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
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,
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.
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
(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)
(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 stabilize the
medical condition; or
(B) for transfer of the individual to another
medical facility in accordance with subsection
(c) of this section.
42 U.S.C. § 1395dd(a) and (b)(1)(1997). The statute
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
(ii) serious impairment to bodily functions, or
(iii) serious dysfunction of any bodily organ or part
42 U.S.C. § 1395dd(e)(1)(A)(1997).
Courts have held that in order to comply with the "appropriate medical
screening" requirement of this section, the hospital must provide
"treatment that is equal, as opposed to treatment that meets professional
standards of competence." Fisher, 989 F. Supp. at 449. Thus, a hospital
fulfills the appropriate screening requirement "when it conforms in its
treatment of a particular patient to its standard screening procedures.
By the same token, any departure from standard screening procedures
constitutes inappropriate screening in violation of [EMTALA]." Id.
(quoting Gatewood, 933 F.2d at 1041.) "The appropriateness of the
screening examination is determined by reference to how the hospital
treats other patients who are perceived to have the same medical
condition . . . That is true even if the hospital's perception of a
particular patient is based on a misdiagnosis; EMTALA is implicated only
when individuals who are perceived to have the same medical condition
receive disparate treatment." Id. (citing Vickers v. Nash General
Hospital. Inc., 78 F.3d 139, 143 (4th Cir. 1996); see also Summers v.
Baptist Medical Center, 91 F.3d 1132, 1139 (8th Cir. 1996)).
EMTALA was "not intended to duplicate preexisting legal protections,
but rather to create a new cause of action, generally unavailable under
state tort law, for what amounts to failure to treat." Gatewood, 933 F.2d
at 1041. Thus, EMTALA is not a federal medical malpractice statute, Repp
v. Anadarko Municipal Hospital, 43 F.3d 519, 522 (10th Cir. 1994); Power
v. Arlington Hospital Ass'n, 42 F.3d 851, 856 (4th Cir. 1994), and most
questions related to the adequacy of a hospital's standard screening
procedure "must remain the exclusive province of local negligence law."
Gatewood, 933 F.2d at 1041 (citing Cleland v. Bronson Health Care Group.
Inc., 917 F.2d 266, 271-72 (6th Cir. 1990); Stewart v. Myrick,
731 F. Supp. 433, 436 (D. Kan. 1990) (claim for improper emergency room
diagnosis and treatment "falls within ambit of state negligence law, not
the federal anti-dumping law"); Evitt v. University Heights,
727 F. Supp. 495, 497 (S.D.Ind. 1989) (same)). Since EMTALA was not
enacted to remedy negligent diagnosis, only refusals to follow regular
screening procedures violate the statute. Fisher, 989 F. Supp. at 449
(citing Holcomb v. Monahan, 30 F.3d 116, 117 (11th Cir. 1994). Faulty
screening in a particular case, as opposed to disparate screening or
refusing to screen at all, does not violate the statute. Id. (citing
Correa v. Hospital San Francisco, 69 F.3d 1184, 1192 (1st Cir. 1995)).
With respect to EMTALA's stabilization and transfer requirements,
courts have found that those provisions are only triggered after a
hospital "determines that [an] individual has an emergency medical
condition." Gatewood, 933 F.2d at 1041 (quoting 42 U.S.C.A. §§
1395dd(b)(1), (c) and holding that, because no such condition was
diagnosed, EMTALA's stabilization and transfer requirements were
Thus, in order to state a claim under EMTALA, a plaintiff must allege
that she went to the emergency room of a participating hospital seeking
treatment for a medical condition, and that the hospital either did not
screen her in the same way it screened other patients to determine
whether she had an emergency medical condition, or discharged or
transferred her before such a condition had been stabilized. Fisher,
989 F. Supp. at 448.
With respect to an aggrieved individual's private right
of action, EMTALA provides:
(A) Any individual who suffers personal harm as a
direct result of a participating hospital's violation
of a requirement of this section may, in a civil
action against the participating hospital, obtain
those damages available for personal injury under the
law of the State in which the
hospital is located, and such equitable relief as is
42 U.S.C. § 1395dd(d)(2)(A)(1997).