Opinion
Civil No. 02-2072 (PG).
June 30, 2004
MAGISTRATE-JUDGE'S REPORT AND RECOMMENDATION
The plaintiffs filed a complaint on July 15, 2002, pursuant to the Emergency Medical Treatment and Active Labor Act (hereafter "EMTALA"), 42 U.S.C. § 1395dd. The plaintiffs also invoke supplemental jurisdiction based upon Articles 1801 and 1802 of the Civil Code of Puerto Rico, 31 P.R. Laws Ann. §§ 5141 and 5142, as well as Articles 20.01 and 20.03 of the Insurance Code of Puerto Rico, 26 P.R. Laws Ann. §§ 2001 and 2003 ( Docket No. 1). An amended complaint was filed on November 15, 2002 ( Docket No. 19). Suit is brought against various health care providers, medical facilities and insurance companies. Hospital Hermanos Meléndez (hereafter "Hospital Hermanos") moves for summary judgment, the same being opposed by plaintiffs ( Docket Nos. 53, 59). The motion was referred to the undersigned for report and recommendation ( Docket No. 79).
Co-defendant Grupo Empresas de Salud, Inc. ("GES") also filed a motion for summary judgment which remains pending ( Docket No. 62). On April 21, 2004, plaintiffs filed a motion withdrawing their opposition to GES' motion for summary judgment and advising the Court that the plaintiffs and co-defendant GES are in the process of circulating a joint motion to dismiss without prejudice the claims brought against this defendant (Docket No. 78).
II. Factual Background
A colonoscopy was performed on plaintiff Miguelina Falcón-Velásquez (hereafter "Falcón"), on February 1, 2001, by Dr. Octavio Jordán (hereafter "Dr. Jordán"). Def.'s Fact No. 2. After performing the procedure Dr. Jordán prescribed Falcón various medications including Cipro, an antibiotic, with instructions for Falcón to return in one week for a follow-up visit. Id. at No. 3. The next day Falcón presented to Dr. Jordán's office complaining of lower left quadrant pain. Id. at No. 5. Upon Falcon's examination, Dr. Jordán's found the patient with mild rebound in no distress, afebrile, and with a pulse of 84 and blood pressure of 110/70. Id. at No. 6. Dr. Jordán then referred Falcón to the emergency room. The emergency room referral states, "To: Consulting Physician" and in handwriting "Surgeon — ER-Stat." Def.'s II, p. 5.
Synthetic broad spectrum antimicrobial agents; indicated in the treatment of infections. Physicians' Desk Reference 839-841 (58th ed. 2004).
Falcón presented to the Emergency Room at Hospital Hermanos. The initial assessment indicated that Falcon's condition was considered a medical emergency, Category III, and that the patient had to be promptly evaluated by a physician. Def.'s Ex. II, p. 4. She was seen by a nurse at approximately 10:52 AM. Def.'s Ex. II, p. 1, Pls.' Ex. 7. Falcón's temperature then was 36.6, pulse 78, respiration and blood pressure 100/65. Id. Falcón disclosed a medical history of Crohn's disease and having undergone a colonoscopy the previous day. Id. She also provided a list of the medications she was currently taking, among which was Cipro. The record reflects that Dr. Jordán had referred Falcón to ER at the San Pablo Hospital and that at the time Dr. Jordán told Falcón that "the medical plan was not reliable." Id.
The emergency room record is in English. Neverthless both defendant and plaintiffs submitted translation of same. Hopsital Hermanos' translation states, "told pt. the medical plan was not reliable in San Pablo." Plaintiffs' translation states, "told patient the medical plan is not reliable." The undersigned has read the record and notes that the words after "reliable" are illegible.
While at the emergency room at Hospital Hermanos, Falcón was examined by Dr. Awilda Flores-Padró (hereafter "Dr. Flores"). Examination and physical findings indicated an acute ill patent, who was alert, conscious and pale. Id. Her abdomen was semi soft and looked globulus. There was exquisite tenderness to palpitation in the whole abdomen. Id. The diagnosis identified abdominal pain, rectosigmoid stricture by history and the fact a colonoscopy had been done.
The medical record reflects that at 12:30 PM Falcón was administered intravenously Zantac and Tigan and underwent some laboratory tests. Id. Next at 1:24 PM a PKUB upright was performed. Id. This test revealed a large amount of free air under the diaphragm compatible with pneumoperitoneum. Def.'s Ex. II, p. 9. There is a note in the record that states that Dr. Jordán changed the referral to either Hospital Hermanos or Hospital Menonita, but due to the identified condition of pneumoperitoneum Falcon was to be transferred to Centro Médico. Id.
Neither of these drug are antiobiotics. Physicians' Desk Reference 1493, 2102 (55th ed. 2001).
The presence of gas or air in the peritoneal cavity. Dorland's Illustrated Medical Dictonary 1466 (30th ed. 2003).
Following receipt of the x-ray examination results (PKUB), Dr. Flores determined that Falcón's condition warranted a referral for a surgical evaluation and she anticipated that Falcón would need surgical intervention. Def.'s Ex. III. Prior to calling a physician for a consult, Dr. Flores inquired with Hospital Hermanos' intensive care surgical unit and was advised that there was no available space for additional patients to be monitored. Id. Dr. Flores stated that the intensive care surgical unit is the unit that most likely Falcón would have required following an operation. Id. In order to expedite treatment Dr. Flores decided to order Falcon's transfer. Id.
Dr. FNU Cardona, a surgeon at Centro Médico, was called at 3:20 PM for consultation. Def.'s Ex. II, p. 1, Pls.' Ex. 7. Dr. Cardona did not order any additional treatment or medication for Falcón prior to having her transferred. Def.'s Ex. III. He agreed with the assessment done by Dr. Flores determining Falcon was a surgical patient and accepted the transfer so long as the patient was in stable condition. Id. Dr. Flores saw no need for a surgical consult by a Hospital Hermanos' surgeon as according to her there was no availability for post-operation treatment and eventually the patient would have had to be transferred. Id.
Documents from Hospital Hermanos indicate that both of their intensive care units were filled to capacity, but that beds were available in the surgery department. Def.'s Ex. V; IV(a), (b).
The Request and Consent for Transfer was signed by Miguel A. Falcón-Meléndez (hereafter "Mr. Falcón"), Falcón's father. Def.'s Ex. II, p. 12. The consent states that:
the benefits and risks of the transfer that were explained to me by the doctor, are the following: Surgical evaluation at tertiary Hospital with intensive care available — chronic case of Crohn's disease urgently requiring surgery due to actual condition (see DX) — risks inherent to travel.
I have made this decision freely and voluntarily, without any coercion from Hospital Hermanos Meléndez. . . .Id.
In his response to a request for admissions, Mr. Falcón states that Dr. Flores informed him that his daughter needed to be transferred to a different hospital but did not offer any reasons for the transfer. Pls.' Ex. 5. Mr. Falcón states that Dr. Flores also asked him if he had $60 to pay for the transfer and he told her that he did not have the money. Id. Mr. Falcón assures that when he asked Dr. Flores if his daughter needed the transfer, she did not respond. Id. Next, Mr. Falcón stated that Dr. Flores left and when she returned she indicated that the hospital would pay the $60 for the transfer if Mr. Falcón would sign the transfer form which he did. Id. Mr. Falcón states that he was not explained anything about the transfer other than to be asked to sign the document so that the hospital would pay for the transfer. Id. He also states that while he signed the transfer form, he did not request that his daughter be transferred. Id. Also, he further states that he was not told of his daughter's condition until they arrived at Centro Médico at which time he was told that his daughter's intestines were perforated. Id.
The transfer sheet refers to Falcón's condition as of 4:30 PM. Def.'s Ex. II, p. 10. At that time the vital signs registered were: temperature of 36.7, pulse of 74, respirations of 18 and blood pressure 100/60. Id. Falcón looked acutely ill but had stable vital signs. Id. The Medical Certification of the Transfer states that "Patient needs surgical evaluation. Due to her condition of Crohn's Disease she possibly needs intensive care after surgery — we do not have available. Inherent risks at transfer commented [sic]. Id. at p. 11. The medical services provided to Falcón at Hospital Hermanos were paid for by her husband's medical insurance provider — Humana Reform." Def.'s Ex. V.
The medical records further reflect that the ambulance was called at 4:25 PM. Id. Falcón was transported to Centro Médico at 5:10 PM and arrived there at 6:55 PM. Id.; Def.'s Ex. VI(a). At Centro Medico it was determined that she was a "yellow" priority. Def.'s Ex. VI(a). Examination indicated that her temperature was 36.5, pulse 83, respiration 20, and blood pressure 106/68. Id. She was evaluated by a surgeon at 9:30 PM and at 10:00 PM was administered IV antibiotic medication. Def.'s Ex. VI(b), (c). Surgery was performed on her at approximately 11:00 PM. Def.'s Ex. VI(e).
II. Analysis
Hospital Hermanos moves for summary judgment on the basis that the cause of action against it does not state a claim pursuant to EMTALA, but rather alleges a typical malpractice claim. More so, it contends that Falcón received appropriate medical screening and treatment, she was transferred to Centro Médico because the intensive care units at the hospital were filled to capacity and she was transferred in a stable condition, all in compliance with EMTALA. Finally, it notes that the services provided at Hospital Hermanos were billed to her and paid by her husband's medical plan, Humana Reform.
Conversely, the plaintiffs contend that there remains a genuine issue of material fact as to whether Falcón was stabilized prior to her transfer, whether her parents were informed of the reasons for the transfer, whether the benefits and risks of the transfer were explained to Falcón's parents, whether "dumping" occurred, whether Falcón and her parents were given an explanation of her medical condition and the reasons or need for the transfer and whether Falcón suffered an economically motivated dumping.
A. Legal Standard: Summary Judgment
A motion for summary judgment is appropriate when "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 judgment as a matter of law." Fed.R.Civ.P. 56(c); Wolf v. Gruntal Co., 45 F.3d 524, 527 (1st Cir. 1995); National Amusements, Inc., v. Dedham, 43 F.3d 731, 735 (1st Cir. 1995). The First Circuit delineated the manner in which Federal Rule of Civil Procedure 56, functions:
Once a properly documented motion has engaged the gears of Rule 56, the party to whom the motion is directed can shut down the machinery only by showing that a trialworthy issue exists. As to issues on which the summary judgment target bears the ultimate burden of proof, she cannot rely on an absence of competent evidence, but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute. Not every factual dispute is sufficient to thwart summary judgment; the contested fact must be "material" and the dispute over it must be "genuine." In this regard, "material" means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant. By like token, "genuine" means that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party.McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995) (citations and some internal punctuation marks omitted).
The Court "must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor." Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). While carrying out that task, the Court safely can ignore "conclusory allegations, improbable inferences, and unsupported speculation." Suárez v. Pueblo Intern., Inc., 229 F.3d 49, 53 (1st Cir. 2000) (quoting Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)).
Once a movant has made a preliminary showing that there exists no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law, the nonmovant bears the burden to show the existence of a genuine material issue, J. Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, 1251 (1st Cir. 1996), and must "produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue." Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (citation and internal punctuation omitted); Fed.R.Civ.P. 56(e). The non-movant cannot meet this burden by mere allegation or denial of the pleadings. Fed.R.Civ.P. 56(e). Nor can the nonmoving party avoid summary judgment by relying on conclusory allegations, improbable inferences, unsupported speculation, or "[b]rash conjecture coupled with the earnest hope that something concrete will materialize." J. Geils Band Employee Benefit Plan, 78 F.3d at 1251 (quoting Dow v. United Bhd. of Carpenters, 1 F.3d 56, 58 (1st Cir. 1993)). "As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party." In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (citation and internal punctuation omitted)."If no genuine issue of material fact emerges from this perscrutation, then the case may be ripe for summary adjudication." Suárez, 229 F.3d at 53.
B. Legal Standard: EMTALA
EMTALA is designed to assure that any person visiting a covered hospital's emergency room is screened for an emergency medical condition and is stabilized if such a condition exists. Del Carmen Guadalupe v. Negrón-Agosto, 299 F.3d 15, 19 (1st Cir. 2002). The EMTALA statute is composed of three parts. Part (a) imposes a duty to triage. "This duty takes the form of a requirement that a covered hospital perform an `appropriate screening examination' on `any individual' who `comes to the emergency department' seeking examination or treatment." López-Soto v. Hawayek, 175 F.3d 170, 172-73 (1st Cir. 1999) (quoting 42 U.S.C. § 1395dd(a)). Part (b) emphasizes the patient's stabilization. "If `any individual . . . comes to a hospital and the hospital determines that the individual has an emergency medical condition,' the hospital must try to stabilize that condition, and can shift the patient to another institution only in accordance with EMTALA's transfer provisions." Id. at 173 (quoting 42 U.S.C. § 1395dd(b)). Part (c) is relevant to parts (a) and (b) inasmuch as it provides that "`[i]f an individual at a hospital has an emergency medical condition which has not been stabilized . . ., the hospital may not transfer the individual' save upon compliance with certain stipulated conditions." Id. (quoting 42 U.S.C. § 1395dd(c)).
1. Screening
Hospital Hermanos contends that there is no controversy as to the fact that it appropriately screened Falcón. It points to the various tests performed and the medications administered. Indeed this issue is not in dispute, inasmuch as plaintiffs admit that "it is undisputed that in this case the hospital duly screen[ed] Miguelina's condition." Docket No. 59, p. 7, Plaintiffs' Memorandum of Law in Opposition to Motion for Summary Judgment. Plaintiffs go on to note that, "after discovery of the pneumoperitoneum condition in the x-rays of Miguelina, Dr. Flores at Hermanos Meléndez accurately diagnosed an abdominal perforation and stressed the expedited need for surgery." Plaintiffs contend that once Dr. Flores determined that Falcón had a medical emergency condition, said diagnosis triggered the remaining duties to stabilize or to duly transfer an unstable patient pursuant to EMTALA. Accordingly, the undersigned addresses the issues of stabilization and transfer as set forth in the EMTALA.
2. Stabilization
As a corollary to the right to be appropriately screened, EMTALA guarantees patients the right, if an emergency medical condition is determined to exist, to have that condition stabilized before discharge or transfer to another hospital. Plaintiffs contend Hermanos Meléndez did not comply with this provision. The statute provides, in pertinent part:
If any individual . . . comes to a hospital and the hospital determines that the individual has an emergency medical condition, the hospital must provide either —
(A) within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition, or
(B) for transfer of the individual to another medical facility in accordance with subsection (c).42 U.S.C. § 1395dd(b)(1).
The duty to stabilize applies "regardless of how that person enters the institution or where within the walls she may be" when the hospital determines that the patient is suffering an emergency condition. López-Soto, 175 F.3d at 173. The EMTALA defines an emergency medical condition as:
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 . . . 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).
"Once the hospital makes the determination that the patient is suffering from an emergency condition, the hospital must provide reasonable treatment to stabilize the patient's emergency situation before discharging or transferring him or her." Torres-Otero v. Hospital General Menonita, 115 F. Supp.2d 253, 259 (D.P.R. 2000). The duty to stabilize is activated only if the hospital uncovers an emergency medical condition, see López-Soto, 175 F.3d at 172; Marrero v. Hospital Hermanos Meléndez, Inc., 253 F. Supp.2d 179, 198 (D.P.R. 2003), and applies only in the context of patients who are discharged or transferred to another hospital. See Harry v. Marchant, 291 F.3d 767, 771 (11th Cir. 2002); Correa v. Hospital San Francisco, 69 F.3d 1184, 1190 (1st Cir. 1995) ("To establish an EMTALA violation, a plaintiff must show that . . . the hospital bade farewell to the patient (whether by turning her away, discharging her, or improvidently transferring her) without first stabilizing the emergency medical condition."); Marrero, 253 F. Supp.2d at 198 (D.P.R. 2003) ("A hospital violates its duty to stabilize under EMTALA when it fails to stabilize a patient before transferring or discharging him or her."); Torres Otero, 115 F. Supp.2d at 260 ("[T]he duty to stabilize exists not in a vacuum, but rather in reference to a transfer of the patient from the hospital.").
EMTALA defines "to stabilize", as follows: 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). When determining whether a patient has been stabilized, "the fact-finder must consider whether the medical treatment and subsequent release were reasonable in view of the circumstances that existed at the time the hospital discharged or transferred the individual." Marrero, 253 F. Supp.2d 179 (quoting Torres-Otero, 115 F. Supp.2d at 259.). This analysis focuses not "on the result of the plaintiff's condition after the release, but rather on whether the hospital would have considered another patient in the same condition as too unstable to warrant his or her release or transfer." Torres Otero, 115 F. Supp.2d at 260-61; accord Marrero, 253 F. Supp.2d at 197. Under this standard of reasonable and uniform treatment, courts have confined both the breadth and duration of the duty to stabilize under EMTALA. See, e.g., López-Soto, 175 F.3d at 177 n. 4 (noting that imposing a duty to stabilize without duration limitations "might well encroach upon the province of state malpractice law.") (dicta); Bryan v. Rectors Visitors of Univ. of Va., 95 F.3d 349, 352 (4th Cir. 1996) ("It seems evident to us that the stabilization requirement was intended to regulate the hospital's care of the patient in the immediate aftermath of the act of admitting her for emergency treatment and while it considered whether it would undertake longer-term full treatment or instead transfer the patient to a hospital that could and would undertake the treatment."); Burditt v. United States Dep't of Health Human Services, 934 F.2d 1326, 1370 n. 8 (5th Cir. 1991) ("One may prove that a hospital has violated this standard by presenting evidence that something other than the present or projected medical needs of its patients determined the treatment provided.").
More so, it is well-established that the imposition of the duty to stabilize patients with emergency medical conditions neither transformed EMTALA into a federal malpractice statute nor incorporated the usual negligence standards of medical malpractice to determine EMTALA violations. See Reynolds v. MaineGeneral Health, 218 F.3d 78, 83 (1st Cir. 2000). See, e.g., Marchant, 291 F.3d at 774 ("By mandating treatment only in the context of a patient transfer, the stabilization requirement addresses Congress' concern regarding rejection of patients without converting EMTALA into a federal malpractice statute."); Bryan, 95 F.3d at 351 ("Once EMTALA has met the purpose of ensuring that a hospital undertakes stabilizing treatment for a patient who arrives with an emergency condition, the patient's care becomes the legal responsibility of the hospital and the treating physicians. And the legal adequacy of that care is then governed not by EMTALA but by the state malpractice law.").
Plaintiffs argue that a genuine dispute of material fact exists as to whether Hospital Hermanos stabilized Falcón prior to having her transferred her to Centro Médico. Hospital Hermanos contends that additional or in-transit treatment was not ordered because Falcón was stable, she was not critically ill and she was receiving oral antibiotic treatment. More so, it argues that Dr. Cardona, the consulting surgeon, was fully informed of Falcón's condition and he did not order any in-transit treatment or medication prior to the transfer to Centro Médico. Hospital Hermanos takes exception to plaintiffs' position that, because intravenous antibiotics were not ordered while Falcón was at Hospital Hermanos, she was not properly stabilized prior to her transfer to Centro Médico.
Nevertheless, plaintiffs argue that Hospital Hermanos failed to stabilize Falcón's obvious emergency condition. In support of their position, plaintiffs have submitted as exhibits, expert witness opinions that Hospital Hermanos failed to stabilize Falcón. Plaintiffs note that Hospital Hermanos failed to provide any opinion, expert or otherwise to support its contention that Falcón was stable upon transfer. Hospital Hermanos, however, submitted the emergency room medical records in support of its position.
The evidence before the Court indicates that at 4:30 PM when Dr. Flores at Hermanos Meléndez made her final evaluation, she noted that Falcón looked acutely ill, but that her vital signs were stable. There is no other indication that Falcón was stable. Interestingly, the Transfer Sheet contains a "Medical Certification of the Transfer" with wording similar to the one in § 1395dd(c)(1)(ii) regarding individuals to be transferred who have not been stabilized. The statute reads as follows:
(c) Restricting transfers until individual stabilized
(1) Rule
If an individual at a hospital has an emergency medical condition which has not been stabilized (within the meaning of subsection (e)(3)(B) of this section), the hospital may not transfer the individual unless —
(A)(ii) a physician (within the meaning of section 1395x(r)(1) of this title) has signed a certification that based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual and, in the case of labor, to the unborn child from effecting the transfer.42 U.S.C. § 1395dd(c)(1)(A)(ii) (Court's emphasis).
The Certification of the Transfer, states
Briefly explain the need for the transfer and based on the medical information available at the time of the transfer, how the medical benefits reasonably expected from the transfer to another hospital, overcome the risks of the transfer for the patient, or in the case of a woman in labor, to the unborn child.
Patient needs surgical evaluation. Due to her condition of Crohn's Disease she possibly needs intensive care after surgery — we do not have available.
Inherent risks at transfer commentd [sic].
Def.'s Ex. II, p. 11 (Court's emphasis).
When reading the two together it appears that the Medical Certificate of Transfer refers to a patient who has not been stabilized. This, however, is not for the Court to guess. Also, the expert medical reports provided by plaintiffs condradict Hospital Hermanos' position that Falcón was stable at the time of transfer. These reports indicate that in order to stabilize Falcón it was necessary that she be administered intravenous antibiotics, which was not done, and that the failure to do so upon a determination that she had pneumoperitoneum is a factor that aggravated her medical emergency.
While at first blush it appears that plaintiffs seem to have mingled a malpractice claim with the EMTALA claim, after reviewing pleadings and the facts, the undersigned is satisfied that the claim presented falls within the ambit of EMTALA . This is so inasmuch as the issue raised is the stabilization of a patient prior to transfer to another medical facility.
Because there is an issue of fact in dispute, at this time, summary judgment is inappropriate. Therefore, it is RECOMMENDED that Hospital Hermanos' motion for summary judgment on the issue that it stabilized the patient before discharge or transferred be DENIED, because there are material facts in controversy.
3. Transfer
Although Hospital Hermanos contends that Falcón was stable at the time of transfer, in the alternative it argues that even assuming Falcón was not stable, she was properly transferred pursuant to the safeguards established by EMTALA. Conversely, plaintiffs argue that Hospital Hermanos failed to comply with the EMTALA requirements.
The EMTALA statute which requires that the hospital or emergency room stabilize the patient before transferring her to another facility. Under 42 U.S.C. § 1395dd(c):
If an individual at a hospital has an emergency medical condition which has not been stabilized (within the meaning of subsection (e)(3)(B) of this section), the hospital may not transfer the individual unless —
(A)(i) the individual (or a legally responsible person acting on the individual's behalf) after being informed of the hospital's obligations under this section and of the risk of transfer, in writing requests transfer to another medical facility,
(ii) a physician (within the meaning of section 1395x(r)(1) of this title) has signed a certification that based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual and, in the case of labor, to the unborn child from effecting the transfer, or
(iii) if a physician is not physically present in the emergency department at the time an individual is transferred, a qualified medical person (as defined by the Secretary in regulations) has signed a certification described in clause (ii) after a physician (as defined in section 1395x(r)(1) of this title), in consultation with the person, has made the determination described in such clause, and subsequently countersigns the certification; and
(B) the transfer is an appropriate transfer.
An appropriate transfer is described as one:
(A) in which the transferring hospital provides the medical treatment within its capacity which minimizes the risks to the individual's health and, in the case of a woman in labor, the health of the unborn child;
(B) in which the receiving facility —
(i) has available space and qualified personnel for the treatment of the individual, and
(ii) has agreed to accept transfer of the individual and to provide appropriate medical treatment;
(C) in which the transferring hospital sends to the receiving facility all medical records (or copies thereof), related to the emergency condition for which the individual has presented, available at the time of the transfer, including records related to the individual's emergency medical condition, observations of signs or symptoms, preliminary diagnosis, treatment provided, results of any tests and the informed written consent or certification (or copy thereof) provided under paragraph (1)(A), and the name and address of any on call physician (described in subsection (d)(1)(C) of this section) who has refused or failed to appear within a reasonable time to provide necessary stabilizing treatment;
(D) in which the transfer is effected through qualified personnel and transportation equipment, as required including the use of necessary and medically appropriate life support measures during the transfer.42 U.S.C. § 1395dd((c)(2).
It is clear from the statute that only unstable patients require a certification and consent of the receiving hospital. Conversely, a patient who has been stabilized in the emergency room of the transferring hospital may be transferred to a receiving hospital without a certification, as described above, and without obtaining the express agreement of the receiving hospital. In other words, stabilized patients may be transferred without limitation under the language of the statute. Therefore, in order to prove a transfer violation, plaintiffs must show not only that the transferred patient was not stabilized and was not accepted by the receiving hospital, but also that the doctor was negligent in transferring the patient in the sense that, under the circumstances, "the physician knew or should have known that the benefits [of transfer] did not outweigh the risks." Cherukuri v. Shalala, 175 F.3d 446, 450 (6th Cir. 1999).
The undersigned previously determined that there remains an issue of fact whether Falcón was stable, as that term is defined under EMTALA, at the time of transfer. In reviewing the issue of stabilization with regard to transfer it has been stated that:
The stabilization requirement is thus defined entirely in connection with a possible transfer and without any reference to the patient's long-term care within the system. It seems manifest to us that the stabilization requirement was intended to regulate the hospital's care of the patient only in the immediate aftermath of the act of admitting her for emergency treatment and while it considered whether it would undertake longer-term full treatment or instead transfer the patient to a hospital that could and would undertake that treatment.Bryan v. Rectors of the University of Virginia, 95 F.3d 349, 352 (4th Cir. 1996); see also Estate of Giomard Rivera v. Doctor Susoni Hosp., Inc., 288 F. Supp. 2d. 161, 165 (D.P.R. 2003).
Hospital Hermanos contends it complied with the transfer requirements as it obtained the informed and written consent of Falcón's father. Also, it notes that Dr. Flores prepared a written certification, and records were provided to the transferring hospital. Plaintiffs argue that Falcón was "dumped" while Hospital Hermanos is adamant that she was not. Plaintiffs also argue that the existence of the consent to transfer does not translate into informed consent to transfer.
Dr. Flores did provide a written certification of the reason for transfer as set forth above. The evidence before the Court is that Dr. Flores made the decision to transfer Falcón after determining that surgery was necessary and that there were no beds available at the intensive care unit. Dr. Flores further determined that it would be necessary at some point in time for Falcón to be cared for in intensive care.
Other evidence before the Court is that despite Dr. Jordán's referral to a consulting physician stating, "Surgeon — ER-Stat," Falcón was never seen by a surgeon at Hospital Hermanos. Additionally, the emergency room notes contain a reference to Falcón's insurance as "not reliable." Finally, hospital records indicate that while no beds were available at the intensive care units, beds were available in the surgery area. Clearly, there is an issue of dispute regarding whether the certification meets the requisites of EMTALA.
With regard to the signed consent, the evidence before the Court is that Mr. Falcón did sign a transfer of consent. While Mr. Falcón concedes he signed the same, he states that he was never informed of the reason for the transfer, only that his daughter needed to be transferred. Other evidence is that, when informed of a $60 fee for the transfer of his daughter and upon having indicated that he did not have the money, Mr. Falcón was told the hospital would pay the $60 for the transfer if Mr. Falcón would sign the Transfer Form — which he did. Further, Mr. Falcón states that he was given no explanation about the transfer other than to be asked to sign the transfer form so that the hospital would pay for the transfer. Finally, he states that, while it is true that he signed the transfer form, he did not request that his daughter be transferred. There is clearly an issue of fact in material dispute as to whether adequate information was provided prior to transfer as required by EMTALA.
Given the facts before the Court, there is a question of fact whether Hospital Hermanos met its obligations with regard to a transfer as required by the EMTALA. Accordingly, viewing the foregoing in the light most favorable to plaintiffs, as the undersigned must do, there remain genuine issues of material fact. As a result, summary judgment is inappropriate.
4. Supplemental State Claims
Hospital Hermanos also seeks dismissal of the supplemental states claim that plaintiffs bring pursuant to Puerto Rico Law. As a general rule, where the district court dismisses the federal claims before trial, the court should dismiss the state law claims without prejudice. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966); Rodríguez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir. 1995).
Inasmuch as it is previously recommended that the motion for summary judgment with regard to the EMTALA claims be denied, the undersigned further RECOMMENDS that the motion for summary judgment with regard to the supplemental state claims also be DENIED.
III. Conclusion
It is therefore RECOMMENDED that defendant's Motion for Summary Judgment ( Docket No. 53) be DENIED.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 72(a) of the Local Rules of Court. Any objections to the same must be specific and must be filed with the Clerk of Court within ten (10) days of notice. Rule 72(d), Local Rules of Court; Fed.R.Civ.P. 72(b). Failure to timely file specific objections to the Report and Recommendation waives the right to review by the District Court, and waives the right to appeal the District Court's order. United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980). The parties are advised that review of a Magistrate-Judge's Report and Recommendation by a District Judge does not necessarily confer entitlement as of right to a de novo hearing and does not permit consideration of issues not raised before the Magistrate-Judge. Paterson-Leitch v. Massachusetts Elec., 840 F.2d 985 (1st Cir. 1988).