                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 18a0122n.06

                                        Case No. 17-1949
                                                                                      FILED
                          UNITED STATES COURT OF APPEALS                         Mar 09, 2018
                                                                             DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


JAMIE ELMHIRST,                              )
                                             )
       Plaintiff-Appellant,                  )              ON APPEAL FROM THE UNITED
                                             )              STATES DISTRICT COURT FOR
v.                                           )              THE WESTERN DISTRICT OF
                                             )              MICHIGAN
MCLAREN NORTHERN MICHIGAN, d/b/a             )
Northern Michigan Emergency Medicine Center, )
and MCLAREN HEALTH CARE                      )              OPINION
CORPORATION, jointly and severally,          )
                                             )
       Defendants-Appellees.                 )
                                             )

       BEFORE: GILMAN, ROGERS, and STRANCH, Circuit Judges.

       RONALD LEE GILMAN, Circuit Judge. Jamie Elmhirst appeals the dismissal of her

claims, brought under the Emergency Medical Treatment and Active Labor Act (EMTALA),

42 U.S.C. § 1395dd, against McLaren Northern Michigan and McLaren Health Care Corporation

(collectively, the Hospital), where Elmhirst was treated in May 2015. In this suit, Elmhirst

alleges that, although she exhibited symptoms of a dangerous condition known as vertebral

dissection when she arrived at the Hospital’s emergency center and requested treatment, the

Hospital neglected to screen her for that condition and, as a result, discharged her without

stabilizing the condition or even detecting it. She further alleges that the undetected condition

caused her to suffer a stroke shortly thereafter, leaving her permanently disabled.
No. 17-1949, Elmhirst v. McLaren Northern Mich., et al.


       The district court dismissed Elmhirst’s claims because her complaint did not plead any

facts showing that the Hospital’s purported failure to provide an appropriate medical screening

was due to any “improper motive” on its part, as required by Cleland v. Bronson Health Care

Group, Inc., 917 F.2d 266 (6th Cir. 1990). On appeal, Elmhirst does not dispute this defect in

her pleadings, but urges us to abrogate Cleland’s improper-motive requirement because our

sister circuits have uniformly rejected it, and because the Supreme Court has purportedly

disapproved of it as well. The holding in Cleland, however, is binding on this panel. We

therefore AFFIRM the judgment of the district court.

                                     I. BACKGROUND

A.     Factual background

       Elmhirst alleges that in the year before her treatment at the Hospital, she periodically

received treatment from a chiropractor. At her last chiropractic appointment, on April 27, 2015,

the chiropractor manipulated her neck with particular force. Afterwards, Elmhirst experienced

dizziness, headache, nausea, and trouble sleeping. (Id.) She sought treatment at the Hospital

nine days later, “present[ing] . . . with the aforementioned . . . complaints and history of

chiropractic manipulations.” (Id.)

       Elmhirst was examined at the Hospital by Dr. Craig Reynolds, who prescribed a

medicine called Antivert and discharged her with instructions to “take it easy.” Although

Elmhirst exhibited symptoms consistent with vertebral dissection, which is known to result from

excessive chiropractic manipulation of the neck, Dr. Reynolds did not screen her for that

condition. (Id.)

       Elmhirst’s symptoms worsened after her discharge. (Id.) This caused her to return to the

Hospital four days later, where she was examined by Dr. Roger Gietzen, a neurologist. (Id.) He


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No. 17-1949, Elmhirst v. McLaren Northern Mich., et al.


determined that she had suffered a stroke caused by vertebral dissection. (Id.) Dr. Piyush Patel,

an internist at the Hospital, corroborated this assessment and identified chiropractic manipulation

as a potential underlying cause. (Id.)

B.     Procedural background

       Elmhirst filed her complaint in April 2017, alleging that the Hospital (1) failed to provide

her with an appropriate medical screening, in violation of 42 U.S.C. § 1395dd(a), and (2) failed

to stabilize her medical condition before discharging her, in violation of 42 U.S.C. § 1395dd(b).

In response, the Hospital filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of

Civil Procedure.

       Granting that motion, the district court dismissed Elmhirst’s screening claim because her

complaint lacked any factual support for the allegation that the Hospital’s purported failure to

provide an appropriate medical screening was due to any “improper motive” on its part. The

court also dismissed her stabilization claim, reasoning that the Hospital’s failure to detect the

vertebral dissection negated any possibility that it actually knew of her emergency medical

condition at the time of her discharge, such knowledge being an essential element of a

stabilization claim.

       Having dismissed both of Elmhirst’s claims, the district court entered judgment for the

Hospital. This timely appeal followed.

                                         II. ANALYSIS

       Elmhirst appeals the dismissal of both her screening and stabilization claims. Applying

the de novo standard of review, we will examine her arguments as to each claim in turn.

See Kaminski v. Coulter, 865 F.3d 339, 344 (6th Cir. 2017) (“We review a district court’s ruling

on a Rule 12(b)(6) motion de novo.”). In doing so, we “must accept as true all of the allegations


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contained in [the] complaint,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), although we “are not

bound to accept as true a legal conclusion couched as a factual allegation,” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

A.     The district court properly dismissed the screening claim based on Cleland’s
       improper-motive requirement.

       Elmhirst does not contest the district court’s ruling that her complaint fails to satisfy the

requirement of Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266 (6th Cir. 1990), that a

§ 1395dd(a) plaintiff must plead facts showing that the hospital acted with an “improper motive”

in failing to provide an appropriate medical screening. She instead argues that we should

“reconsider” Cleland because our sister circuits have uniformly rejected its motive requirement,

and because the Supreme Court has purportedly disapproved of it as well.

       Section 1395dd(a) requires hospitals to provide “an appropriate medical screening

examination within the capability of the hospital’s emergency department” to “any individual

[who] comes to the emergency department” seeking treatment. 42 U.S.C. § 1395dd(a). In

Cleland, this court interpreted the term “appropriate” to refer to “the motives with which the

hospital acts.” 917 F.2d at 272. The court reached this interpretation in an effort to distinguish a

cause of action under § 1395dd(a) from state-law claims for medical malpractice.            See id.

(reasoning that “the term ‘appropriate’” must “refer to the motives with which the hospital acts”

because the statute “precludes resort to a malpractice or other objective standard of care”);

accord Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 798 (10th Cir. 2001) (noting the “uneasy

intersection between EMTALA and state law medical negligence claims”); Summers v. Baptist

Med. Ctr. Arkadelphia, 91 F.3d 1132, 1137 (8th Cir. 1996) (en banc) (recognizing the rationale

for the improper-motive requirement as “[o]ne way of limiting the potentially sweeping scope of

the statute’s language”).

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No. 17-1949, Elmhirst v. McLaren Northern Mich., et al.


       To flesh out the concept of an improper motive, the court in Cleland then suggested a

number of reasons that “might lead a hospital to give less than standard attention to a person who

arrives at the emergency room,” and which would create liability under § 1395dd(a). 917 F.2d at

272. It particularly noted that Congress had intended EMTALA to address the problem of

“patient dumping,” or discrimination against uninsured or indigent patients in the provision of

emergency care. Id. at 268.

       The bottom line, Cleland said, is that “[a] hospital that provides a substandard (by its

standards) or nonexistent medical screening for any reason (including, without limitation, race,

sex, politics, occupation, education, personal prejudice, drunkenness, spite, etc.) may be liable

under [§ 1395dd(a)].” Id. at 272. Subsequent panels of this court have understood Cleland to

impose a burden on plaintiffs to show that the hospital, in failing to provide an appropriate

medical screening, acted with an “improper motive.” See, e.g., Romine v. St. Joseph Health Sys.,

541 F. App’x 614, 621 (6th Cir. 2013) (noting Cleland’s “improper motive requirement”); Estate

of Taylor v. Paul B. Hall Reg’l Med. Ctr., 182 F.3d 918, 1999 WL 519295, at *2 (6th Cir. 1999)

(per curiam) (unpublished table decision) (concluding, based on Cleland, that the plaintiff’s

claim under § 1395dd(a) “fails on pleading grounds, as there is no allegation in the complaint

that either defendant acted with an improper motive”).

       In the present appeal, Elmhirst argues that we should reconsider Cleland, but she does not

dispute that her complaint offers insufficient factual support for the allegation that the Hospital

acted with an “improper motive.” She has thus waived any argument that her unsupported

allegations regarding the Hospital’s motive satisfy the pleading standard set forth in Twombly,

550 U.S. at 554–70, and Iqbal, 556 U.S. at 677–87.




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No. 17-1949, Elmhirst v. McLaren Northern Mich., et al.


       This leaves us to focus solely on the continuing validity of Cleland itself. We note that

Cleland was the first attempt by any circuit court to interpret § 1395dd(a)’s phrase “appropriate

medical screening” and to distinguish that subsection’s cause of action from state-law claims for

medical malpractice. Since then, several other circuits have weighed in. Each has rejected

Cleland’s improper-motive requirement. See Phillips, 244 F.3d at 798 (“This circuit . . . does not

require any particular motive for EMTALA liability to attach.”); Summers, 91 F.3d at 1138

(“[W]e cannot agree [with Cleland] that . . . evidence of improper motivation is essential.”);

Correa v. Hosp. San Francisco, 69 F.3d 1184, 1193, 1194 n.9 (1st Cir. 1995) (holding that

liability under § 1395dd(a) can attach “regardless of motive”); Power v. Arlington Hosp. Ass’n,

42 F.3d 851, 856–59 (4th Cir. 1994) (“We are persuaded that the D.C. Circuit’s rejection of an

improper motive requirement is indeed the correct approach.”); Gatewood v. Washington

Healthcare Corp., 933 F.2d 1037, 1041–42 (D.C. Cir. 1991) (holding that “any departure from

standard screening procedures constitutes inappropriate screening” and that “[t]he motive for

such departure is not important”).

       These courts have criticized the improper-motive requirement as lacking support in the

statutory text, lacking conceptual coherence, and making a claim unreasonably difficult to prove.

See, e.g., Summers, 91 F.3d at 1137–38 (locating no motive requirement in the statutory text);

Correa, 69 F.3d at 1194 n.9 (agreeing with Power, 42 F.3d at 857, that “the range of improper

motives available under the Cleland standard ‘is so broad as to be no limit at all, and as a

practical matter amounts to not having a motive requirement’”); Power, 42 F.3d at 857

(observing that “there is nothing in the statute itself that requires proof of . . . any . . . improper

motive”); id. at 858 (opining that “having to prove the existence of an improper motive . . .

would make a civil EMTALA claim virtually impossible”).               Whatever the merits of these



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No. 17-1949, Elmhirst v. McLaren Northern Mich., et al.


critiques, the choice of our sister circuits—starting with the District of Columbia Circuit, and

then the Tenth, Fourth, First, and Eighth Circuits—to chart a different path has left the Sixth

Circuit alone on a doctrinal spur.

       The Supreme Court noted this circuit split in Roberts v. Galen of Va., Inc., 525 U.S. 249

(1999) (per curiam), in which it reversed this court’s decision (which was reached based on

Cleland) that proof of an improper motive is necessary for recovery under EMTALA’s provision

requiring that hospitals stabilize patients before transferring or discharging them.         (This

stabilization requirement is set out in § 1395dd(b), whereas the screening requirement that

Cleland addressed appears in § 1395dd(a).) Although Roberts reversed this court’s decision to

import Cleland’s improper-motive requirement from § 1395dd(a) to the different context of

§ 1395dd(b), it left Cleland itself undisturbed, explaining: “The question of the correctness of

the Cleland court’s reading of § 1395dd(a)’s ‘appropriate medical screening’ requirement is not

before us, and we express no opinion on it here.” Id. at 253. The Supreme Court saw fit to

“note, however, that Cleland’s interpretation of [§ 1395dd(a)] is in conflict with the law of other

Circuits which do not read [that provision] as imposing an improper motive requirement.” Id. at

253 n.1.

       Elmhirst contends that despite the Supreme Court’s express disclaimer in Roberts that it

did not intend to opine on the improper-motive requirement in Cleland, we should perceive

disapproval in the Court’s tone. Faced with the Court’s explicit language, however, we do not

read Roberts as abrogating Cleland. Moreover, this court has already considered and rejected the

suggestion that Cleland was vitiated by Roberts. See Romine v. St. Joseph Health Sys., 541 F.

App’x 614, 621 (6th Cir. 2013) (concluding, after a review of Roberts, that “[t]here have been no

decisions by . . . the Supreme Court which negate Cleland”).



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No. 17-1949, Elmhirst v. McLaren Northern Mich., et al.


        Cleland thus remains the law in this circuit, and we are obligated to apply it. See 6th Cir.

(“Published panel opinions are binding on later panels. A published opinion is overruled only by

the court en banc.”); Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985)

(reiterating that a prior panel’s decision “remains controlling authority unless an inconsistent

decision of the United States Supreme Court requires modification of the decision or this Court

sitting en banc overrules the prior decision”).       Accordingly, we are bound by Cleland to

conclude that the district court did not err in dismissing Elmhirst’s screening claim.

        The apparent lopsidedness of the circuit split, however, and the force of the arguments

that have persuaded our sister circuits to coalesce around the approach articulated in Gatewood v.

Washington Healthcare Corp., 933 F.2d 1037 (D.C. Cir. 1991)—to say nothing of the fact that

Cleland constituted the first attempt by any circuit court to interpret § 1395dd(a)—might suggest

that an en banc review of this decision would be appropriate. See Fed. R. App. P. 35(b)(1)(B)

(providing for en banc review if “the proceeding involves one or more questions of exceptional

importance,” such as “an issue on which the panel decision conflicts with the authoritative

decisions of other United States Court of Appeals that have addressed the issue”); Fed. R. App.

P. 35 advisory committee’s note to 1998 amendment (describing as a “strong candidate for a

rehearing en banc” the “situation . . . in which the circuit persists in a conflict created by a pre-

existing decision of the same circuit and no other circuits have joined on that side of the

conflict”).

B.      The district court did not err in dismissing Elmhirst’s stabilization claim because
        her complaint shows that the Hospital lacked actual knowledge of her emergency
        medical condition.

        Elmhirst next challenges the district court’s dismissal of her claim that the Hospital failed

to provide the treatment necessary to stabilize her emergency medical condition before


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No. 17-1949, Elmhirst v. McLaren Northern Mich., et al.


discharging her, as required by § 1395dd(b).          Subsection (b) provides that if a “hospital

determines that the individual [seeking treatment] has an emergency medical condition,” then the

hospital must (unless it transfers the patient in accordance with subsection (c)) “provide . . . for

such further medical examination and such treatment as may be required to stabilize the medical

condition” before discharging the patient. 42 U.S.C. § 1395dd(b).

       Because § 1395dd(b) plainly states that a hospital’s duty to provide the treatment

necessary to stabilize a patient’s emergency medical condition arises only if the hospital actually

detects such a condition, this court has held that a hospital cannot be liable under § 1395dd(b) for

failing to stabilize a condition that it did not detect. See Cleland, 917 F.2d at 271 (“If the

emergency nature of the condition is not detected, the hospital cannot be charged with failure to

stabilize a known emergency condition.”); accord Gatewood, 933 F.2d at 1041 (concluding that,

because “no [emergency medical] condition was diagnosed, . . . the statute’s stabilization and

transfer requirements are therefore inapplicable”).

       Elmhirst’s complaint alleges no facts that plausibly support an inference that the Hospital

actually knew that she was suffering from an emergency medical condition, yet discharged her

anyway.    Her core allegation, in fact, is that the Hospital wrongfully failed to detect her

emergency medical condition. Accordingly, the district court did not err in dismissing her

§ 1395dd(b) stabilization claim.

                                      III. CONCLUSION

       For all of the reasons set forth above, we AFFIRM the judgment of the district court.




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