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FISHER v. NEW YORK HEALTH & HOSPS. CORP.

January 8, 1998

NAQUAN FISHER, an infant, by his mother and natural guardian FELICE FISHER, and FELICE FISHER, individually, Plaintiffs, against NEW YORK HEALTH AND HOSPITALS CORPORATION, RAYMOL VARGHESE, M.D., THOMAS GALLOWAY, M.D., and JUNAID KHAN, M.D., Defendants.


The opinion of the court was delivered by: GLEESON

 JOHN GLEESON, United States District Judge:

 Plaintiffs, ten year-old Naquan Fisher and his mother, Felice Fisher, seek damages for injuries sustained by Naquan in December 1993. The amended complaint alleges causes of action under the Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd, and a medical malpractice claim under New York law. The defendants are the New York City Health and Hospitals Corporation ("NYCHHC") and three physicians at Woodhull Hospital in Queens, New York: Raymol Varghese, Thomas Galloway and Junaid Khan.

 The defendants have moved for summary judgment on the federal claims. For the reasons set forth below, the motion is granted. The Court will retain jurisdiction over the malpractice claim.

 FACTS *fn1"

 This action arises out of events that began on December 15, 1993, when six-year-old Naquan Fisher got into a snowball fight with his brothers. Naquan was hit over the left eye, causing him to quit the fight and go inside. He stayed home from school the next day, complaining of a headache. A fever developed, and his mother called for an ambulance, which rushed him to the emergency room of Woodhull Hospital in the early morning hours of December 17, 1993.

 Naquan was first examined by an emergency room triage nurse at approximately 12:30 a.m. His vital signs were taken, revealing a temperature of 104.6 [degrees]. The nurse was told by Naquan's mother that he had been hit in the head one or two days earlier, and had been suffering from headaches ever since. Naquan also complained of loss of appetite and generalized body pain. At approximately 1:00 a.m., he was given 180 mg of Tylenol to reduce his fever. The triage form calls upon the nurse to categorize the patient as "routine," "high priority" or "emergent." The nurse characterized Naquan's condition as "high priority."

 At approximately 1:15 a.m., Dr. Thomas Galloway, an attending physician in Woodhull Hospital's Department of Emergency Medicine, performed a pediatric examination of Naquan, which did not reveal to Galloway any abnormal findings with regard to the boy's heart, lungs, skin, head, eyes, ears, nose or throat. Naquan was active and alert, his lungs were clear, and he had no signs of acute respiratory distress. The initial diagnosis by Galloway was that Naquan suffered from a viral illness.

 At approximately 2:20 a.m., Galloway reevaluated Naquan and found him to be in stable condition. His fever had dropped to 102 [degrees]. Naquan was thus discharged from the hospital into the care of his mother, with instructions to administer Tylenol and fluids every four hours and a referral to the pediatric clinic.

 Three days later, on December 20, 1993, Naquan returned to Woodhull Hospital's emergency room with a continued high-grade fever, general body aches, severe headaches, loss of appetite, shakes and chills. At that time, he was evaluated and admitted into the pediatric ward, where he came under the care of Drs. Varghese and Khan. *fn2" Naquan was diagnosed as suffering from appendicitis. On December 22, 1992, however, a laparotomy disclosed a normal appendix. The post-operative diagnosis was pyrexia (high fever) of unknown origin. Finally, on December 27, 1993, a CT scan was performed on Naquan, revealing a severe brain abscess. Naquan was then rushed to Kings County Hospital, where he was diagnosed with a severe festering brain abscess, subdural bilateral empyemas and epidural hematoma. Emergency brain surgery was performed to evacuate the hemorrhage. Naquan remained at Kings County Hospital for most of January 1994. As a result of the surgery, he is missing part of his skull and he must wear a hard hat for protection. He suffers from neurological, motor, behavioral and emotional damage.

 In support of their federal claims under the EMTALA statute, plaintiffs allege that the hospital and Dr. Galloway failed to adequately screen Naquan when he came into the emergency room and failed to stabilize him before releasing him. Defendants contend first that there can be no claim against Galloway personally because EMTALA's private right of action is limited to claims against hospitals. Defendants further argue there can be no EMTALA liability in this case on the part of the hospital. Even if there was a misdiagnosis, they contend, Naquan received the screening and stabilization to which he is entitled under the statute.

 DISCUSSION

 A. The Summary Judgment Standard

 Summary judgment must be granted where "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). In determining when material facts are in dispute, all ambiguities must be resolved and all inferences drawn in favor of the non-moving party. Local 74, Service Employees International Union v. Ecclesiastical Maintenance Services, 55 F.3d 105, 108 (2d Cir. 1995).

 The burden is upon the moving party to demonstrate the absence of any genuine issues of material fact. Gallo v. Prudential Residential Services, Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994). That burden may be met by showing that "little or no evidence may be found in support of the nonmoving party's case." Id. "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (citations omitted). The non-moving party cannot survive a properly supported motion for summary judgment by resting on his pleadings "without 'any significant probative evidence tending to support the complaint.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968)).

 B. The EMTALA Statute

 EMTALA was enacted in 1986 "in response to a growing concern that hospitals were 'dumping' patients unable to pay, by either refusing to provide emergency medical treatment or transferring patients before their emergency conditions were stabilized." Brooks v. Maryland General Hospital, ...


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