Jaster was not appropriate and failed to meet the standard of care for emergency medicine. Drs. Calvin and Jaster did not find an explanation for Justin's high fever and change in behavior. No focus of infection was found and complete testing necessary to search for a focus was not done. Justin presented with a very highly abnormal pulse rate. This should immediately cause any prudent physician to suspect sepsis or shock from the onset. This finding requires immediate evaluation for arrhythmia by EKG, and demands obtaining a complete set of vital signs, including blood pressure. Because of Justin's abnormal clinical findings, the standard of care requires a search for a focus of infection. (Dr. Richard Frires Expert Report, pgs. 2-3). In Dr. Shulman's expert report, he states, "I am of the opinion that the medical care provided to Justin Nelson on January 16, 1999, in the emergency room by Dr. Harley Colvin[sic] and Dr. Paul Jaster did not meet the standard of care, in that no investigation of the severe tachycardia and only an incomplete evaluation for the source of high fever was performed." (Dr. Stanford Shulman Expert Report, pg. 1). Finally, Dr. Todd's expert report states in relevant part, "In my opinion, within a reasonable degree of medical probability, that if antibiotics had been initiated at the time of the morning emergency department visit, and an appropriate medical transfer to an intensive care facility had been made, that in all likelihood the child would have survived." (Dr. James Todd Expert Report, pg. 1).
All three experts set forth in their reports the specific documents they reviewed in preparing their reports. Nowhere in any of the reports do plaintiffs' experts state that they reviewed defendant SRHC's policies and procedures or relied on those policies and procedures in forming the opinions that serve as the basis for their reports. In fact, Dr. Frires and Dr. Shulman were not provided with a copy of defendant SRHC's policies until October 8, 2001, over one year after Dr. Frires prepared his expert report and three months after Dr. Shulman prepared his expert report. In addition, none of the experts espoused any opinions as to any violation of the EMTALA or any failure to properly follow medical screening procedures. While Dr. Todd mentioned in his report that an appropriate medical transfer to an intensive care facility should have been made, he has since testified in deposition that he does not intend to offer any opinions critical of defendant SRHC at trial.
Most significant to the court is the fact that the expert reports do not contain any opinions regarding defendant SRHC. Rather, Dr. Frires and Dr. Shulman both espouse opinions specifically regarding defendants Jaster and Calvin's deviation from the standard of care and their failure to perform a complete examination of Justin Nelson. Neither defendant Jaster nor Calvin was an employee of defendant SRHC, and nowhere did plaintiffs' experts offer opinions that defendant SRHC, its nurses, or its employees failed to follow medical screening policies. This is especially significant in light of the fact that the policies and procedures at issue here pertain specifically to the duties of the triage nurse. Thus, the court concludes that plaintiffs' disclosure pursuant to Federal Rule of Civil Procedure 26(a)(2)(B) did not identify any expert witness who will testify defendant SRHC failed to follow its standard screening procedures and that such expert testimony, in this case, is necessary. On this basis alone, the court finds that defendant SRHC is entitled to summary judgment.
The court also finds that, even if plaintiffs later verbally disclosed such expert testimony, that disclosure was untimely and defendant SRHC was prejudiced as a result. Defendant SRHC proffers that, based on the experts' reports as written, it had opted not to incur the costs of attending the depositions of plaintiffs' experts. However, after the deadline for expert disclosures had passed, plaintiffs apparently indicated at a pre-trial hearing that they anticipated their experts to render opinions that defendant SRHC violated the EMTALA. Defendant SRHC states that, for this reason, its counsel traveled to Chicago, Denver, and twice to Cleveland to attend the depositions of these experts. Defendants contend that adequate preparation for the experts' depositions, in the absence of a complete expert report rendering opinions as to defendant SRHC, was difficult because counsel was left to guess about what the experts might say. Moreover, when opinions regarding defendant SRHC were elicited in deposition, counsel for SRHC was restrained from effective cross-examination because there was no prior opportunity to prepare or research medical literature on the specific issues. The court concludes that plaintiffs' untimely disclosure was prejudicial to defendant SRHC and that any such expert opinions are barred. Accordingly, because plaintiffs cannot present expert testimony that defendant SRHC failed to follow its standard screening procedures, defendant SRHC is awarded summary judgment.
Counsel for SRHC lodged a continuing objection in Dr. Frires's deposition to any statements made concerning a violation of EMTALA by SRHC not specifically referenced in his report.
The court notes that plaintiffs also allege that defendant SRHC violated the EMTALA by discharging Justin Nelson from the emergency department without his emergency medical condition being stabilized. Neither Dr. Frires nor Dr. Shulman's expert reports contain opinions regarding the decision to discharge Justin Nelson. In Dr. Todd's expert report, he addressed the issue of the appropriateness of a medical transfer. However, Dr. Todd never asserted in his report that defendant SRHC, its nurses, or any of its employees should have transferred Justin Nelson. More significantly, Dr. Todd has since stated that he does not intend to render any opinions regarding defendant SRHC's conduct or liability. As such, the court finds that plaintiffs' have failed to offer any expert testimony on the issue of whether Justin Nelson should have been discharged.
In sum, the court determines that plaintiffs have failed to produce expert testimony on the issue of whether defendant SRHC failed to follow its standard screening procedures or whether defendant SRHC discharged Justin Nelson without first stabilizing his condition. Thus, plaintiffs cannot, as a matter of law, establish a violation of the EMTALA on the part of defendant SRHC.
Motion to Exclude Expert Testimony William Clark, Ph.D.
Defendant Jaster moves to exclude the testimony of economist William Clark, Ph.D. on the basis that Dr. Clark's expert testimony fails to meet the requirements of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm ., 509 U.S. 579, 591 (1993). In response, plaintiffs concede that Dr. Clark's economic analysis does not meet those requirements. Accordingly, the court orders that the expert testimony of William Clark, Ph.D. be excluded from trial.
Stanford Shulman, M.D.
Plaintiffs have offered the expert testimony of Dr. Shulman to testify about whether defendants Jaster and Calvin deviated from the standard of care. Such expert testimony is governed by Kan. Stat. Ann. § 60-3412, which provides that an expert is not qualified to testify on the standard of care unless "at least 50% of such person's professional time within the two-year period preceding the incident giving rise to the action is devoted to actual clinical practice in the same profession in which the defendant is licensed." Defendant Jaster argues that Dr. Shulman has not spent at least 50% of his professional time in actual clinical practice and that, as a result, the testimony of Dr. Shulman should be excluded.
In support, defendant relies on Dr. Shulman's deposition testimony, wherein Dr. Shulman testified in relevant part:
Are you presently involved in clinical care?
Yes.
What percent of your time would you believe is devoted to clinical care?
Well, my time breaks down to about one-fourth administration, one-fourth research, and the other 50 percent devoted to clinical care and teaching. It's hard to separate those out because they are all done together.
Our Kansas courts have tried to separate it out a little bit suggesting clinical care is basically hands-on patient care. What percent would you say is hands-on patient care?
Well, all my hands-on patient care is done in the teaching context, so it would be in the 25 to — somewhere between that 25 to 50 percent range. I mean, because it's all — you know, I spent yesterday seeing lots of patients. I had medical students and residents and fellows with me at all times, so it was all devoted — it was all hand-on patient care in a teaching context.
And you do that once a week or once a month?
Well, it fluctuates. On balance it's in the 25 to 50 percent range of my time.
More than 25 but less than 50 percent, is that a fair statement?
Yes.
(Dr. Stanford Shulman Deposition, pgs. 37-38).
In Endorf v. Bohlender , 26 Kan. App. 2d 855, 865, 995 P.2d 896, 903 (2000), the Kansas Court of Appeals defined "actual clinical practice" as follows: "'Actual clinical practice' means patient care. However, patient care should not be limited to a physical presence or bedside requirement." The court further explained, "the practitioner of healing arts advising on, or addressing care for, a distant patient is engaged in actual clinical practice." Id .
In response to defendant Jaster's motion, Dr. Shulman prepared an affidavit, wherein he explained his clinical practice using the definition of "actual clinical practice" set forth in Endorf . In his affidavit, Dr. Shulman testified that much of his administrative work as a Professor of Pediatric Medicine and as the Chief of the Division of Infectious Diseases at Children's Memorial Hospital deals with consulting on specific patients for other physicians. Dr. Shulman also testified that, as the Chief of the Division of Infectious Diseases and as the Chairman of the Infection Control Committee at Children's Memorial Hospital, he spends considerable time related to infection control for patients at the hospital and that this work is patient-care related in that he advises and addresses care and precautions for specific patients. Finally, Dr. Shulman states that, as the Co-Director of the Microbiology Laboratory at Children's Memorial Hospital, he processes lab results for specific patients and does research for the disease process from which a patient may be suffering. Dr. Shulman asserts that, if the time he spends engaged in these activities is included, he spends between 55 percent and 70 percent of his professional time engaged in "actual clinical practice."
In determining whether to consider Dr. Shulman's affidavit, the court notes that contradictions found in a witness's testimony are not, in themselves, sufficient to preclude such testimony. Ralston v. Smith Nephew Richards, Inc. , 275 F.3d 965, 973 (10th Cir. 2001). Indeed, "an affidavit may not be disregarded [merely] because it conflicts with the affiant's prior sworn statements." Franks v. Nimmo , 796 F.2d 1230, 1237 (10th Cir. 1986). However, in assessing a conflict under these circumstances, "courts will disregard a contrary affidavit when they conclude that it constitutes an attempt to create a sham fact issue." Id . Factors relevant to the existence of a sham fact issue include whether the affiant was cross-examined during his earlier testimony, whether the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain. Id .
The court concludes that Dr. Shulman's affidavit does not constitute an attempt to create a sham issue. Rather, Dr. Shulman's affidavit appears to explain his earlier testimony wherein he may have been confused as to what job-related duties were included in the definition of "actual clinical practice." Moreover, Dr. Shulman's affidavit sets forth testimony based on his interpretation of Endorf , a copy of which he was provided only after he was deposed. The court will consider Dr. Shulman's affidavit.
The court finds that, based upon the additional testimony of Dr. Shulman, at least 50 percent of Dr. Shulman's time is devoted to actual clinical practice. Accordingly, defendant Jaster's motion to exclude the expert testimony of Dr. Shulman is denied.
IT IS THEREFORE ORDERED that defendant SRHC's Motion for Summary Judgment (Doc. 82) is granted. Defendant SRHC is hereby dismissed from this action.
IT IS FURTHER ORDERED that defendant Dr. Paul Jaster's Motion to Exclude Expert Testimony (Doc. 137) is granted as to Dr. Will Clark, and denied as to Dr. Stanford Shulman.