Lewellen v. Schneck Med. Ctr.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

KEVIN LEWELLEN, and JANET
LEWELLEN,

Plaintiffs,

vs.

SCHNECK MEDICAL CENTER a/k/a
SCHNECK MEMORIAL HOSPITAL, A.
DAVIS, RN, JOHN M. REISERT, MD,
JOHN FL ALEXANDER, MD, and
SHARON DUFFIELD, RN,

Defendants.

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4:05-cv-083-JDT-WGH

ENTRY ON PLAINTIFFS’ MOTION FOR LEAVE TO FILE AN AMENDED
COMPLAINT (Doc. No. 102)1

This cause comes before the court on the Plaintiffs’ Motion for Leave to File an

Amended Complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure. The

Plaintiff2 sues defendant health care providers under 42 U.S.C. § 1983 (“Section 1983”)

and the Emergency Medical Treatment and Labor Act, 42 U.S.C. § 1395dd (“EMTALA”).

1 This Entry is a matter of public record and will be made available on the court’s web
site. However, the discussion herein is not sufficiently novel to justify commercial publication.

2 Mr. Lewellen’s wife, Janet, is also named as a Plaintiff in this case. The Complaint
contains a cause of action for Janet Lewellen’s loss of consortium through EMTALA. Mrs.
Lewellen is not included in the additional claims added in the Amended Complaint; therefore, for
the sake of clarity, throughout this Entry the court will refer to Plaintiff in the singular.

BACKGROUND

The facts of this case are discussed completely in the court’s Entry on

Defendants’ Motions for Summary Judgment entered on August 16, 2007. For the

purposes of this Entry, only the facts relevant to Plaintiff Kevin Lewellen’s Motion for

Leave to File an Amended Complaint will be discussed. That motion seeks to add

claims against the Defendant Schneck Medical Center (“Schneck”) under § 1983 and to

add an additional count under § 1983 against Defendants John M. Reisert, M.D. and

Amanda Davis, R.N.

After getting in a car accident on June 8, 2003, Mr. Lewellen was taken to

Schneck by two police officers who suspected that he had been operating a vehicle

while under the influence. Ms. Davis admitted Mr. Lewellen and completed an initial

assessment of his condition. Dr. Reisert then examined Lewellen. After taking x-rays,

Ms. Davis informed Mr. Lewellen that Dr. Reisert was discharging him. Against the

wishes of Mr. Lewellen, he was discharged and taken to jail. It was later discovered

that Mr. Lewellen was not properly diagnosed at the hospital and suffered a burst

fracture in his spine which, because it went untreated, permanently damaged his spinal

cord.

The Plaintiff seeks to add two counts under 42 U.S.C. § 1983 against Schneck,

Reisert, and Davis based on violations of the federal EMTALA statute. Count IV alleges

that Dr. Reisert and Davis, acting under color of state law and in their capacity as

agents of Schneck, acted to deprive Lewellen of his rights under EMTALA to an

adequate screening exam and to not be released from Schneck until his medical

condition was stable. Count V alleges two claims. First, that Schneck is liable under §

1983 for violating Plaintiff’s rights under EMTALA. Second, that Schneck is liable for

the individual defendants’ violations of Lewellen’s constitutional rights because Schneck

failed to promulgate adequate policies, procedures, and protocols and failed to

adequately train its professional medical staff.

Dr. Reisert has entered a response opposing the proposed amendment. He

argues that the proposed claim against him under 42 U.S.C. § 1983 premised on

violations of EMTALA is not recognized by law and should be denied.

II.

ANALYSIS

STANDARD FOR LEAVE TO FILE AN AMENDED COMPLAINT

A plaintiff may amend his complaint “only by a leave of court or by written

consent of the adverse party . . . .” Fed. R. Civ. P. 15(a). Rule 15(a) provides “leave

shall be freely given when justice so requires . . . .” Fed. R. Civ. P. 15(a). The right to

amend is not absolute, Brunt v. Serv. Employees Int’l Union, 284 F.3d 715, 720 (7th Cir.

2002), and can be denied for undue delay, bad faith, dilatory motive, prejudice, or

futility, Ind. Funeral Dirs. Ins. Trust v. Trustmark Ins. Corp., 347 F.3d 652, 655 (7th Cir.

2003). “[A]n amendment may be futile when it fails to state a valid theory of liability, or

could not withstand a motion to dismiss.” Bower v. Jones, 978 F.2d 1004, 1008 (7th

Cir. 1992); see also Foman v. Davis, 371 U.S. 178, 182 (1962). A decision to grant or

deny a motion for leave to file an amended complaint is “a matter purely within the

sound discretion of the district court.” Guise v. BWM Mortg., LLC., 377 F.3d 795, 801

(7th Cir. 2004) (quoting J.D. Marshall Int’l, Inc. v. Redstart, Inc., 935 F.2d 815, 819 (7th

Cir. 1991)).

SECTION 1983 CLAIMS FOR DEPRIVATION OF RIGHTS GRANTED
UNDER EMTALA

EMTALA does not provide a private right of action against an individual

physician. The EMTALA remedies provision is found at 42 U.S.C. § 1395dd and reads

as follows:

(d) Enforcement
(1) Civil Money penalties

. . .

(B) . . . [A]ny physician who is responsible for the examination,
treatment, or transfer of an individual in a participating hospital, including a
physician on-call for the care of such an individual, and who negligently
violates a requirement of this section . . . is subject to a civil money penalty
of not more than $50,000 for each such violation and, if the violation is gross
and flagrant or is repeated, to exclusion from participation in this subchapter
and State health care programs.
. . .

(2) Civil enforcement
(A) Personal Harm
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 appropriate.

The United States Supreme Court and the Seventh Circuit have not addressed

the issue of whether a private right of action can be brought against a physician under

EMTALA. However, decisions from other circuits addressing the issue have concluded

that no private right of action may be brought against an individual physician. See

Eberhardt v. City of L.A., 62 F.3d 1253, 1256-57 (9th Cir. 1995) (“The plain text of the

EMTALA explicitly limits a private right of action to the participating hospital.”); King v.

Ahrens, 16 F.3d 265, 270-71 (8th Cir. 1994) (“The plain language indicates that section

1395dd(d)(2)(A) creates a cause of action only against a ‘participating hospital.” The

statutory definition of ‘participating hospital’ does not encompass an individual

physician.”); Delaney v. Cade, 986 F.2d 387, 394 (10th Cir. 1993); Baber v. Hosp. Corp.

of Am., 977 F.2d 872, 877-78 (4th Cir. 1992) (“[N]othing in the language of the statute

permits a private individual to recover personal injury damages from a physician for an

EMTALA violation.”). The statute is not ambiguous and provides that a physician who

violates EMTALA is subject to the assessment of civil fines. It does not provide for a

private right of action by the person injured against such a physician. Mr. Lewellen

does not dispute that EMTALA does not create a private right of action against

individual physicians. In fact, the Plaintiff states in his reply brief that “the fact that

EMTALA does not create a direct action against Dr. Reisert is no obstacle to Mr.

Lewellen’s [Section] 1983 action against Dr. Reisert.” (Pls.’ Reply Br. 4.)

The Plaintiff argues that § 1983 allows him to bring claims premised on violations

of EMTALA. Section 1983 exists to provide a private cause of action for any person

who is subjected to “the deprivation of any rights, privileges, or immunities secured by”

the Constitution and the laws of the United States. 42 U.S.C. § 1983. The statute

provides that every person who acts to deprive another of those rights, privileges, or

immunities “shall be liable to the party injured in an action at law . . . .” Id. Plaintiff’s

proposed § 1983 claim is premised on the fact that the Defendants’ acts and omissions

deprived him of the rights EMTALA granted him. Mr. Lewellen argues that § 1983 is

intended to apply in situations in which the plain text does not indicate that there is a

private remedy within the statute. Mr. Lewellen states that “[n]umerous Supreme Court

decisions have upheld cases under 42 U.S.C. § 1983 for violations of statutes that

clearly did not provide a private remedy for violations of those statutes.” (Pls.’ Reply Br.

3) (citing Wilder v. Va. Hosp. Ass’n, 496 U.S. 498 (1990)). While this is true, because of

the enforcement procedures already present under EMTALA, the Sea Clammers

doctrine precludes § 1983 from providing additional causes of action.

The Supreme Court has stated “[w]hen the remedial devices provided in a

particular Act are sufficiently comprehensive, they may suffice to demonstrate

congressional intent to preclude the remedy of suits under [Section] 1983.” Middlesex

County Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 20 (1981). The Court

has also held that if Congress intended that one of the statutory schemes should be the

exclusive way to vindicate a right, then plaintiffs are required to sue only under that

statute. Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 378 (1979)

(holding that Title VII of the Civil Rights Act of 1964 preempted a cause of action for

employment discrimination under 42 U.S.C. § 1985(3)).

In Waid v. Merrill Area Public Schools, the Seventh Circuit was faced with a §

1983 issue very similar to the one before this court. The plaintiff in Waid brought an

action for sexual discrimination against the school district and individual school officials.

Waid v. Merrill Area Pub. Schs., 91 F.3d 857, 860 (7th Cir. 1996). Title IX allowed for

damages to be awarded against educational institutions, but not against individual

school officials. Id. at 862. The court held that because of the remedies allowed for

under Title XI “Congress intended to place the burden of compliance . . . on educational

institutions themselves, not on the individual officials associated with those institutions.”

Id. Therefore, “Congress effectively superseded a cause of action under § 1983. . . .”

Id. at 863.

In the instant case, EMTALA provides for effective remedies that place the

burden of compliance upon the medical institution. 42 U.S.C. § 1395dd(d)(2)(A)

provides a comprehensive enforcement mechanism that provides sufficient remedies to

encourage enforcement of EMTALA. It also provides for adequate compensation of

injured plaintiffs. Congress expects that medical institutions establish policies that

diminish or eliminate violations of EMTALA by its physicians. EMTALA provides that

both physicians and hospitals will be held accountable for damages with the provision of

a civil penalty, see 42 U.S.C. § 1395dd(d)(1)(A), (B), but specifically includes only

hospitals as liable for penalties brought under the civil enforcement section, see 42

U.S.C. § 1395dd(d)(2)(A). In Sea Clammers, the Supreme Court instructed that “when

a state official is alleged to have violated a federal statute which provides its own

comprehensive enforcement scheme, the requirements of that enforcement procedure

may not be bypassed by bringing suit directly under § 1983.” Sea Clammers, 453 U.S.

at 20. Congress’s omission of language in EMTALA indicating a private right of action

against individual physicians purposefully precludes plaintiffs from asserting claims

against those individual physicians. Similarly, because the remedies provided in

EMTALA’s enforcement scheme are sufficiently comprehensive, § 1983 may not be

used as a vehicle to allege EMTALA violations against a hospital. See id.

In the instant case, Mr. Lewellen has already brought claims against Schneck

under the EMTALA statute. He has also alleged claims against Schneck under § 1983

for failing to provide adequate medical care for a pretrial detainee. This attempt to bring

additional claims against Schneck, Reisert, and Davis under § 1983 because of a

violation of EMTALA is only doubling claims to increase the chance of success.

Because § 1983 claims alleging a deprivation of the Plaintiff’s rights under EMTALA

would not survive a motion to dismiss, the addition of claims alleging such a violation

would be futile.

SECTION 1983 CLAIMS FOR VIOLATION OF CONSTITUTIONAL
RIGHTS

In addition to the § 1983 claims for a deprivation of rights under EMTALA brought

in Counts IV and V, Count V of the Amended Complaint also seeks to add an additional

§ 1983 claim against Schneck for a violation of Mr. Lewellen’s constitutional rights.

Count V states that Schneck is also liable for the individual defendants’ violations of

Lewellen’s constitutional rights because Schneck failed to promulgate adequate

policies, procedures, and protocols and failed to adequately train its professional

medical staff. The Defendants have not challenged the addition of this claim, therefore

the Plaintiff will be allowed to amend his complaint and add this additional claim under §

1983 for a violation of his constitutional rights.

III.

CONCLUSION

Because EMTALA provides a comprehensive enforcement mechanism for

injured plaintiffs, the Plaintiff is preempted from bringing § 1983 claims against Schneck,

Dr. Reisert, and Ms. Davis premised on violations of EMTALA. The Plaintiff is allowed

to add the additional claim in Count V against Schneck under § 1983 for violations of

Plaintiff’s constitutional rights based on Schneck’s failure to promulgate adequate

policies, procedures, and protocols and failure to adequately train its professional

medical staff. The court therefore GRANTS IN PART and DENIES IN PART Plaintiff’s

Motion for Leave to File an Amended Complaint (Doc. No. 102). The Plaintiff has ten

days from the date of this Entry to file an Amended Complaint in accordance with the

rulings herein.

ALL OF WHICH IS ENTERED this 9th day of November 2007.

John Daniel Tinder, Judge
United States District Court

_______________________________ John Daniel Tinder, Judge United States District Court Copies to:

Magistrate Judge William G. Hussmann, Jr.

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