Lewellen v. Schneck Med. Ctr.

EMTALA

Lewellen v. Schneck Med. Ctr., No. 4:05-cv-083-JDT-WGH (S.D. Ind. Nov. 9, 2007)

In a suit brought by a patient under the Emergency Medical Treatment and Active Labor Act ("EMTALA"), the United States District Court for the Southern District of Indiana denied the patient’s motion to amend his complaint to add two claims under 42 U.S.C. §1983 (based on the alleged violations of EMTALA) against a hospital and a physician and nurse who treated him there.

The patient was injured in a car accident and transported to the hospital by two police officers who suspected he had been driving under the influence. The nurse completed the initial assessment and the physician examined him. Against the patient’s wishes, they discharged him and he was taken to jail. It was later discovered that he had a burst fracture in his spine which was not properly diagnosed at the hospital. As a result, the patient suffered permanent damage to his spinal cord. The court first observed that the omission of language in EMTALA indicating a private right of action against individual physicians purposefully precludes a patient from asserting claims against those individual physicians. Further, because the remedies provided in EMTALA’s enforcement scheme are sufficiently comprehensive, §1983 may not be used as a vehicle to allege additional EMTALA violations against the hospital. Thus, the patient was denied his motion to amend his complaint to include the two claims under 42 U.S.C. §1983.

 

Lewellen v. Schneck Med. Ctr.,

EMTALA

Lewellen v. Schneck Med. Ctr., No. 4:05-cv-00083-JDT-WGH (S.D. Ind. Aug. 16, 2007)

The federal District Court for the Southern District of Indiana denied the motions for summary judgment filed by the county hospital, its employees, and Medical Staff members in a case brought by a patient who alleged that he had been harmed as a result of an inadequate screening examination in the emergency room. The court found: (1) the actions of employees and Medical Staff members at a county hospital could constitute state action for purposes of alleged Constitutional violations; and (2) an emergency medical screening that was "so cursory that it was not designed to identify acute and severe symptoms" may be found not to satisfy the requirements of the Emergency Medical Treatment and Active Labor Act ("EMTALA").

The patient suffered a fractured vertebra in a car accident. He was taken to a county hospital’s emergency department, discharged without the fracture being diagnosed, and taken immediately to jail for operating a vehicle while intoxicated. Over the course of his stay in jail, the undiagnosed fracture caused permanent damage.

The patient asserted that two physicians and two nurses violated his Fourteenth Amendment right to adequate medical care as a pretrial detainee. He also claimed that the county hospital violated the screening and stabilization requirements of EMTALA. The court denied the defendants’ motions for summary judgment, finding that the cursory nature of the examination of the patient could lead a jury to conclude that the county hospital, physicians, and nurses had violated his Constitutional and EMTALA rights.

 

Lewis v. Capalbo

2001 WL 83417 (N.Y.A.D. 1 Dept.)

Satira C. Lewis, etc., et al., Plaintiffs-Appellants,

v.

Andrea Capalbo, M.D., Defendant-Respondent, Beth Israel Medical Center,

Defendant.

2103

Supreme Court, Appellate Division, First Department, New York

Decided on February 1, 2001

Rosenberger, J.P., Ellerin, Lerner, Friedman JJ.

APPEARANCES OF COUNSEL

Morton Alpert



Richard W. Nicholson

PER CURIAM OPINION

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered on or about August 18, 1999,
which granted the motion for renewal by defendant Andrea Capalbo, M.D., and upon renewal, granted
summary judgment dismissing the complaint against her, unanimously modified, on the law, to the
extent of denying summary judgment and reinstating the complaint, and otherwise affirmed, without costs.

Plaintiff, Paulette S. Lewis, on behalf of her infant daughter Satira, and individually, brought this action
alleging medical malpractice committed by defendant hospital and defendant Andrea Capalbo, M.D.
during the birth of Satira. Dr. Capalbo was one of five obstetricians at the Manhattan Medical Group also
known as the Yorkville HIP Center (“HIP Center”), which Ms. Lewis visited for prenatal care numerous
times a few months near the end of her third trimester.

On the day of delivery, August 4, 1986, at 4:30 p.m., Dr. Capalbo, the HIP Center attending physician on
call, examined Ms. Lewis, but left the hospital afterwards and had no further contact with her. Although
Ms. Lewis was placed on a fetal monitor, according to her testimony she began the labor process on her
own until the baby’s head had partially traveled outside the birth canal and she was holding it on the
palm of one of her hands. At this point, her husband ran out and called in an unidentified doctor standing
in the hallway who, along with several nurses, completed the delivery.

Satira was delivered at 4:55 A.M. on August 5, 1986, weighing five pounds six ounces with an APGAR
score of eight at one minute and an APGAR score of nine at five minutes (scores range from one to 10
and a number above seven is normal). However, in the subcategory of respiratory effort, Satira received
an APGAR score of one at one minute and two (changed from one) at five minutes, and in the category
of skin color, an APGAR score of one both after one minute and after five minutes (scores for
subcategories range from zero to two, and a score of one signifies an irregularity, while a score of two is normal).

Despite the APGAR score of two after five minutes for respiratory effort, it is undisputed that a short time
after her birth Satira was admitted to the neonatal intensive care unit with serious respiratory difficulties
where she remained for 12 days until her discharge, the first four of which she was in a ventilator.
Satira’s newborn medical records are incomplete. She currently suffers from seizure disorders and
cognitive and developmental problems that will require lifelong medical care. Dr. Capalbo moved for
summary judgment dismissing the complaint against her, arguing that she had not delivered Satira and
that Ms. Lewis’s prenatal care was within acceptable standards of medical care. The IAS court initially
denied the motion because the medical expert’s name and signature were redacted. On renewal and
upon submission of an unredacted medical affidavit, the motion was granted on the grounds that Dr.
Capalbo did not owe a duty to monitor Ms. Lewis personally during Satira’s birth and that Satira’s injuries
were not the result of an independent act or omission by Dr. Capalbo. For the reasons stated below, we disagree.

As a preliminary matter, the IAS court exercised its discretion appropriately in permitting Dr. Capalbo to
renew her motion for summary judgment upon an unredacted medical expert affidavit in the interest of
justice (see generally, Petito v Verrazano Contracting Co., 246 AD2d 636).

It is well established that a doctor who undertakes to examine and treat a patient (thus creating a doctor-patient relationship) and then abandons the patient may be held liable for medical malpractice (O’Neill v
Montefiore Hospital, 11 AD2d 132; Heraud v Weissman,
– A2d -, 714 NYS2d 476). In this case, there are
triable issues of fact as to whether Dr. Capalbo was Ms. Lewis’s doctor and whether she departed from
good medical practice by allegedly abandoning Ms. Lewis after admitting her to the hospital during the
early stages of labor.

Dr. Capalbo argues that there was no doctor-patient relationship between her and Ms. Lewis because
she only saw Ms. Lewis once at the HIP Center and neither Ms. Lewis nor Ms. Lewis’s husband
attempted to contact her prior to Satira’s delivery. However, Ms. Lewis testified in her deposition that she
was told that Dr. Capalbo would be her attending physician and the one who would deliver her baby
(compare, Kleinert v Begum, 144 AD2d 645 [no prior relationship between doctor and patient other than
examination two hours prior to the baby’s delivery]). Dr. Capalbo, in fact, was the attending physician
who examined Ms. Lewis when she was admitted to Beth Israel in the early stages of labor. Although Dr.
Capalbo was not in the hospital at Satira’s delivery, she signed Ms. Lewis’s labor and delivery chart as
well as her discharge forms certifying that the matter of Ms. Lewis’s treatment was “cleared for billing.”
Thus, a jury could reasonably conclude that Dr. Capalbo was Ms. Lewis’s doctor.

Dr. Capalbo does not dispute that she left the hospital after examining Ms. Lewis and had no further
contact with her. Instead, she argues that she did not have a duty to continually monitor Ms. Lewis and
thus did not abandon her because the admission and medical authorization form Ms. Lewis signed
stated that the delivery and related care could be provided by “associates or assistants” of Beth Israel
Medical Center of Dr. Capalbo’s choice. The record, however, contains nothing to indicate that Dr.
Capalbo affirmatively transferred the care of Ms. Lewis to the two doctors whose names, in addition to
Dr. Capalbo’s, appear in the Labor and Delivery Summary form (even though neither of them
participated in Satira’s delivery according to the testimony of Ms. Lewis). Dr. Capalbo did not inform Ms.
Lewis that the two doctors would be monitoring her after the initial examination took place. In addition,
there is nothing in the record to indicate that the two doctors were associates or assistants of Dr. Capalbo.

As to proximate cause, the affidavit of plaintiffs’ pediatric neurologist expert, Dr. Daniel G. Adler, stated
that it was his impression that Satira suffered from, among other things, “newborn respiratory distress,”
“seizure disorder,” and “language-based learning disability,” which resulted from “a significantly
abnormal newborn interval.” Dr. Adler based his opinion, among other things, on a review of Satira’s
labor and delivery records, her billing records, and a personal examination. Dr. Adler’s affirmation was,
therefore, specific and based on the record (see
Romano v Stanley
90 NY2d 444).

Plaintiffs’ obstetrics expert reviewed Satira’s labor and delivery records as well as Dr. Adler’s report in
concluding that Satira’s condition was probably due to hypoxia (deficient oxygenation of the blood).
According to the expert, had Dr. Capalbo monitored Ms. Lewis’s progress, hypoxia could have been
avoided or significantly minimized.

The experts’ affidavits in conjunction with the lack of fetal monitoring from 3:00 A.M. to 5:00 A.M., along
with Ms. Lewis’s undisputed testimony that the baby was traveling down the birth canal, that the baby
stopped and that she was holding the baby’s head in her hand before any physician attended to the
delivery, raise triable issues of fact regarding Dr. Capalbo’s negligence in failing to attend the delivery of
Satira and whether her absence caused Satira’s injuries.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE
DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 1, 2001

N.Y.A.D. 1 Dept. 2001.

Lewis v Capalbo

END OF DOCUMENT

Lemons v. Board of County Commissioners,

Lemons v. Board of County Commissioners,

No. 00-2292-KHV (D. Kan. Aug. 8, 2001)

The District Court of Kansas permitted the guardian of a surviving patient to amend
a negligence complaint to add a claim that the hospital defendant had violated
EMTALA by failing to provide stabilizing medical treatment prior to transferring
the surviving patient. The complaint was found to have adequately stated that
the hospital had failed to follow its own standard practices and policies relative
to stabilization, as is required to assert a private EMTALA claim.

Lee v. Trinity Lutheran Hosp.

HCQIA

Lee v. Trinity Lutheran Hosp.,
No. 00-0716-CV-W-HFS (W.D. Mo. Jan. 29, 2004)

The United States District Court for the Western District
of Missouri granted summary judgment in favor of a hospital that revoked the
privileges of one of its AIDS specialists, holding that the hospital was immune
under the Health Care Quality Improvement Act. The court noted that the testimony
of the physician’s expert witnesses, who opined that the physician acted competently,
was irrelevant since the hospital had collected voluminous information supporting
its quality of care concerns before taking action on the physician’s privileges.

 

 

Lenker v. Methodist Hospital

In the

United States Court of Appeals

For the Seventh Circuit

No. 98-4183
STEPHEN P. LENKER,
Plaintiff-Appellant,
v.
METHODIST HOSPITAL,
Defendant-Appellee.
Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 95 C 377–Theresa L. Springmann, Magistrate Judge. 
Argued September 23, 1999–Decided April 26, 2000
  Before POSNER, Chief Judge, MANION and ROVNER,

Circuit Judges.
  ROVNER, Circuit Judge.  Stephen Lenker sued his

employer, Methodist Hospital, under the Americans

With Disabilities Act, for failing to accommodate

him. Lenker, a nurse, suffered from multiple

sclerosis ("MS"). After his doctor issued a

lifting restriction for him, the hospital removed

him from his job as a nurse because the hospital

considered lifting to be an essential part of the

job that could not be reasonably accommodated. A

jury found in favor of the hospital and Lenker

appeals. We affirm.
I.
  Lenker was diagnosed with MS while he was still

in nursing school, and Methodist Hospital knew he

had the condition when it hired him. At the time

of his hire, Lenker’s MS was in remission, he had

no restrictions on lifting and he was able to

fully perform all of his nursing duties. One of

Methodist’s job requirements for a staff nurse is

the ability "to manage, with assistance as

appropriate, approximately 200 lbs. weight." A

nurse’s duties include turning patients in bed,

assisting patients to and from the bathroom,

helping patients walk and assisting patients who

unexpectedly fall. Sometimes other staff members

are available to assist a nurse with lifting, and

sometimes because of staffing shortages or

because an emergency arises, a nurse may have to

engage in physically strenuous lifting without

assistance. 
  None of this was a problem for Lenker until he

had been on the job for approximately six months.

At that time, he suffered an MS episode that

resulted in a 10 day hospitalization. When he was

released, his doctor indicated that Lenker should

not engage in any lifting. Methodist’s policy at

the time was to require any employee who was sick

on the job or who missed more than three days of

work to obtain clearance from its Occupational

Health Department before being allowed to return

to work. Additionally, the policy stated that if

the employee was released to work by the

Occupational Health Department with restrictions,

the employee’s manager was to determine whether

the employee could return to work with that

restriction. As a result of the policy, a

physician from the Occupational Health Department

examined Lenker following his hospitalization.

That doctor concurred with the judgment of

Lenker’s personal physician that Lenker should

not engage in lifting. Thus, Lenker’s work

release contained a "no lifting" restriction.

Lenker’s manager subsequently determined that

Lenker could not return to work as a nurse with

that restriction because lifting was a necessary

part of the job. 
  Although the hospital’s policy required twelve

months of service before an employee was eligible

for a leave of absence, Methodist granted Lenker

a leave to give him time to have his lifting

restriction reevaluated and possibly removed. The

hospital also gave Lenker access to its job

posting board, which was not available to non-

employees. Lenker’s manager informed him of his

layoff status and these benefits by telephone,

and the two did not talk again about Lenker’s

employment status. During Lenker’s layoff, his

physical condition worsened, and after a year on

layoff status, the hospital terminated Lenker’s

employment. Lenker sued Methodist, claiming

violation of the Americans With Disabilities Act,

and violation of state defamation law. The

district court granted summary judgment on the

state law defamation claim, and the ADA claim

went to trial before a jury. The jury found in

favor of Methodist Hospital. Lenker appeals.
II.
  Lenker claims the district court erred when it

refused to grant his Rule 50 motion for judgment

as a matter of law, because Methodist failed to

show at trial that it engaged in an interactive

process to accommodate Lenker’s disability.

Lenker also protests the district court’s refusal

to give three of his proposed jury instructions.

The district court declined to give Lenker’s

proposed instruction regarding the interactive

process in which an employer must engage to

determine what accommodations might exist for the

disabled employee, instead giving instructions

proposed by Methodist Hospital on this same

subject. The court also declined to instruct the

jury that Methodist’s "100% healed" policy

violated the ADA, or that the jury could consider

whether Methodist’s stated reason for terminating

Lenker was pretextual. We review the denial of a

motion for judgment as a matter of law de novo,

determining whether the evidence presented and

the reasonable inferences drawn from the evidence

are sufficient to support the verdict when viewed

in a light most favorable to the party against

whom the motion is directed. Emmel v. Coca-Cola

Bottling Co. of Chicago, 95 F.3d 627, 629-30 (7th

Cir. 1996). We review the jury instructions to

determine if, as a whole, they were sufficient to

inform the jury correctly of the applicable law,

reversing only if a particular instruction

misguides the jury to a party’s prejudice. Maltby

v. Winston, 36 F.3d 548, 560 (7th Cir. 1994),

cert. denied, 515 U.S. 1141 (1995).
A.
  Lenker believes he is entitled to judgment as a

matter of law because the hospital engaged in a

directed rather than an interactive process with

him once it learned of his disability. Lenker

contends that Methodist failed to establish that

lifting was an essential element of a nurse’s

job, and that he could not be accommodated. He

protests Methodist’s failure to assess the job of

nurse and his abilities with an eye toward

accommodating him. He maintains that uncontested

evidence supports his view that the hospital

refused to even consider an accommodation.

Following a trial, we are limited in our review

to assessing whether no rational jury could have

found for Methodist. Emmel, 95 F.3d at 630. 
  In determining whether a particular job function

is essential, we are guided by the federal

regulations:
Evidence of whether a particular function is

essential includes, but is not limited to:
(i)  The employer’s judgment as to which

functions are essential;
(ii)  Written job descriptions prepared before

advertising or interviewing applicants for the

job;
(iii)  The amount of time spent on the job

performing the function;
(iv)  The consequences of not requiring the

incumbent to perform the function;
(v)  The terms of a collective bargaining

agreement;
(vi)  The work experience of past incumbent in

the job; and/or
(vii)  The current work experience of incumbents

in similar jobs.
See 29 C.F.R. sec. 1630.2(n)(3). See also R. 67,

Court’s Instruction No. 16 (detailing these

factors for the jury). The jury heard evidence

that Methodist considered lifting an essential

function of the job, that it was part of the job

description for staff nurses, that at times,

staff shortages or emergencies left a nurse

without assistance in a lifting task, and that

the need for lifting was not always predictable

because patients sometimes fell or needed

assistance unexpectedly. Lenker protests that

lifting comprised at most two percent of a

nurse’s day, that devices were available to

assist in lifting patients, and that all nurses

were allowed to use their judgment to determine

whether they needed assistance in a particular

situation and call for other staff to help. The

jury was free to find, however, that those times

of the work day when lifting was required were

essential to the nurse’s job, that a device to

assist in lifting a patient out of bed would not

help a patient walk down the hall or to the

bathroom, and that at times other staff would not

be available to assist. In short, based on

evidence presented by the hospital, the jury was

certainly entitled to find that lifting was an

essential function of a nurse’s job.
  The remaining question is whether Lenker could

be accommodated, and whether the hospital engaged

in an interactive process with him to determine

appropriate accommodations. The hospital offered

evidence that Lenker could not always be assisted

in carrying out this function because of staff

shortages and emergencies. Thus, not only was the

lifting function essential, but Lenker could not

be accommodated as a nurse. This did not relieve

the hospital of its duty to accommodate Lenker in

other ways if possible./1 Because Lenker could

not be accommodated as a nurse, the hospital made

its internal job postings available to him so

that he could apply for other jobs in the

hospital more suited to his abilities. See

Hendricks-Robinson v. Excel Corp., 154 F.3d 685,

694 (7th Cir. 1998) (reasonable accommodation

includes reassignment to a vacant position for

which the employee is qualified); Dalton v.

Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 677-

78 (7th Cir. 1998) (same). Lenker testified that

he would have taken any job, but the hospital

claimed Lenker refused to take any non-nursing

jobs. For whatever reason, Lenker did not obtain

another permanent position at the hospital.

Whether the hospital tried to reasonably

accommodate Lenker with these steps, and whether

Lenker cooperated in the hospital’s attempts to

accommodate him are classic fact questions for

the jury to resolve. The jury appears to have

resolved the issues in the hospital’s favor. We

will not supplant our view of the evidence for

that of a jury in its verdict. Emmel, 95 F.3d at

630 (quoting Hybert v. Hearst Corp., 900 F.2d

1050, 1054 (7th Cir. 1990)). We therefore affirm

the district court’s denial of Lenker’s motion

for judgment as a matter of law.
B.
  The district court rejected Lenker’s proposed

jury instruction regarding the interactive

process. The controversial part of Lenker’s

instruction states that "if you find the

interactive process was one directed by the

defendant and not truly interactive, then this is

a violation of the ADA on the part of the

defendant." Lenker relied on Excel in support of

this instruction. In Excel, the court found that

an employer’s procedure for accommodation was

directive as opposed to interactive where, in

part, the plant nurse unilaterally determined

that employees could not be accommodated in

certain positions. 154 F.3d at 699. Here, the

court declined the instruction because other

instructions already accurately and fully advised

the jury as to what constitutes an interactive

process: 
With regard to this court’s other instructions

that fully advise the jury as to what constitutes

an interactive review process, the court believes

that the language contained in its instructions

does properly reflect the language in the

statute; that the statute specifically does not

reference in this context a directive process as

opposed to an interactive process as being a

violation forbidden. For that reason, the court

declined to use the plaintiff’s tendered

Instruction 17.
Tr. at 784. Although this explanation is somewhat

cryptic, we believe the court was declining the

instruction because the statute says nothing

about a directed versus an interactive process,

and other instructions adequately addressed the

requirement for an interactive process. 
  Our review of the other instructions reveals

that they did, in fact, adequately address the

interactive process. The remaining instructions

informed the jury of the employer’s duty to

analyze the job involved, determine its purpose

and essential functions, as well as the duty to

consult with the employee to determine the

precise job-related limitations imposed by the

disability and how those limitations could be

overcome with a reasonable accommodation. The

court also instructed the jury that the employer

was obliged to identify, in consultation with the

employee, potential accommodations, and to assess

the effectiveness each would have in enabling the

individual to perform the essential functions of

the position. The jury was also instructed that

the employer was to consider the preference of

the individual to be accommodated and then select

the accommodation most appropriate for both the

employee and the employer. Based on this Court’s

decisions, the court also advised the jury that

making these determinations is a cooperative

process, and both the employer and the employee

must make reasonable, good faith efforts:

Neither party should be able to cause a breakdown

in the process for the purpose of either avoiding

or inflicting liability. A party that obstructs

or delays the interactive process is not acting

in good faith. A party that fails to communicate,

by way of initiation or response, may also be

acting in bad faith.
R. 67, Court’s Instruction No. 22. See Feliberty

v. Kemper Corp., 98 F.3d 274, 280 (7th Cir.

1996); Beck v. University of Wisconsin Bd. of

Regents, 75 F.3d 1130, 1135-36 (7th Cir. 1996).

These instructions are accurate statements of the

law, and the jury was not therefore misled by

them. Lenker’s complaint that the concept of

"good faith" was not adequately addressed is

belied by the language we just quoted. As for

Lenker’s insistence on the "directed process"

language, we have repeatedly held that a party is

not entitled to any particular wording, and the

court adequately addressed the interactive

process concept with its instructions on the need

for a cooperative process. See e.g. Russell v.

National R.R. Passenger Corp., 189 F.3d 590, 594

(7th Cir. 1999). We therefore affirm the district

court’s refusal to give Lenker’s alternate

instruction.
C.
  The district court also declined to give

Lenker’s "100% healed" instruction, which reads,

in relevant part:
Additionally, if you find that the Plaintiff has

proven by a preponderance of the evidence that

the Defendant Hospital has a policy that required

the Plaintiff to be "100% healed" or that he must

be "cured" of his disability before he could

return to work as a nurse, then you shall find

that this is a per se violation of the ADA and

should find for the Plaintiff and against the

Defendant.
R. 66, Plaintiff’s Proposed Jury Instruction No.

37. The district court rejected the instruction

because it was unnecessary in light of other

instructions given and because it did not

accurately reflect the law as it related to the

issues presented in this case. Lenker relies on

Excel in support of this instruction. Excel cited

favorably a district of Minnesota case for the

proposition that a policy that requires an

employee to be 100% healed before returning to

work is a per se violation of the ADA because it

does not allow a case-by-case assessment of an

individual’s ability to perform the essential

functions of the job, with or without

accommodation. See Heise v. Genuine Parts Co.,

900 F. Supp. 1137, 1154 n.10 (D. Minn 1995). 
  Lenker claims there was testimony that Methodist

Hospital had such a policy. He cites statements

from hospital personnel that an employee with a

lifting restriction would not be allowed to

return to work until the restriction was removed

because lifting was an essential function of the

job that could not be accommodated. This is a far

cry from saying that Lenker’s MS must be 100%

healed before being allowed to return to work.

The district court was correct that the "100%

healed" instruction was not an accurate

reflection of the law as applied to the facts of

this case. Instead, Lenker’s real objection to

the hospital’s policy was that it decided,

without consulting Lenker, that lifting was an

essential job function that could not be

reasonably accommodated. Other instructions

addressed this issue, and it was for the jury to

decide whether Methodist was justified in its

blanket assessment that nurses who could not lift

could not be accommodated as nurses. It was also

for the jury to decide whether the hospital

adequately accommodated Lenker in other ways,

such as giving him access to internal job

postings, and placing him on layoff status to

give him time to recover his ability to lift.
D.
  The district court also rejected Lenker’s

proposed instruction on the issue of pretext.

Lenker’s instruction tracked the language of the

McDonnell Douglas case, using a burden shifting

analysis. See McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). The instruction explained

that Lenker believed the actions taken against

him were the result of unlawful discrimination in

violation of the ADA, but that the hospital had

advanced non-discriminatory reasons for its

actions. Lenker’s instruction explained that if

this non-discriminatory explanation was not the

true reason for the hospital’s actions, then the

explanation was pretextual. If the jury decided

the explanation was pretextual, they were free to

conclude that the real reason for the hospital’s

action was unlawful discrimination. The district

court rejected this instruction because it found

that a McDonnell Douglas burden-shifting analysis

was inappropriate and unnecessary for an ADA case

under our decision in Bultemeyer v. Fort Wayne

Community Schools, 100 F.3d 1281 (7th Cir. 1996).
  In Bultemeyer, we explained that in a disparate

treatment claim under the ADA, the plaintiff

could use either direct proof or rely on the

burden-shifting method defined in McDonnell

Douglas. 100 F.3d at 1283. However, when a

plaintiff brings a claim under the reasonable

accommodation part of the ADA, the burden-

shifting method of proof is both unnecessary and

inappropriate. We held in Bultemeyer that if the

plaintiff demonstrated that the employer should

have reasonably accommodated the plaintiff’s

disability and did not, the employer has

discriminated under the ADA and is liable. Id.

See also Weigel v. Target Stores, 122 F.3d 461,

464 (7th Cir. 1997). There is no need at that

point for indirect proof or burden shifting.

Because Lenker’s claim was based on reasonable

accommodation and not disparate treatment, the

district court was correct to reject Lenker’s

proposed pretext instruction.
AFFIRMED.
/1 The hospital also tried to accommodate Lenker by

allowing him to go on layoff status so that he

would have time to possibly regain his ability to

lift if his MS went into remission.



Lenker v. Methodist Hospital

Lenker v. Methodist Hospital,
No. 98-4183 (7^th Cir. Apr. 26, 2000)

Plaintiff, a nurse suffering from multiple sclerosis (MS), sued defendant hospital under
the Americans with Disabilities Act (ADA), claiming that the hospital failed
to accommodate his disability and that the termination of his employment violated
the ADA. The plaintiff’s physician restricted the plaintiff from lifting heavy
objects. As a result of this restriction, the hospital granted him a one-year
leave of absence. The defendant also removed the plaintiff from his position
because the hospital considered lifting to be an essential part of his employment
which could not be reasonably accommodated. The Circuit Court affirmed the trial
court jury verdict in favor of the defendant. The court held that the jury heard
sufficient evidence to both conclude that lifting was an essential element of
a nurse’s job and that the hospital had made reasonable efforts to accommodate
the plaintiff such as allowing the plaintiff to take a long leave of absence
and to have access to internal job postings in order to find a less taxing position
within the hospital.

Lee v. Trinity Lutheran Hosp.

HCQIA
IMMUNITY

Lee v. Trinity Lutheran Hosp., No. 04-1553 (8th Cir. May 24, 2005)

A
hospital revoked a physician’s clinical privileges based on the doctor’s
inappropriate usage of two drugs in combination, failure to follow the standard
of care, and inadequate documentation. The physician sued the hospital and
the district court dismissed the suit under the HCQIA immunity. The physician
appealed and the Court of Appeals affirmed the dismissal. The court found
that the doctor did not produce evidence that the hospital’s peer review
process failed to meet the standards of HCQIA and that the hospital did
provide adequate notice and hearing procedures to satisfy HCQIA’s due process
requirement.

Leon v. Hosp. Metropolitano

Case 3:05-cv-01887-RLA Document 111 Filed 02/06/2007 Page 1 of 12(cid:10)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

WALESKA LEON, et al.,
Plaintiffs,
v.
HOSPITAL METROPOLITANO, et al.,
Defendants.

CIVIL NO. 05-1887 (RLA)

ORDER IN THE MATTER OF OUTSTANDING MOTIONS
This action was instituted by the relatives of Migdalia Heyward
Leon claiming that defendants are liable for her death pursuant to
the provisions of the Emergency Treatment and Active Labor Act
(EMTALA), 42 U.S.C. § 1395dd, as well as for malpractice under art.
1802 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, § 5141
(1990).
Named defendants are: Metrohealth, Inc. d/b/a Hospital
Metropolitano, Dr. Luis Correa Ponce, the P.R. Health Department, Dr.
Jose Rossello, Dr. Julio Rivera d/b/a PESI, and Sindicato de
Aseguradores para la Suscripcion Conjunta de Seguro de
Responsabilidad Medico Hospitalaria (“SIMED”).
Defendants have filed various motions seeking to dismiss the
outstanding claims asserted against them which plaintiffs have
opposed. The court having reviewed the arguments submitted by the
parties as well as the documents in the record hereby disposes of the
motions as follows.

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RULE 12(b)(6)
In disposing of motions to dismiss pursuant to Rule 12(b)(6)
Fed. R. Civ. P. the court will accept all factual allegations as true
and will make all reasonable inferences in plaintiff’s favor.
Frazier v. Fairhaven School Com., 276 F.3d 52, 56 (1 Cir. 2002);
st
Alternative Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267
F.3d 30, 33 (1 Cir. 2001); Berezin v. Regency Sav. Bank, 234 F.3d
st
68, 70 (1 Cir. 2000); Tompkins v. United Healthcare of New England,
st
Inc., 203 F.3d 90, 92 (1 Cir. 2000).
st
Our scope of review under this provision is a narrow one.
Dismissal will only be granted if after having taken all well-pleaded
allegations in the complaint as true, the Court finds that plaintiff
is not entitled to relief under any theory. Brown v. Hot, Sexy and
Safer Prods., Inc., 68 F.3d 525, 530 (1st Cir. 1995) cert. den. 116
S.Ct. 1044 (1996); Vartanian v. Monsanto Co., 14 F.3d 697, 700 (1st
Cir. 1994). Further, our role is to examine the complaint to
determine whether plaintiff has adduced sufficient facts to state a
cognizable cause of action. Alternative Energy, 267 F.3d at 36. The
complaint will be dismissed if the court finds that under the facts
as pleaded plaintiff may not prevail on any possible theory.
Berezin, 234 F.3d at 70; Tompkins, 203 F.3d at 93.
FACTUAL BACKGROUND
According to the Third Amended Complaint (docket No. 80), on
August 15, 2004, at approximately 8:30 a.m. fourteen-year old

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Migdalia Heyward Leon was taken by her mother to the Hospital
Metropolitano’s Emergency Room complaining of difficulty breathing,
severe pain in the lower abdominal region, nausea and fever.1
At approximately 7:00 p.m. that same day decedent was
transferred to Hospital Ruiz Arnau, owned and operated by the
Commonwealth of Puerto Rico.2
P.R. HEALTH DEPARTMENT
At the Initial Scheduling Conference plaintiff “clarified for
the record that [the] complaint did not assert any claims under
EMTALA against the RUIZ ARNAU HOSPITAL.” Thus, only the tort claim
3
remains outstanding in these proceedings for any liability arising
from decedent’s treatment at that facility.
According to the complaint, the Hospital Ruiz Arnau is owned by
the Commonwealth of Puerto Rico and operated by the Puerto Rico
Health Department.4
The Eleventh Amendment to the United States Constitution bars
the commencement and prosecution in federal court of suits claiming
damages brought against any state, including Puerto Rico, without its
consent. Toledo v. Sanchez, 454 F.3d 24 (1 Cir. 2006); Fresenius
st

1

2

Third Amended Complaint (docket No. 80) ¶¶ 11-12.
Id. ¶ 17.
Minutes and Order of Initial Scheduling Conference held on
3
November 13, 2006 (docket No. 100).
Third Amended Complaint (docket No. 80) ¶ 6.
4

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CIVIL NO. 05-1887 (RLA)

Page 4

Med. Care Cardiovascular Res., Inc. v. Puerto Rico and Caribbean
Cardiovascular Ctr. Corp., 322 F.3d 56, 61 (1 Cir. 2003); Futura
st
Dev. v. Estado Libre Asociado, 144 F.3d 7, 12-13 (1 Cir. 1998); In
st
re San Juan Dupont Plaza Hotel Fire Lit., 888 F.2d 940, 942 (1 Cir.
st
1989); Ramírez v. P.R. Fire Serv., 715 F.2d 694, 697 (1 Cir. 1983).
st
Eleventh Amendment immunity applies even though the state has
not been named in the suit. Its protection is extended to
governmental entities which are deemed an arm or alter ego of the
state. Royal Caribbean Corp. v. Puerto Rico Ports Auth., 973 F.2d 8,
9-10 (1 Cir. 1992); In re San Juan Dupont Plaza Hotel Fire Lit., 888
st
F.2d at 943-44. In this regard, the Puerto Rico Health Department has
been found to be entitled to Eleventh Amendment immunity. See,
Arecibo Cmty. Health Care, Inc. v. Commonwealth of P.R., 270 F.3d 17
(1 Cir. 2001).
st
Based on the foregoing, we find that the negligence claims
asserted against the Puerto Rico Health Department based on the acts
or omissions of the Hospital Ruiz Arnau personnel are entitled to
Eleventh Amendment immunity and cannot be tried in this forum.5
EMTALA – INDIVIDUAL PHYSICIANS AND PESI
According to the complaint, decedent was treated by codefendant
Dr. Luis Correa Ponce during her stay at the Emergency Room of the

Given our ruling, plaintiffs’ Motion to Amend Complaint
5
(docket No. 106) is DENIED AS MOOT inasmuch as the new allegations
pertain to “an epidemic that developed while deceased minor… was
hospitalized at the Ruiz Arnau Hospital.”

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CIVIL NO. 05-1887 (RLA)

Page 5

Hospital Metropolitano. Plaintiffs further allege that at all
relevant times Drs. Rossello and Rivera, d/b/a PESI, had a contract
with Hospital Metropolitano to provide Emergency Room services. 6
EMTALA was enacted in 1986 in response to an increasing practice
of hospital emergency rooms of rejecting patients with emergency
conditions because they had no medical insurance. “[I]t is clear that
Congress manifested an intent that all patients be treated fairly
when they arrive in the emergency department of a participating
hospital and that all patients who need some treatment will get a
first response at minimum and will not simply be turned away.”
Reynolds, 218 F.3d 78, 83 (1 Cir. 2000). See also, Roubert-Colon
st
v. Hosp. Dr. Pila, 330 F.Supp.2d 38, 42 (D.P.R. 2004). It is
axiomatic that EMTALA was enacted specifically to avoid “dumping” of
patients lacking medical insurance and that it should not be regarded
as a federal medical malpractice statute. Reynolds, 218 F.3d at 83.
See also, Guadalupe v. Negron Agosto, 299 F.3d 15, 21 (1 Cir. 2002)
st
(statute does not create a medical malpractice claim).
EMTALA imposes upon a hospital’s emergency services the duty to
initially screen patients to ascertain whether an emergency medical

Codefendants Drs. Rossello and Rivera disclaim that they
6
provided services to the Hospital as a d/b/a but rather that “PESI is
a medical corporation dedicated to the administration and management
of pediatric emergency rooms”. Motion to Dismiss (docket No. 66)
¶ 20. However, inasmuch as no extrinsic evidence has been submitted
in support thereof we are constrained to the allegations of the
complaint pursuant to the provisions of Rule 12(b)(6).

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CIVIL NO. 05-1887 (RLA)

Page 6

condition exists and if so, to provide the necessary medical
7
examination and treatment as well as to stabilize the patient prior
to his discharge or transfer. Lopez-Soto v. Hawayek, 175 F.3d 170,
8
175 (1 Cir. 1999); Correa v. Hosp. San Francisco, 69 F.3d 1184, 1190
st
(1 Cir. 1995). No improper motive is required to be proved by
st
plaintiff in order to prevail. Roberts v. Galen of Va., Inc., 525
U.S. 249, 119 S.Ct. 685, 142 L.Ed.2d 648 (1999).
It has been consistently held that EMTALA does not provide a
viable claim against individual physicians. Millan v. Hosp. San
Pablo, 389 F.Supp.2d 224, 235 (D.P.R. 2005); Alvarez Torres v. Ryder
Mem’l Hosp., Inc., 308 F.Supp.2d 38, 40 (D.P.R. 2003). See also,
Lebron v. Ashford Presbyterian Cmty. Hosp., 995 F.Supp. 241 (D.P.R.
1998) (summarizing cases). Hence, the EMTALA claim against Dr.
Correa is DISMISSED.
We further find that, even taking plaintiffs’ allegations as
correct, no EMTALA cause of action lies against Drs. Rossello and
Rivera d/b/a as PESI.
EMTALA imposes the duty to screen, stabilize and transfer
requirements upon hospitals. Additionally, its enforcement provision
9
applies to “participating hospital[s]” which the statute defines as
10

7

9

8

42 U.S.C. § 1395dd(a).
42 U.S.C. § 1395dd(b).
42 U.S.C. § 1395dd(a) and (b).
42 U.S.C. § 1395dd(d).
10

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CIVIL NO. 05-1887 (RLA)

Page 7

“a hospital that has entered into a [Medicare] provider agreement.”11
As pointed out by the Court of Appeals in Rodriguez v. Am. Int’l Ins.
Co. of P.R., 402 F.3d 45 (1 Cir. 2005), “[i]t is clear that EMTALA
st
does not apply to all health care facilities; it applies only to
participating hospitals with emergency departments.” 402 F.3d at 48
(emphasis ours). See also, Feliciano Rivera v. Med. & Geriatric
Admin. Serv., Inc., 254 F.Supp. 237 (“Not being a hospital, the CDT
cannot have ‘a hospital emergency department’ as required and
described in § 1395dd(a).”)
Accordingly, the EMTALA claims asserted against Drs. Rossello
and Rivera d/b/a as PESI are DISMISSED. 12
HOSPITAL METROPOLITANO
Hospital Metropolitano joined the request for dismissal of Drs.
Rossello and Rivera essentially arguing that the treatment afforded
decedent did not violate the EMTALA provisions.
Even though defendant labeled its petition as a motion to
dismiss, the inclusion of documents outside the pleadings by both
parties converted it into a summary judgment vehicle pursuant to the
13

11

42 U.S.C. § 1395dd(e).
Even though the EMTALA claims have been dismissed against
12
these parties, the damages claims asserted against them under art.
1802 subsist under our supplemental jurisdiction. See, Millan, 389
F.Supp.2d at 237; Alvarez Torres, 308 F.Supp.2d at 42.
Defendants attached a Certificate of the working relationship
13
between the Hospital Metropolitano and PESI as well as copy of
decedent’s medical record with said institution. Plaintiffs filed a
copy of the report of Dr. Norma Villanueva, their expert witness, as

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CIVIL NO. 05-1887 (RLA)

Page 8

provisions of Rule 12(b) Fed. R. Civ. P. Santiago v. Canon U.S.A.,
Inc., 138 F.3d 1, 4-5 (1 Cir. 1998); Rodriguez v. Fullerton Tires
st
Corp., 115 F.3d 81, 83 (1 Cir. 1997); Vega-Rodriguez v. Puerto Rico
st
Telephone Co., 110 F.3d 174, 177-78 (1 Cir. 1997).
st
Rule 56(c) Fed. R. Civ. P., which sets forth the standard for
ruling on summary judgment motions, in pertinent part provides that
they shall be granted “if 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.” Sands v. Ridefilm Corp., 212 F.3d 657, 660-61 (1st
Cir. 2000); Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 45 (1 Cir.
st
1999). The party seeking summary judgment must first demonstrate the
absence of a genuine issue of material fact in the record.
DeNovellis v. Shalala, 124 F.3d 298, 306 (1 Cir. 1997). A genuine
st
issue exists if there is sufficient evidence supporting the claimed
factual disputes to require a trial. Morris v. Gov’t Dev. Bank of
Puerto Rico, 27 F.3d 746, 748 (1 Cir. 1994); LeBlanc v. Great Am.
st
Ins. Co., 6 F.3d 836, 841 (1 Cir. 1993), cert. denied, 511 U.S.
st
1018, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994). A fact is material if
it might affect the outcome of a lawsuit under the governing law.

well as the autopsy report. See, Motion to File Medical Reports
(docket No. 93).

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Morrissey v. Boston Five Cents Sav. Bank, 54 F. 3d 27, 31 (1 Cir.
st
1995).
In cases where the non-movant party bears the ultimate burden of
proof, he must present definite and competent evidence to rebut a
motion for summary judgment, Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 256-257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Navarro v.
Pfizer Corp., 261 F.3d 90, 94 (1 Cir. 2000); Grant’s Dairy v. Comm’r
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of Maine Dep’t of Agric., 232 F.3d 8, 14 (1 Cir. 2000), and cannot
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rely upon “conclusory allegations, improbable inferences, and
unsupported speculation”. Lopez v. Rubianes, 230 F.3d 409, 412 (1st
Cir. 2000); Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581
(1 Cir. 1994); Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d
st
5, 8 (1 Cir. 1990).
st
The court having reviewed the evidence on file, particularly the
opinion of Dr. Villanueva, finds that issues of material fact
preclude summary judgment at this time regarding the breach of
EMTALA’s duties at the Hospital’s Emergency Room. Plaintiffs’ expert
witness specifically challenged the Hospital’s position on this
matter. Hence, summary judgment is not available on this particular
controversy.

DIVERSITY JURISDICTION
Federal courts are courts of limited jurisdiction and hence,
have the duty to examine their own authority to preside over the
cases assigned. “It is black-letter law that a federal court has an

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obligation to inquire sua sponte into its own subject matter
jurisdiction.” McCulloch v. Velez, 364 F.3d 1, 5 (1 Cir. 2004). See
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also, Bonas v. Town of North Smithfield, 265 F.3d 69, 73 (1 Cir.
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2001) (“Federal courts, being courts of limited jurisdiction, have an
affirmative obligation to examine jurisdictional concerns on their
own initiative.”)
Further, subject matter jurisdiction is not waivable or
forfeited. Rather, because it involves a court’s power to hear a
case, it may be raised at any time. Kontrick v. Ryan, 540 U.S. 443,
124 S.Ct. 906, 157 L.Ed.2d 867 (2004); United States v. Cotton, 535
U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). “The objection that
a federal court lacks subject-matter jurisdiction… may be raised by
a party, or by a court on its own initiative, at any stage in the
litigation, even after trial and the entry of judgment.” Arbaugh v.
Y&H Corp., ___ U.S. ___, 126 S.Ct. 1235, 1240, 163 L.Ed.2d 1097
(2006).
Pursuant to 28 U.S.C. § 1332(a)(1), federal courts have
jurisdiction over claims between “citizens of different states” so
long as the amount in dispute exceeds $75,000.00. The statute
requires complete diversity between the plaintiffs and the
defendants. Id. at 139. In other words, the plaintiffs and the
defendants must be citizens of different states. “[D]iversity
jurisdiction does not exist unless each defendant is a citizen of a
different State from each plaintiff… diversity jurisdiction is not

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to be available when any plaintiff is a citizen of the same State as
any defendant.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365,
373-74, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978) (italics in original).
The complaint asserts § 1332 as alternative jurisdictional
grounds. Specifically, it is alleged that Iris Pacheco, decedent’s
grandmother, resides in New York. Plaintiffs having failed to
14
identify the domicile of the remaining plaintiffs, the court must
assume that they are Puerto Rico residents. It appearing that
defendants are also citizens of Puerto Rico for purposes of the
statute, diversity is destroyed.
Accordingly, plaintiff Iris Pacheco may not assert diversity
jurisdiction in this case.

CONCLUSION
The Motion to Dismiss Second and Third Amended Complaints filed
by the P.R. Health Department (docket No. 75) is GRANTED and the
15
claims asserted against it in these proceedings are hereby DISMISSED
WITHOUT PREJUDICE.

14

Third Amended Complaint (docket No. 80) ¶ 5.
See, Plaintiffs’ Opposition (docket No. 77). See also, Motion
15
to Dismiss (docket No. 29); Plaintiffs’ Opposition (docket No. 30)
and Reply (docket No. 37).

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The Motion to Dismiss filed by Dr. Jose Rossello and Dr. Julio
Rivera (docket No. 66) is GRANTED but limited to the dismissal of
16
the EMTALA claims asserted against them and PESI.
The Motion to Join (docket No. 103) filed by Dr. Luis Correa
Ponce is GRANTED and the EMTALA claims asserted against him are
DISMISSED.
Judgment shall be entered accordingly.
The Hospital Metropolitano’s Motion to Dismiss (docket No. 96)17
is DENIED.
IT IS SO ORDERED.
San Juan, Puerto Rico, this 6 day of February, 2007.
th

S/Raymond L. Acosta
RAYMOND L. ACOSTA
United States District JUDGE

16

17

See, Plaintiffs’ Opposition (docket No. 69).
See, Plaintiffs’ Opposition (docket No. 98).

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Lesley v. Hee Man Chie

Lesley v. Hee Man Chie,

No. 00-1254 (1st Cir. May 22, 2001)

An HIV-positive patient sued her obstetrician-gynecologist alleging denial of treatment
in violation of anti-discrimination laws. The physician had been the woman’s
gynecologist for over ten years. During a pregnancy, it was discovered that
the patient was HIV-positive. The physician had treated patients with HIV in
his gynecological practice but had never delivered the baby of a woman with
HIV. Feeling that that patient would be better treated by a facility that was
more familiar with the treatment of pregnant HIV patients, he recommended a
transfer. The patient said she wanted to be cared for by her physician and to
deliver her baby at her community hospital. The physician refused to continue
to treat the patient and she went to the recommended facility and delivered
a healthy baby.

The woman claimed that her
physician refused to treat her because of her HIV status. The physician argued
that he was inexperienced with AZT, and that AZT was not available at his hospital,
making transfer the most medically sound decision. The district court granted
summary judgment for the physician.

The United States Court
of Appeals for the First Circuit affirmed. The court found that in order to
prove her claim, the woman had to show that she was disabled, that she sought
services from a federally funded entity, that she was otherwise qualified for
those services, and that she was denied those services solely by reason of her
disability. The court found that the woman could not prove that the physician’s
decision to refer her elsewhere “was unreasonable in a way that reveals
it to be discriminatory”and, therefore, summary judgment in the physician’s
favor was appropriate.