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March 5, 2001


The opinion of the court was delivered by: Glasser, District Court Judge:


This action was initiated by plaintiffs Hedwige and Herve Brenord against defendants The Catholic Medical Center of Brooklyn and Queens, Inc., its subsidiary St. Mary's Hospital of Brooklyn, Dr. Fanell Alerte, and Dr. Eugenio Rocksmith in connection with Mrs. Brenord's miscarriage in April 1996. Plaintiffs have alleged claims grounded in the Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd, as well as claims based on medical malpractice, negligence and negligent infliction of emotional distress. Before the court are motions for summary judgment by all four defendants, as well as plaintiffs' cross-motion for summary judgment and motion to strike. For the reasons that follow, defendants' summary judgment motions are granted as to the federal EMTALA claim, and plaintiffs' motion on that claim is denied, as is plaintiffs' motion to strike. As for the remaining state law claims, summary judgment is denied, and this action is remanded to state court for adjudication of those claims.


The facts underlying this action are undisputed unless otherwise noted. The Brenords first learned that they would be having a baby sometime in the Fall of 1995. (Complaint ¶ 11; Alerte Dep. 47-48, 57) Mrs. Brenord received routine prenatal care from her obstetrician and gynecologist, Dr. Fanell Alerte. As part of her prenatal care, Mrs. Brenord visited Dr. Alerte at least once a month between December 1995 and March 1996. (¶ 13)

On April 21, 1996, Mrs. Brenord asked her brother in law to call an ambulance for her because she had a pain in her abdomen and felt nauseous. (¶ 15) Mrs. Brenord was taken by ambulance to St. Mary's Hospital, a subsidiary of The Catholic Medical Center of Brooklyn and Queens. (¶ 7) According to records kept by St. Mary's Hospital, Mrs. Brenord was triaged at approximately 9:40 p.m., at which time her vital signs were taken. Mrs. Brenord had a normal temperature of 98.8 degrees, a normal respiration rate and blood pressure, and a slightly elevated pulse of 117. The triage record reflects her complaints of "slight abdominal pain" and also notes that she had "passed water." No vaginal bleeding was present. (Rocksmith, Catholic Medical Center and St. Mary's Hospital Defs.' ("Hosp. Defs.'") Ex. B) During her triage, Mrs. Brenord complained of water passing from the vagina but had no bleeding. (Id.) St. Mary's Hospital records reflect that, based on her last menstrual period, Mrs. Brenord was 17 weeks pregnant with a due date of October 1, 1996. (Id.)

At approximately 10:30 p.m., Mrs. Brenord was taken to the Emergency Room. There, she was seen by defendant Dr. Eugenio Rocksmith, an obstetrics and gynecology resident who was on call at the time. Dr. Rocksmith's pelvic examination of Mrs. Brenord included a sterile speculum test and a nitrazene paper test to determine whether Mrs. Brenord's membranes were ruptured, a sign that she might be going into early labor. Hospital records indicate that the nitrazene test was negative. (Id.) Dr. Rocksmith's examination also revealed that Mrs. Brenord's cervix was closed, another sign that she was not going into labor. In addition, several laboratory studies were ordered, including a CBC, urine, SMA 6/12, UCG and C&S. (Id.) Hospital records reflect that a pelvic sonogram was also ordered to rule out a ruptured membrane. (Id.) Dr. Rocksmith testified, however, that it was his practice only to perform a pelvic sonogram if the patient's nitrazene test came out positive. Plaintiffs maintain that neither a microscopic examinations of fluids nor a sonogram was performed. (Pls.' Local Rule 56.1 Statement, ¶ 11) The blood and urine tests indicated that Mrs. Brenord had a white blood count in the normal range of 8,700 with Hematocrite of 38%. (Hosp. Defs.' Ex. B)

Dr. Rocksmith testified at his deposition that the evaluation note he prepared on April 21, 1996 (id.) indicates that, in accordance with his regular practice, he contacted Mrs. Brenord's private attending physician, Dr. Alerte, at some point on the evening of April 21 and that they agreed during this discussion that Mrs. Brenord should be prescribed Terazol 3 cream for a yeast infection. (Rocksmith Dep. 39, 55, 56, 60) Dr. Rocksmith, however, could not specifically recall having called Dr. Alerte, during his deposition, and, for that matter, had no independent recollection of this entire case other than through the records he was asked to examine during the deposition. (Id. at 60 62, 77) Dr. Alerte testified at his deposition that he knew Dr. Rocksmith but could not recall ever having spoken with him about Mrs. Brenord. (Alerte Dep. 155) The Complaint originally alleged that Dr. Rocksmith contacted Dr. Alerte on April 21, 1996 (while Mrs. Brenord was still at St. Mary's Hospital) and asked him to come to the Hospital for purposes of examining and treating Mrs. Brenord, but that he never came. (¶¶ 21-23) However, plaintiffs seem to have retreated from this position and now claim that Dr. Rocksmith never contacted Dr. Alerte. (Pls.' Local Rule 56.1 Statement, 10)

Mrs. Brenord was moved from the Emergency Room to Labor and Delivery at approximately 11:10p.m. on April 21. (Hosp. Defs.' Ex. B) She was discharged at 12:30 a.m. on April 22 with a prescription for Terazol 3 creme. (Id.) According to St. Mary's Hospital, Mrs. Brenord was instructed to follow up with her own physician, Dr. Alerte. (Id.)

Later that morning, on April 22, Mrs. Brenord awoke with more pain. Her husband attempted to call Dr. Alerte and reached him, but Dr. Alerte put Mr. Brenord on hold and never returned to the phone. Mr. Brenord tried to call Dr. Alerte again, only to be told by someone at his office that Dr. Alerte was busy. (Herve Brenord Dep. 33-34, 36) Having been unsuccessful in reaching Dr. Alerte by phone, Mr. Brenord decided to take his wife to Dr. Alerte's office at around 2:30 p.m. on April 22, 1996. There, Dr. Alerte examined Mrs. Brenord and found that she had a temperature of 98.6 and a fetal heart rate within the normal range and that her cervix was closed. Dr. Alerte performed a pelvic examination which included a sterile speculum test and a nitrazene test. The nitrazene test was negative. Dr. Alerte did not perform a microscopic examination of fluids or a sonogram. After the examination, Dr. Alerte prescribed Mrs. Brenord a prophylactic antibiotic, ampicillin, and liquid Maalox. (Alerte Dep. 147) Mrs. Brenord went home, but still did not feel well.

After midnight on April 22, that is early in the morning of April 23, Mr. Brenord took Mrs. Brenord back to the St. Mary's Hospital Emergency Room. (Herve Brenord Dep. 41-42) On arrival, she complained of lower abdominal pain and had a temperature of 102.7. A sonogram was performed which revealed that Mrs. Brenord had miscarried. Mrs. Brenord was then treated with intravenous antibiotics and taken to the Operating Room, where a dilation and curetage was performed. She was seen by Dr. Alerte at the hospital "within 3 days of having seen her" on April 22 (Alerte Dep., 160) and discharged on April 27, 1996. Mrs. Brenord's hospital discharge summary reflects that she had an admitting diagnosis of chorioamnionitis, an infection caused when the membranes rupture, and that this infection was resolved at discharge time. (Hosp. Defs.' Ex. B)

Plaintiffs served the underlying Complaint on October 7, 1996. The Complaint alleges that all four defendants violated the Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd, by failing to perform an appropriate medical screening examination to determine whether Mrs. Brenord had an emergency medical condition and by failing to provide plaintiff with further medical examination and treatment to stabilize that condition. (Causes of Action 1-6, ¶¶ 49-81) The Complaint further alleges that the defendants committed medical malpractice and negligence by failing to properly treat Mrs. Brenord's medical condition. (Causes of Action 7-9, ¶¶ 82-93) Finally, the Complaint alleged that as a result of the alleged EMTALA violations, negligence and malpractice, both plaintiffs suffered extreme emotional distress. (Causes of Action 10-11, ¶¶ 94-105)

Defendants Rocksmith, Catholic Medical Center, and St. Mary's Hospital have submitted an expert affidavit by Dr. Anthony T. Bozza, a Board-certified obstetrician and gynecologist, which concludes that the care rendered to Mrs. Brenord was in conformity with good and accepted medical standards and that the injuries alleged by Mrs. Brenord were not a proximate cause of the care and treatment provided by the staff at St. Mary's Hospital and Dr. Rocksmith. These defendants have also submitted an expert affidavit by Dr. Jose J. Fernandez, a Board certified internist and emergency medicine specialist, which contains essentially the same opinions. Plaintiffs have submitted an expert affidavit by Dr. Salah Mahmoud which states that Mrs. Brenord should have been admitted and given further medical treatment on April 21, 1996 but also that the repeated pelvic examinations on April 21 and 22, 1996 in unsterile conditions caused Mrs. Brenord to develop chorioamnionitis on April 23, 1996.*fn1


1. Summary Judgment Standard

Before examining the facts underlying this motion, it is important to recall the criteria by which a motion for summary judgment is determined. Summary judgment "shall be rendered forthwith if the pleadings, depositions . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A "moving party is `entitled to judgment as a matter of law' [if] the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof" Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). In deciding a summary judgment motion, a court need not resolve disputed issues of fact, but need only determine whether there is any genuine issue to be tried. Eastman Mach. Co., Inc. v. U.S., 841 F.2d 469, 473 (2d Cir. 1988). A disputed fact is material only if it might affect the outcome of the suit under the governing law. A genuine factual issue exists if there is sufficient evidence favoring the nonmovant such that a reasonable jury could return a verdict in her favor. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248-249(1986). "In assessing the record to determine whether there is a genuine issue of fact, the court is required to draw all inferences in favor of the party against whom summary judgment is sought." Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989).

2. The EMTALA Statute

EMTALA was enacted in 1986 amid growing concern over the availability of emergency health care services to the poor and uninsured. Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1039 (D.C. Cir. 1991). The statute was specifically designed to respond 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. Inc., 996 F.2d 708, 710 (4th Cir. 1992). It provides, in pertinent part:

(a) Medical screening requirement

In the case of a hospital that has a hospital emergency department, if any individual (whether or not eligible for benefits under this subchapter) comes to the emergency department and a request is made on the individuals behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospital's emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition (within the meaning of subsection (e)(1) of this section) exists.
(b) Necessary stabilizing treatment for emergency medical conditions and labor
(1). . . 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 ...

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