
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1167                             GLORIA IVETTE CORREA, a/k/a                         GLORIA IVETTE CORREA GONZALEZ, ET AL.,                                Plaintiffs, Appellees,                                          v.                               HOSPITAL SAN FRANCISCO,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                              _________________________               Igor J. Dominguez on brief for appellant.               _________________               Kevin  G. Little and Law Offices of David Efron on brief for               ________________     __________________________          appellees.                              _________________________                                   October 31, 1995                              _________________________                    SELYA,  Circuit  Judge.   This  appeal  requires us  to                    SELYA,  Circuit  Judge.                            ______________          interpret, for  the first  time, the Emergency  Medical Treatment          and Active Labor Act (EMTALA), 42 U.S.C.   1395dd (1988 & Supp. V          1993).1  After  scrutinizing the record and dovetailing the facts          with the statutory scheme,  we affirm a $700,000 jury  verdict in          favor  of  the  heirs and  survivors  of  Carmen  Gloria Gonzalez          Figueroa  (Ms. Gonzalez) against defendant-appellant Hospital San          Francisco (HSF or the Hospital).          I.  THE FACTS          I.  THE FACTS                    We  are  guided  through  the  thicket  of  conflicting          testimony and the chasmal gaps in the direct evidence by the rule          that,  when the  losing  party protests  the  sufficiency of  the          evidence,  the court of appeals must take  both the facts and the          reasonable inferences  therefrom in the light  most hospitable to          the jury's verdict.  See Sanchez  v. Puerto Rico Oil Co., 37 F.3d                               ___ _______     ___________________          712, 716 (1st  Cir. 1994); Wagenmann v. Adams, 829  F.2d 196, 200                                     _________    _____          (1st Cir. 1987).                    According  to her  son, Angel  Correa, Ms.  Gonzalez, a          sixty-five-year-old widow,  awoke on the morning  of September 6,          1991 "feeling  real bad,"  and experiencing "chills,  cold sweat,          dizziness, [and] chest pains."  She requested that Angel take her          to  the emergency  room  at  HSF  (where  she  had  been  treated          previously).  She arrived there no later than 1:00 p.m.                                        ____________________               1In Wilson v. Atlanticare  Med. Ctr., 868 F.2d 34  (1st Cir.                   ______    ______________________          1989), the plaintiff asked us to consider whether a state statute          prescribing  a medical  malpractice claims  procedure applied  to          suits under EMTALA.  See id. at 35.  We refused, however, because                               ___ ___          the plaintiff had not preserved the issue.  See id. at 35-36.                                                      ___ ___                                          2                    The  evidence is conflicted as to whom she saw and what          that person was told  about her condition.  Angel  testified that          he implored the  receptionist to  have someone "take  care of  my          mother,  because  she  feels sick  and  has  chest  pains."   The          Hospital disagrees, maintaining that its personnel were told only          that Ms.  Gonzalez felt dizzy  and nauseated.   In  any event,  a          Hospital employee  assigned the  patient a number  (forty-seven),          told  her to  bide her  time, and  checked her  medical insurance          card.2   After waiting approximately  one hour, Angel  called his          sister,  Esther Correa,  and asked  her to  relieve him.   Esther          arrived some fifteen  minutes later and Angel  left the premises.          At  that very moment (roughly  2:15 p.m.), he  heard an attendant          calling patient number twenty-four for treatment.                    Now  accompanied   by   her  daughter,   Ms.   Gonzalez          maintained her unproductive vigil for an additional forty-five to          seventy-five minutes.   The Hospital staff  continued blithely to          ignore her.   Weary of waiting, the two women drove to the office          of Dr. Acacia Rojas  Davis (Dr. Rojas), the director  of Hospmed,          arriving  there  between 3:00  and 3:30  p.m.   According  to Dr.          Rojas, a nurse  called from HSF  to advise her  that the  patient          would be coming  to Hospmed for treatment.   Dr. Rojas  said that          this  conversation probably  occurred earlier  that day  (perhaps          around 1:00 p.m.), a datum suggesting that HSF tried to shunt Ms.                                        ____________________               2Ms. Gonzalez's  health insurance plan required  her to seek          routine treatment at Hospmed (a local clinic) during its business          hours,  but  allowed  her  to  see  any  appropriate  health-care          provider in case of an emergency.                                          3          Gonzalez to Hospmed as soon as it scrutinized her insurance card.                    Ms. Gonzalez informed Dr.  Rojas that she was nauseated          and   had  taken  a  double  dose  of  her  high  blood  pressure          medication.  Her blood  pressure was very low (90/60),  and, when          she began vomiting, the physician immediately started intravenous          infusions  of fluids.  She also dispensed medicine to control the          emesis.   Despite these  ministrations, Ms. Gonzalez's  condition          steadily deteriorated.   Dr.  Rojas had to  resuscitate her  soon          after her arrival.  The doctor then attempted to transfer  her to          the Hato  Rey Community  Hospital,  but could  not commandeer  an          ambulance.   As  Dr. Rojas  began preparations  to transport  Ms.          Gonzalez  by van, the patient expired.  Her death, which occurred          at around 4:30 p.m., was attributed to hypovolemic shock.          II.  THE PROCEEDINGS BELOW          II.  THE PROCEEDINGS BELOW                    The plaintiffs    Ms.  Gonzalez's three  adult children          and four of her grandchildren (the progeny of her late son, Felix          Correa, who  had  predeceased her)     brought suit  against  the          Hospital  in the United States District Court for the District of          Puerto  Rico.3     They  alleged  two  violations   of  EMTALA             inappropriate  screening and  improper transfer    and  a pendent          claim of medical malpractice under local law.  Following a trial,          the plaintiffs' case  went to  the jury  on the  two theories  of                                        ____________________               3Although  their complaint  is not  a model of  clarity, the          plaintiffs apparently sued in two  capacities.  As Ms. Gonzalez's          heirs, they  asserted  a representative-capacity  claim  for  her          pain,  suffering,  and related  damages.    As individuals,  they          simultaneously  asserted claims  for  their own  pain, suffering,          mental anguish, and kindred losses.                                          4          EMTALA liability.4  The jury returned a series of special written          findings,  Fed. R. Civ. P. 49(a), assessed $200,000 in damages on          the  decedent's  account (payable  to  the  heirs), and  assessed          $500,000  in damages for the  pain, suffering, and mental anguish          experienced by the  survivors     $100,000 apiece  for the  three          children (Angel,  Esther, and Gloria), and $50,000 apiece for the          four  grandchildren  (Glendalis, Glorimar,  Angelis,  and Sarai).          The district  court denied the Hospital's  post-trial motions for          judgment  as  a matter  of  law, a  new  trial, and  remission of          damages.  This appeal ensued.          III.  THE STATUTORY SCHEME          III.  THE STATUTORY SCHEME                    We  delineate EMTALA's  requirements  in order  to give          definition to the statutory cause of action and place some of its          nuances into perspective.                    As health-care  costs spiralled upward  and third-party          payments  assumed increased importance, Congress became concerned          "about the  increasing number of reports  that hospital emergency          rooms are  refusing to  accept or  treat patients  with emergency          conditions if the patient does not have medical insurance."  H.R.          Rep.  No. 241(I), 99th Cong.,  1st Sess. 27  (1986), reprinted in                                                               _________ __          1986 U.S.C.C.A.N. 42, 605.  Congress enacted EMTALA to allay this          concern.   Needing a  carrot to  make health-care providers  more          receptive  to  the  stick, Congress  simultaneously  amended  the          Social   Security   Act,   conditioning    hospitals'   continued                                        ____________________               4The district  court dismissed the malpractice  claim.  That          ruling is not before us on appeal.                                          5          participation  in  the federal  Medicare  program    a  lucrative          source of  institutional revenue    on  acceptance of  the duties          imposed by the new law.  See 42 U.S.C.   1395dd(a-b), (e)(2); see                                   ___                                  ___          also Abercrombie  v. Osteopathic  Hosp. Founders Ass'n,  950 F.2d          ____ ___________     _________________________________          676, 680 (10th  Cir. 1991);  Brooker v. Desert  Hosp. Corp.,  947                                       _______    ___________________          F.2d 412, 414 (9th Cir. 1991).                    We  have set out the  portions of the  statute that are          most germane  to this  appeal in  an appendix.   For  purposes of          patients  such   as  Ms.   Gonzalez,  EMTALA  has   two  linchpin          provisions.   First,  it requires  that a  participating hospital          afford an appropriate  medical screening to all  persons who come          to  its emergency room seeking medical assistance.  See 42 U.S.C.                                                              ___            1395dd(a).  Second,  it requires that, if an  emergency medical          condition  exists,  the  participating hospital  must  render the          services that are necessary to stabilize the patient's condition,          see  id.    1395dd(b)(1)(A), unless  transferring the  patient to          ___  ___          another facility  is medically indicated and  can be accomplished          with  relative safety, see id.   1395dd(b)(1)(B), (c)(1).  To add                                 ___ ___          bite to its provisions, EMTALA establishes monetary penalties for          noncompliance, see  id.    1395dd(d)(1),  and authorizes  private                         ___  ___          rights  of action against those who  transgress its mandates, see                                                                        ___          id.   1395dd(d)(2).          ___                    To establish an EMTALA violation, a plaintiff must show          that  (1) the  hospital is  a participating hospital,  covered by          EMTALA, that  operates an emergency department  (or an equivalent          treatment  facility); (2)  the  patient arrived  at the  facility                                          6          seeking treatment; and (3) the hospital either (a) did not afford          the patient an appropriate screening in order to determine if she          had an emergency medical  condition, or (b) bade farewell  to the          patient  (whether  by  turning  her  away,  discharging  her,  or          improvidently transferring  her)  without first  stabilizing  the          emergency  medical condition.  See Miller v. Medical Ctr. of S.W.                                         ___ ______    ____________________          La., 22  F.3d 626, 628 (5th  Cir. 1994); Stevison  v. Enid Health          ___                                      ________     ___________          Sys., Inc., 920 F.2d 710, 712 (10th Cir. 1990).          __________                    HSF  attempts   to  read  into  section   1395dd(a)  an          additional requirement:  that  the patient show that she  in fact          suffered from an emergency medical  condition when she arrived at          the emergency room.  But EMTALA imposes no such requirement.  The          statute by its  terms directs a participating hospital to provide          an  appropriate  screening  to  all  who  come to  its  emergency          department.   Thus,  to prove  a violation of  EMTALA's screening          provisions, a plaintiff need not prove that she actually suffered          from an emergency  medical condition when she first  came through          the   portals   of   the   defendant's   facility;  the   failure          appropriately  to  screen, by  itself,  is  sufficient to  ground          liability as long  as the other  elements of the cause  of action          are met.5                                        ____________________               5To be sure,  some courts  have suggested in  dictum that  a          plaintiff  must  show,  as  an  ingredient  of  an  inappropriate          screening  claim, that  she  suffered from  an emergency  medical          condition when she arrived  at the hospital.  See,  e.g., Miller,                                                        ___   ____  ______          22  F.3d at  630 n.8;  Ruiz v.  Kepler, 832  F. Supp.  1444, 1447                                 ____     ______          (D.N.M. 1993); Huckaby v. East Ala. Med. Ctr., 830 F. Supp. 1399,                         _______    ___________________          1402 (M.D. Ala. 1993).  This suggestion finds no purchase  in the          statute's text, and we  reject it.  We note,  however, that while          this distinction may have implications for civil penalties, which                                          7          IV.  ANALYSIS          IV.  ANALYSIS                    HSF assigns  error in  no fewer than  eight iterations.          It debunks the sufficiency of the evidence in  five respects.  It          then  hypothesizes that, even if the evidence on these points can          withstand  an  instructed  verdict,  it  is  so anemic  that  the          district  court should  have  repudiated the  jury's findings  on          liability and  ordered a new trial.  The climax of the Hospital's          asseverational  array  denigrates the  award  of  damages in  two          respects.  After careful perscrutation of both the record and the          rich variety of challenges marshalled by HSF, we affirm.                           A. Sufficiency of the Evidence.                           A. Sufficiency of the Evidence.                              ___________________________                    The  Hospital's multi-pronged  attack  calls into  play          varying  standards of appellate review.  The first five claims of          error  all involve the  sufficiency of the  evidence, and, hence,          are reviewed under a familiar set of rules.                    The district court's denial of a motion for judgment as          a matter  of law poses  a question  of law  and, therefore,  this          court's review of  such a ruling is plenary.   See Gibson v. City                                                         ___ ______    ____          of Cranston,  37 F.3d 731,  735 (1st  Cir. 1994).   In addressing          ___________          such issues on appeal, we must approach the evidence from a coign                                        ____________________          are imposable  irrespective of  resulting harm, see  42 U.S.C.                                                             ___          1395dd(d)(1)(A), the  statutory damage remedy requires  a showing          of  "personal  harm  as  a   direct  result  of  a  participating          hospital's violation of [EMTALA]," id.   1395dd(d)(2)(A).   It is                                             ___          difficult  to imagine  a case  in which  a  patient who  does not          present an  emergency medical  condition will meet  the statute's          causation requirement or  fall within the category  of those whom          it intends  to  protect.   In  all events,  we can  reserve  such          questions for  another day, because the  plaintiffs fairly allege          that Ms. Gonzalez did present an emergency medical condition, the          jury so found, and the evidence to that effect was ample.                                          8          of  vantage identical to that  employed by the  district court in          the first  instance.  See  Rolon-Alvarado v. Municipality  of San                                ___  ______________    ____________________          Juan, 1 F.3d 74, 77 (1st Cir. 1993).  This dictates  that we take          ____          the record in the  light most flattering to the  nonmoving party,          without  probing   the  veracity  of   the  witnesses,  resolving          conflicts  in the  testimony,  or  assaying  the  weight  of  the          evidence.   See  Gibson, 37 F.3d  at 735; Wagenmann,  829 F.2d at                      ___  ______                   _________          200.   We  "may reverse  the  denial of  such  a motion  only  if          reasonable persons could not have reached the conclusion that the          jury embraced."  Sanchez, 37 F.3d at 716.                           _______                    1.  EMTALA Coverage.  The Hospital starts its series of                    1.  EMTALA Coverage.                        _______________          sufficiency  sorties  by  solemnly  stating  that  the  survivors          stumbled  in failing  to  show that  it  is subject  to  EMTALA's          suzerainty.   We need  not tarry.  HSF  tacitly concedes that, in          general, federal courts have jurisdiction over EMTALA claims, see                                                                        ___          Thornton v. Southwest  Detroit Hosp.,  895 F.2d  1131, 1133  (6th          ________    ________________________          Cir.  1990), but  argues  that the  plaintiffs  did not  prove  a          requisite  predicate fact:   that  HSF had  accepted the  federal          government's  carrot  and agreed  to  come under  EMTALA.6   This                                        ____________________               6In its brief, the Hospital treats this issue as implicating          the  court's  subject  matter  jurisdiction.   The  Hospital,  of          course, could have raised the question in that form by a pretrial          motion, see Fed. R.  Civ. P. 12(b)(1), but refrained.   Since the                  ___          defendant did  not so move,  and since the  disputed fact  is one          that  has the  capacity not  only  to oust  the federal  court of          jurisdiction  but also to defeat the claim on the merits (because          the same fact that is needed to support jurisdiction must also be          demonstrated  to the  factfinder in  order for  the plaintiff  to          prevail), an  appellate court should evaluate  the jury's factual          finding  under a  sufficiency-of-the-evidence test.   Cf.  United                                                                ___  ______          States v.  Victoria-Peguero,  920 F.2d  77,  87 (1st  Cir.  1990)          ______     ________________          (undertaking sufficiency-of-the-evidence review following  a jury                                          9          argument has the shrill ring of desperation.                    The  plaintiffs  introduced   into  evidence,   without          objection, HSF's policy statement outlining for its employees and          associates how  the Hospital  intended to ensure  compliance with          EMTALA in  its  emergency room.    The Hospital  solidified  this          proffer  when,  during  the  defense case,  its  health  services          administrator  testified  that  he had  dutifully  instructed his          staff regarding the  fine points of EMTALA compliance.   Evidence          admitted without limitation can be used by the jury on  any issue          in the case.  See, e.g.,  United States v. Castro-Lara, 970  F.2d                        ___  ____   _____________    ___________          976, 981 (1st Cir.  1992), cert. denied, 113 S. Ct.  2935 (1993).                                     _____ ______          Here, the policy statement and the executive's testimony, without          more, formed  a sturdy  basis on  which the  jury could build  an          eminently  reasonable  inference  that  the  Hospital  considered          itself to be   and was   covered by EMTALA.                    HSF strives to topple this edifice, contending that the          policy statement constituted  inadmissible hearsay  and that  the          plaintiffs did  not lay  a proper  foundation for  the document's          introduction.  But in the absence of plain error   and we discern          none  here    these  objections, voiced  for  the first  time  on          appeal,  are deemed  to have  been waived.   See  Suarez-Matos v.                                                       ___  ____________          Ashford Presbyterian Community  Hosp., Inc., 4  F.3d 47, 50  (1st          ___________________________________________          Cir. 1993); Freeman  v. Package  Mach. Co., 865  F.2d 1331,  1336                      _______     __________________                                        ____________________          determination that  a ship  was within territorial  waters, where          such a fact was both a predicate for criminal jurisdiction and an          element of  the  offense charged),  cert.  denied, 500  U.S.  932                                              _____  ______          (1991).                                          10          (1st Cir. 1988); see also Fed. R. Evid. 103.  Hence, the jury had                           ___ ____          a  rational basis  on which  to conclude  that HSF  is  among the          ninety-nine percent of American hospitals covered by EMTALA.                    2.  Failure to Provide Appropriate Screening.  Three of                    2.  Failure to Provide Appropriate Screening.                        ________________________________________          the Hospital's remaining four  sufficiency-of-the-evidence claims          are inextricably intertwined.  These three claims are designed to          illustrate the purported  lack of  any foundation  for a  finding          that HSF  failed  to provide  Ms.  Gonzalez with  an  appropriate          screening upon her appearance  at the emergency room.   The final          sufficiency  claim   is  closely  related  to   the  first  three          initiatives.   In it, HSF posits  that, as long as  a hospital is          not  motivated  by  crass  economic  considerations,  any failure          appropriately  to screen  does not  run afoul  of EMTALA.   These          importunings lack merit.7                                          a.                                          a.                                          __                    We begin this analytic segment by laying a straw man to          rest.   The Hospital asserts that  it had no obligation to screen          because Ms. Gonzalez did not  have an emergency medical condition          when she  reported to its  facility.   This theory of  defense is          doubly  flawed.   For  one thing,  EMTALA requires  participating          hospitals  to provide appropriate screening to  all who enter the          hospitals' emergency departments,  whether or not they are in the          throes of a medical emergency when they arrive.  See supra note 5                                                           ___ _____                                        ____________________               7Because  we uphold  the  jury's finding  that HSF  violated          EMTALA  when  it failed  to  afford Ms.  Gonzalez  an appropriate          screening, we need not  comment upon the jury's finding  that HSF          also  violated EMTALA  by  improperly transferring  Ms.  Gonzalez          before her condition had stabilized.                                          11          and  accompanying text.  For  another thing, the  record does not          compel  a  conclusion  that the  decedent's  emergency  condition          developed only after she consulted Dr. Rojas.                    Angel Correa testified that he told  HSF's receptionist          that  his mother was  experiencing chest pains,  and HSF concedes          that  a patient  of Ms.  Gonzalez's age  who suffered  from chest          pains would be regarded as having an emergency medical condition.          Yet the Hospital asks us to  ignore this evidence in deference to          Dr. Rojas's  testimony that  Ms. Gonzalez  did not  develop chest          pains until some time after she arrived at Hospmed.   There is no          principled  way  in  which  we  can  accommodate  HSF's  request.          Credibility choices are generally for the jury, not for the court          of appeals.   See Cook  v. Rhode Island  Dep't of Mental  Health,                        ___ ____     ______________________________________          Retardation, and Hosps., 10 F.3d 17, 21 (1st Cir. 1993).  What is          _______________________          more,  Dr. Rojas's testimony does not rule out a finding that Ms.          Gonzalez  exhibited  an  emergency  medical  condition  when  she          arrived at  HSF.  The  chest pains  might well  have spurted  and          later  subsided, or,  even  if Ms.  Gonzalez  only complained  of          nausea  and   dizziness,  that  symptomatology   (as  Dr.   Rojas          explained) might  well herald the  onset of an  emergency medical          condition in the  case of  a hypertensive diabetic  (such as  Ms.          Gonzalez).                                          b.                                          b.                                          __                    We next  assess the Hospital's insistence  that it gave          Ms.  Gonzalez  the  same  (suitable) screening  provided  to  all          patients.  EMTALA requires  an appropriate medical screening, but                                          12          does  not explain what constitutes one.  The adjectival phrase is          not self-defining.   See  Cleland v.  Bronson Health  Care Group,                               ___  _______     ___________________________          Inc., 917 F.2d 266, 271 (6th Cir. 1990) ("`Appropriate' is one of          ____          the  most wonderful weasel words  in the dictionary,  and a great          aid  to  the resolution  of disputed  issues  in the  drafting of          legislation.   Who,  after  all, can  be  found to  stand up  for          `inappropriate' treatment or actions of any sort?").  In the last          analysis, appropriateness, like nature, is "a mutable cloud which          is  always and  never the  same."   Ralph Waldo  Emerson, Essays:                                                                    _______          First Series (1841).          ____________                    Be that as it may, the courts have achieved a consensus          on  a  method  of  assessing  the  appropriateness  of a  medical          examination  in  the EMTALA  context.   A  hospital  fulfills its          statutory duty to  screen patients  in its emergency  room if  it          provides  for a  screening examination  reasonably calculated  to          identify  critical  medical  conditions that  may  be  afflicting          symptomatic  patients  and  provides  that   level  of  screening          uniformly   to  all  those   who  present  substantially  similar          complaints.   See Baber v. Hospital  Corp. of Am., 977  F.2d 872,                        ___ _____    ______________________          879 (4th Cir. 1992); Gatewood v. Washington Healthcare Corp., 933                               ________    ___________________________          F.2d   1037,  1041  (D.C.  Cir.  1991).    The  essence  of  this          requirement  is that there be  some screening procedure, and that          it be administered even-handedly.                    We add a  caveat:   EMTALA does not  create a cause  of          action  for medical malpractice.  See Gatewood, 933 F.2d at 1041.                                            ___ ________          Therefore,  a refusal to follow regular screening procedures in a                                          13          particular instance contravenes the  statute, see Baber, 977 F.2d                                                        ___ _____          at 879, but faulty screening, in a particular case, as opposed to          disparate screening  or  refusing  to  screen at  all,  does  not          contravene the statute.   See Brooks v. Maryland Gen.  Hosp., 996                                    ___ ______    ____________________          F.2d 708,  711 (4th Cir.  1993).   In this case,  HSF's delay  in          attending  to  the  patient  was  so  egregious  and  lacking  in          justification  as to amount to an effective denial of a screening          examination.  Thus, we need not decide whether mere negligence in          failing to  expedite screening  would itself violate  the federal          statute.                    To illustrate our point, it should be recalled that HSF          prescribed internal  procedures which  set the parameters  for an          appropriate screening.   HSF's rules, as explicated in its policy          statement,  required its  emergency room  personnel,  inter alia,                                                                _____ ____          promptly to take the vital signs of every patient who visited the          facility, to make  a written record of all such  visits, to treat          patients suffering  from chest  pains as critical  cases, and  to          refer all  critical cases  to an in-house  physician immediately.          From  the evidence  adduced at  trial, especially  Angel Correa's          recollections and  the Hospital's utter inability  to produce any                                                                        ___          records  anent Ms.  Gonzalez's visit,  the jury  reasonably could          have  inferred  that  the Hospital  did  not  measure  up to  the          parameters it had established, and  that the decedent was  denied          the  screening  (monitoring  of  vital signs,  compilation  of  a          written chart, immediate referral  to an in-house physician) that          HSF customarily afforded to persons complaining of chest pains.                                          14                    That ends  the matter.    Bearing in  mind that,  under          EMTALA   1395dd(a),  the same screening examination  must be made          available  to all  similarly situated  patients, see  Brooks, 996                                                           ___  ______          F.2d at 710-11; Baber,  977 F.2d at 881, the  jury's finding that                          _____          HSF denied  Ms. Gonzalez an appropriate  screening examination is          unimpugnable.                                          c.                                          c.                                          __                    In  an  allied  vein,  the Hospital  contends  that  it          neither denied Ms. Gonzalez an  initial screening nor refused her          essential treatment.   Its  point is that  it gave the  patient a          number, and would  have ministered to her  had she waited.   This          contention is spurious.                    First,   according  to  Dr.  Rojas,  HSF  referred  Ms.          Gonzalez  to  Hospmed.    If the  jury  believed  the physician's          testimony   and  we note, as an aside, that  HSF called Dr. Rojas          as its witness   it could well have found that HSF never intended          to treat the decedent,  or, at the least, was  itself responsible          for truncating her  wait.   Second, we think  that regardless  of          motive, a complete  failure to  attend a patient  who presents  a          condition   that  practically  everyone  knows  may  indicate  an          immediate and acute  threat to life can constitute a denial of an          appropriate   medical   screening   examination   under   section          1395dd(a).  Much depends upon circumstances; we recognize that an          emergency  room cannot  serve  everyone simultaneously.   But  we          agree  with  the  court  below  that the  jury  could  rationally          conclude, absent  any  explanation or  mitigating  circumstances,                                          15          that the Hospital's inaction here amounted to a deliberate denial          of screening.  EMTALA should be read to proscribe both actual and          constructive dumping of patients.                                          d.                                          d.                                          __                    HSF   maintains  that   depriving   a  patient   of  an          appropriate screening,  in and  of itself,  will  not support  an          EMTALA claim.   It  suggests that  a hospital can  be liable  for          transgressing  the statute only if economic concerns, such as the          suspicion that the patient  will be unable adequately to  pay her          way,  drive the  hospital's  actions.    Since Ms.  Gonzalez  had          insurance  that  permitted her  hospital  visit  if an  emergency          existed, its thesis continues, its handling of her case could not          have been motivated by  concerns about her ability  to pay.8   As          phrased, this contention raises a question of law, engendering de          novo review.  See  Foster Miller, Inc. v. Babcock  & Wilcox Can.,                        ___  ___________________    ______________________          46 F.3d 138, 147 (1st Cir. 1995).                    Every court  of appeals that has  considered this issue          has  concluded that a desire to shirk the burden of uncompensated          care  is not  a  necessary element  of a  cause  of action  under          EMTALA.  See, e.g., Power v. Arlington Hosp. Ass'n, 42  F.3d 851,                   ___  ____  _____    _____________________          857 (4th Cir. 1994); Collins v.  DePaul Hosp., 963 F.2d 303,  308                               _______     ____________                                        ____________________               8In  all  events, this  argument  is an  oversimplification.          Especially in  the health-care field, all insurance plans are not          created  equal.     Given  the  bewildering   array  of  coverage          conditions,  deductibles,  reimbursement  rates,  and  the  like,          sophisticated but  esurient providers  have ample  provocation to          discriminate not only between  insured and uninsured patients but          also among patients who are insured under different plans.                                          16          (10th  Cir. 1992); Gatewood,  933 F.2d at  1040.9  We  think that                             ________          these  cases are  correctly  decided, and  that  EMTALA does  not          impose  a motive requirement.  The decision on which the Hospital          relies, Nichols v. Estabrook, 741 F. Supp. 325 (D.N.H. 1989), did                  _______    _________          not involve failure  to screen,  but merely a  misdiagnosis.   We          hold, therefore, that EMTALA,  by its terms, covers all  patients          who come to a hospital's emergency  department, and requires that          they be appropriately screened, regardless of insurance status or          ability to pay.  See 42 U.S.C.   1395dd(a).                           ___                                    B.  New Trial.                                    B.  New Trial.                                        _________                    We turn now to the  Hospital's complaint that the lower          court erred in declining to honor its motion for an unconditional          new  trial.   Our  reexamination  of  this  ruling  is  extremely          circumscribed.  Principally because the trial judge saw and heard          the  witnesses in the raw,  his refusal to  uproot a jury verdict          may  only be  reversed for  abuse of  discretion.   See Quinones-                                                              ___ _________          Pacheco  v.  American Airlines,  Inc., 979  F.2d  1, 3  (1st Cir.          _______      ________________________          1992); Veranda Beach  Club Ltd. Partnership v.  Western Sur. Co.,                 ____________________________________     ________________          936 F.2d 1364, 1384 (1st Cir. 1991).  This means, in effect, that          an  appellate  court may  set  aside such  a  ruling  only if  it                                        ____________________               9In Cleland, the  Sixth Circuit held, as have  other courts,                   _______          that  a  fear of  nonpayment is  not  essential to  triggering an          EMTALA  claim.   See  917 F.2d  at  272.   Cleland is  different,                           ___                       _______          however,  in that the  court required there  to be some  motive                                                               ____          whether or not economic    for the disparate treatment.   See id.                                                                    ___ ___          Other  courts have declined to follow the Sixth Circuit's lead in          this respect, see,  e.g., Gatewood, 933 F.2d at 1041  n.3, and we                        ___   ____  ________          agree  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.          _____                                          17          determines that  "the verdict is against  the demonstrable weight          of the credible evidence  or results in a blatant  miscarriage of          justice."  Sanchez, 37 F.3d at 717.                     _______                    Refined  to bare essence, HSF's  claim is that, even if          the plaintiffs introduced enough proof to withstand judgment as a          matter of law, the  verdict defied the weight of  the trustworthy          evidence.    In  support,  the  Hospital  reiterates  the  points          previously discussed,  terming the evidence asthenic  as to HSF's          status under EMTALA  and as  to its purported  violations of  the          law.                    We  will not  repastinate the  ground that  we ploughed          earlier in this opinion.  The evidence regarding the relationship          of  EMTALA to HSF, see supra Part  IV(A)(1), strikes us as rather                             ___ _____          persuasive,  especially since HSF    which could  have supplied a          foolproof  answer  from  its own  records     offered  nothing to          suggest that  it did not  welcome Medicare  patients.  As  to the          other points, see  supra Part IV(A)(2), the jury  heard testimony                        ___  _____          from which  it could have concluded that Ms. Gonzalez went to the          Hospital in critical  condition and received  only a high  number          and  a  cold  shoulder.     Angel  Correa's  credibility  emerged          relatively unscathed  from cross-examination; we cannot fault the          jury either for crediting his recollection or for concluding that          the  Hospital denied Ms.  Gonzalez any vestige  of an appropriate          screening.                    To  be  sure,  the   evidence  in  this  case   is  not          particularly precise.   But facts  at trial, as  in life, do  not                                          18          always appear in black  and white.  Juries and  judges frequently          must distinguish  between manifold shades  of gray.   The limited          review   that  we  can  conduct  convinces   us  that  the  grays          predominate here, that  the jury's finding of EMTALA liability is          within  the spectrum of  acceptable outcomes, and  that the trial          judge did not abuse his discretion in refusing to  paint over the          jury's collective judgment.   No more is exigible.   See Freeman,                                                               ___ _______          865 F.2d at  1333-34 ("The mere fact that a  contrary verdict may          have been equally    or even more easily    supportable furnishes          no cognizable ground for granting a new trial.  If  the weight of          the evidence is  not grotesquely lopsided, it  is irrelevant that          the  judge, were he sitting jury-waived,  would likely have found          the other way.").                                     C.  Damages.                                     C.  Damages.                                         _______                    On  the  final  leg of  our  journey,  we traverse  the          Hospital's two challenges to the award of damages.  In substance,          HSF maintains  (a) that the  plaintiffs may recover  under EMTALA          only  those  damages  stemming   from  the  decedent's  pain  and          suffering,  and  (b)  that  in all  events,  the  jury  exhibited          excessive  generosity.    These  challenges  must  be  considered          separately  for   they  evoke  differing  legal   principles  and          standards of review.                    1.    Recoverable Damages.    Since  questions such  as                    1.    Recoverable Damages.                          ___________________          whether a  statute authorizes damages in  particular instances or          in  favor of  particular  parties are  quintessentially legal  in                                          19          nature, we afford de novo review.  See EEOC v.  Bank of Billings,                                             ___ ____     ________________          758 F.2d 397, 401  (9th Cir.), cert. denied, 474 U.S. 902 (1985);                                         _____ ______          see  also Strickland v. Commissioner, Me.  Dep't of Human Servs.,          ___  ____ __________    ________________________________________          48 F.3d 12, 16 (1st Cir. 1995).  HSF's claim  that the plaintiffs          cannot  recover   damages  under  EMTALA  for   their  own  pain,          suffering, and  anguish falls into this category.  Undertaking de          novo review, we conclude that  this claim is voiced too  late and          augurs too little.                    The  chronology of  the case  speaks volumes  about the          lack of timeliness.  HSF first had the opportunity to assert this          defense in its answer  to the plaintiffs' complaint, but  did not          do  so.   In  its  submissions  ancillary  to  both  the  initial          scheduling conference  and the  pretrial conference, see  Fed. R.                                                               ___          Civ.  P. 16, HSF likewise  omitted any reference  to the defense.          The  latter omission  is  especially significant.   The  pretrial          conference is an important event in the life of a litigated case.          It is  designed to assist the  court in "formulati[ng] .  . . the          issues,   including  the  elimination   of  frivolous  claims  or          defenses."   Fed. R. Civ. P. 16(c)(1).   Along the same line, the          pretrial order is intended  to shape the contours of  the ensuing          trial  by setting forth the legal theories upon which the parties          intend  to  rely.   See  D.P.R.  Loc.  R.  314.3(E).   Here,  HSF                              ___          undermined  these mechanisms.  It failed to assert the defense at          the pretrial conference,  and, consequently, the pretrial  order,          signed by all counsel and entered by the  district court, made no          mention of  any contention  that EMTALA barred  recovery for  the                                          20          heirs' anguish and suffering.                    The Hospital's  neglect continued  up to,  and through,          the trial proper.  In its trial brief,  HSF enumerated only three          legal issues to be considered at trial.  None of these dealt with          the  question of whether  persons other  than patients  (or those          suing in  a patient's behalf) could recover damages under EMTALA.          At the close  of the plaintiffs'  case, HSF unsuccessfully  moved          for judgment as a matter of  law, see Fed. R. Civ. P.  50(a), but                                            ___          without calling the court's  attention to the alleged impropriety          of compensating the plaintiffs for their own pain and  suffering.          At the close of  all the evidence, the Hospital renewed  its Rule          50(a) motion, but did not add any new grounds.  To cinch matters,          the  Hospital  eschewed  any   objection  to  the  trial  court's          inclusion  of   the  plaintiffs'  claims  for   their  own  pain,          suffering, and mental anguish  in the verdict forms and  the jury          instructions.   This was a waiver, pure  and simple.  See Fed. R.                                                                ___          Civ. P. 49(a), 51; see also Putnam Resources v. Pateman, 958 F.2d                             ___ ____ ________________    _______          448, 456 (1st Cir.  1992) ("Silence after instructions, including          instructions on  the form of  the verdict  to be returned  by the          jury, typically constitutes a waiver of any objections.").                    Based  on this  somber record  of inattention,  we hold          that  HSF forfeited the theory  of defense that  it now espouses.          In  reaching  this  conclusion,  we give  special  weight  to the          Hospital's  boycott of the final  pretrial order.   That order is          intended to "control  the subsequent course  of the action,"  and          can  be modified only "to  prevent manifest injustice."   Fed. R.                                          21          Civ. P. 16(e).   An appellate court should  not lightly relieve a          litigant from the condign  consequences of its failure to  list a          theory  of defense  at  that critical  stage of  the proceedings.          See, e.g., Ramirez Pomales v. Becton Dickinson Co., 839 F.2d 1, 3          ___  ____  _______________    ____________________          (1st Cir. 1988) (explaining that issues not included in the final          pretrial  order are generally waived).  If pretrial orders are to          achieve  their  intended  purpose,  "courts  and  litigants  must          ordinarily take  them  seriously."   Roland  M. v.  Concord  Sch.                                               __________     _____________          Comm., 910 F.2d 983, 999 (1st Cir. 1990), cert. denied,  499 U.S.          _____                                     _____ ______          912 (1991).                    While waivers are sometimes overlooked on  appeal, none          of the possible  routes around  HSF's waiver are  passable.   The          suggestion that the  Rule 50(a) motion  preserved the defense  is          little short of jejune.  A motion for judgment as a matter of law          made at the close  of all the evidence preserves  for review only          those grounds specified at the time, and no others.  See Sanchez,                                                               ___ _______          37  F.3d at 723;  Sweeney v. Westvaco  Co., 926 F.2d  29, 37 (1st                            _______    _____________          Cir.), cert. denied, 502 U.S. 899 (1991).  By the same token, the                 _____ ______          suggestion    that   HSF's   post-trial   motion   for   judgment          notwithstanding the verdict   a motion in which HSF for the first          time made a claim that EMTALA did not authorize a recovery by the          plaintiffs for their own pain, suffering, and anguish   saves the          day  is equally  unavailing.   Indeed, this  motion is  a classic          example of a litigant  locking the barn door long after the horse          has bolted.  As the  name implies, a renewed motion for  judgment          as a matter  of law under Fed. R. Civ. P. 50(b) is bounded by the                                          22          movant's earlier Rule 50(a) motion.  The movant cannot use such a          motion  as a vehicle to  introduce a legal  theory not distinctly          articulated  in  its  close-of-evidence  motion  for  a  directed          verdict.   See Sanchez, 37  F.3d at 723;  Perdoni Bros., Inc.  v.                     ___ _______                    ___________________          Concrete Sys., Inc., 35 F.3d 1,  3 (1st Cir. 1994); Systemized of          ___________________                                 _____________          New Eng.,  Inc. v. SCM,  Inc., 732 F.2d  1030, 1035-36  (1st Cir.          _______________    __________          1984); see also  James W.  Moore, 5A Moore's  Federal Practice                    ___ ____                      _________________________          50.08  (2d ed. 1994) (explaining that a motion for judgment after          the  verdict  under  Rule  50(b)   "may  only  be  premised  upon          particular grounds raised in the earlier motion made at the close          of  all  the  evidence,"  and that,  accordingly,  "any  argument          omitted from  the motion  made at the  close of  the evidence  is          waived as a ground for judgment under Rule 50(b)").                    The last  possibility that  we consider relates  to the          reality that the raise-or-waive  rule (like virtually all subsets          of the plain error  principle) admits of an  occasional exception          in the  interests of justice.   Thus,  the court  of appeals  has          discretion to  relieve a  party from  the normal  consequences of          failure to  proffer a defense  in a  timeous manner.   See United                                                                 ___ ______          States  v.  La  Guardia, 902  F.2d  1010,  1013  (1st Cir.  1990)          ______      ___________          (holding  that   "an  appellate  court  has   discretion,  in  an          exceptional case,  to reach virgin issues");  accord Singleton v.                                                        ______ _________          Wulff, 428 U.S. 106,  121 (1976); United States v.  Krynicki, 689          _____                             _____________     ________          F.2d 289, 291-92 (1st Cir. 1982).  But the exceptions are few and          far between, and appellate discretion should not be affirmatively          exercised  unless  error  is   plain  and  the  equities  heavily                                          23          preponderate  in favor of correcting it.  To meet this benchmark,          the  omitted   argument  ordinarily  will  have   to  be  "highly          persuasive,"  and declining to reach  it will have  to portend "a          miscarriage of justice."  Krynicki, 689 F.2d at 292.  Taking into                                    ________          account the dimensions of this obstacle, we discern no compelling          basis for invoking this court's discretion.                    EMTALA looks  to state law, broadly  defined to include          Puerto Rico law,  see 42  U.S.C.    410(h),  1395x(x), anent  the                            ___          availability of damages.  It contains the following instruction:                    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                    . . . .          42 U.S.C.   1395dd(d)(2).  HSF's argument in effect proposes that          we construe the  words "individual" and "direct"  as denoting the          patient herself, and  no one else.   But this is only one  of two          possible constructions of  the statute.   It is  equally open  to          read  the law  as  permitting an  individual  who has  a  special          relationship with  another   say,  a wife deprived  of consortium          or,  as here, a bereaved relative    to sue when she is harmed in          direct  consequence of  an EMTALA  violation inflicted  upon such          other.  When  death results, this reading  would naturally extend          the  statutory prerogative  to  individuals who  are eligible  to          bring survivors' actions  under local  law.  See,  e.g., Lane  v.                                                       ___   ____  ____          Calhoun-Liberty County Hosp. Ass'n, Inc., 846 F. Supp. 1543, 1553          ________________________________________          (N.D. Fla.  1994) (permitting claimants to  recover those damages                                          24          available  to survivors  under  Florida law);  Griffith v.  Mount                                                         ________     _____          Carmel  Med. Ctr.,  842  F.  Supp.  1359,  1365  (D.  Kan.  1994)          _________________          (affirming award of damages to wife and children of a decedent).                    Since  both  readings are  superficially  plausible, we          cannot say it was plain error for the lower court, in the absence          of  any timely  objection, to  interpret the  statute generously,          thus providing remediation for the decedent's heirs comparable to          that  which they would ordinarily  receive under local  law.  See                                                                        ___          Widow of Delgado v. Boston Ins. Co., 101 P.R. Dec. 598, 599-60 (1          ________________    _______________          Official Translation 824, 825)  (1973) (explaining that the heirs          of a  person who  died through  another's negligence  have claims          both for their own suffering and the suffering of the decedent).                    2.    Excessiveness.    HSF's  final  storming  of  the                    2.    Excessiveness.                          _____________          barricades  consists of  a frontal  attack on  the amount  of the          jury's  award  and a  flanking  attack  on Judge  Perez-Gimenez's          decision  not  to trim  it.   Both determinations  are reviewable          under an abuse-of-discretion rubric.  See, e.g., Segal v. Gilbert                                                ___  ____  _____    _______          Color Sys., Inc., 746 F.2d 78, 81 (1st Cir. 1984).          ________________                    This  aspect of the case centers around the size of the          aggregate damage award.  Excessiveness,  like beauty, is often in          the eye of  the beholder.   Accordingly, the  case law  instructs          that  a damage award must endure unless it is "grossly excessive,          inordinate, shocking to the  conscience of the court, or  so high          that it would be a denial of justice to permit it to stand."  Id.                                                                        ___          at  80-81 (quoting Grunenthal v.  Long Island R.R.  Co., 393 U.S.                             __________     _____________________          156, 159 &  n.4 (1968);  internal quotation marks  omitted).   An                                          25          appellate court's normal disinclination  to second-guess a jury's          evaluation of the proper amount of damages is magnified where, as          here,  the  damages entail  a  monetary  valuation of  intangible          losses,  and the trial judge, having seen and heard the witnesses          at  first  hand,  accepts the  jury's  appraisal.    See Ruiz  v.                                                               ___ ____          Gonzalez Caraballo, 929 F.2d 31, 34 (1st Cir. 1991).          __________________                    Measured by this standard, the verdicts in favor of the          survivors are beyond  reproach.  Puerto Rico law  permits certain          close relatives to bring  suits of this type without  requiring a          showing of physical  injury or economic loss.  See P.R. Laws Ann.                                                         ___          tit. 31,    5141 (1990); see  also LaForest  v. Autoridad de  Las                                   ___  ____ ________     _________________          Fuentes Fluviales, 536 F.2d 443, 444-45 (1st Cir. 1976) (applying          _________________          Puerto  Rico  law and  allowing  wrongful  death  action  by  the          decedent's parents  and siblings);  Burke v. Compagnie  Nationale                                              _____    ____________________          Air  France, 699  F. Supp.  1016, 1018 (D.P.R.  1988) (explaining          ___________          that,  under  Puerto  Rico's  Civil Code,  "mental  suffering  is          generally just as compensable as physical harm").                    Here,  the plaintiffs presented  both lay testimony and          expert  opinion evidence  regarding  their pain,  suffering,  and          mental  anguish  (past,  present,  and future).    The  testimony          indicated  that  the  decedent   was  a  matriarchal  figure  who          functioned as the  hub of  the family  circle.   Her son,  Angel,          lived  with her; her  two daughters,  Gloria and  Esther, resided          nearby;  her deceased son's four children   who lost their father          a mere five months  before their grandmother perished    dwelt in          her  home  for  much of  their  lives.    The plaintiffs'  expert                                          26          testified  that all  three  of Ms.  Gonzalez's children  suffered          depression in the wake of their mother's death; and that the four          grandchildren experienced sadness,  suffering and  the like  that          would take up to five years to abate.                    At trial,  HSF neither rebutted this  testimony in kind          nor effectively  impeached it.   On appeal, HSF sends  up a smoke          screen,  resorting to  highly  questionable  practices.    Citing          authority  out of context,  and neglecting to  insert ellipses to          signify textual omissions   its citation of Ruiz, 929 F.2d at 34,                                                      ____          as "authority" for a proposition exactly the opposite of what the          case holds  is a prime example    HSF strains to  carry the heavy          burden  inherent in  challenging  a jury's  award of  damages for          noneconomic loss.  We  find its argument to be  both disingenuous          and unpersuasive.                    Objectively considered, the  record easily supports the          jury's assessment  of damages in favor  of the offspring.   It is          hard to  doubt  that  the  plaintiffs  suffered  when  the  woman          described by one witness as the  trunk of the family tree was cut          down.    The  open  question  involves  the  difficult  chore  of          translating  their  pain, suffering,  and  anguish into  dollars.          This is a matter largely within the jury's ken.   See id.  Taking                                                            ___ ___          into  account  the expert's  testimony  and the  evidence  of the          close-knit family structure, the  sums awarded do not shock    or          even vellicate   our collective conscience.                    This  leaves  the  $200,000  awarded to  the  heirs  on          account of Ms.  Gonzalez's pain and suffering.   Though generous,                                          27          the  jury's assessment  does not outstrip  the bounds  of reason.          Due  to  the   Hospital's  failure  to  provide   even  the  most          rudimentary screening, Ms. Gonzalez spent the few remaining hours          of  her  life in  agony, beset  by  nausea, dizziness,  and chest          pains.  It is hard to imagine    let alone to quantify in dollars            the  sheer terror that  she must  have felt  while waiting  for          medical attention that never came.                    Although HSF  mounts a  series of arguments  crafted to          cast  doubt upon  the size  of the  verdict, these  arguments are          unpersuasive.    This  case,  in which  the  decedent's  travails          extended  over  a  period  of  several  hours,  is  unlike  cases          involving  sudden death in which a  decedent's pain and suffering          is limited to  a few seconds  or, at most,  a matter of  minutes.          See, e.g., Bonn v. Puerto Rico Int'l Airlines, Inc., 518 F.2d 89,          ___  ____  ____    ________________________________          94 (1st  Cir. 1976).   By  like  token, merely  showing that  the          damage  award is  generous in  comparison to  other (hand-picked)          cases  is insufficient to warrant relief.  See Havinga v. Crowley                                                     ___ _______    _______          Towing  & Transp.  Co., 24  F.3d 1480,  1488-89 (1st  Cir. 1994).          ______________________          Finally, it is beside  the point that judges in  the commonwealth          courts frequently  award lesser  sums in wrongful  death actions.          While  EMTALA refers  to  local law  to  determine the  scope  of          damages, see 42  U.S.C.   1395dd(d)(2), this requirement does not                   ___          override  the general rule  that "[a] federal  jury . .  . is not          bound  in  making  its  determination  by  the  amount  that  the          Commonwealth  courts have  awarded or  approved."   LaForest, 536                                                              ________          F.2d at 446-47.                                          28                    To  recapitulate, converting  feelings  such  as  pain,          suffering,  and  mental anguish  into  dollars  is not  an  exact          science.   The  jury is  free "to  harmonize the  verdict at  the          highest or lowest points  for which there is a  sound evidentiary          predicate, or anywhere in between . . . so long as the end result          does not .  . . strike such a dissonant  chord that justice would          be  denied  were the  judgment permitted  to  stand."   Milone v.                                                                  ______          Moceri Family, Inc., 847 F.2d  35, 37 (1st Cir. 1988).   Here, we          ___________________          do not find  the damages assigned by the jury  to cross the outer          limit of  the wide  universe of acceptable  awards.  In  sum, the          damage award in the heirs' favor is neither legally inappropriate          nor so excessive as to necessitate a remittitur.10          V.  CONCLUSION          V.  CONCLUSION                    We need go no further.  HSF has not presented arguments          capable  of  overcoming  the   formidable  hurdles  it  faces  in          challenging  either the  liability  determination  or the  damage          assessment of  a properly  instructed jury.   The judgment  below          must therefore be          Affirmed.          Affirmed.          ________                                        ____________________               10Our endorsement of the damages, including the award to the          heirs  for the decedent's pain and suffering, is fortified by the          trial judge's unconditional seal of approval.  See Ruiz, 929 F.2d                                                         ___ ____          at 34.                                          29                                       APPENDIX                                       APPENDIX                                   EMTALA Excerpts                                   EMTALA Excerpts                                   _______________                         In  the case  of a  hospital that  has  a hospital                    emergency department, if any individual (whether or not                    eligible for benefits  under [Medicare]), comes  to the                    emergency  department  and a  request  is  made on  the                    individual's behalf for examination  or treatment for a                    medical  condition, the  hospital must  provide for  an                    appropriate  medical  screening examination  within the                    capability  of  the  hospital's  emergency  department,                    including ancillary services routinely available to the                    emergency  department, to  determine whether or  not an                    emergency  medical  condition  (within  the  meaning of                    subsection (e)(1) of this section) exists.          42 U.S.C.   1395dd(a).                         If  any  individual (whether  or not  eligible for                    benefits under [Medicare]) 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                                          30                         medical facility in accordance with subsection (c)                         of this section.          42 U.S.C.   1395dd(b)(1).                         If an  individual at  a hospital has  an emergency                    medical condition which has not been stabilized (within                    the meaning of  subsection (e)(3)(b) of  this section),                    the hospital may not transfer the individual unless--                              (A)(i)   the   individual   (or   a   legally                         responsible  person  acting  on  the  individual's                         behalf)  after  being informed  of  the hospital's                         obligations under this section  and of the risk of                         transfer, in writing  requests transfer to another                         medical facility [, or]                              (ii)  a   physician  .  .  .   has  signed  a                         certification  that  based  upon  the  information                         available  at the  time of  transfer, the  medical                         benefits reasonably expected from the provision of                         appropriate medical treatment  at another  medical                         facility  outweigh  the  increased  risks  to  the                         individual . . . and                              (B) the transfer is an appropriate transfer .                         . . [as defined infra].                                         _____          42 U.S.C.   1395dd(c)(1).                         An appropriate transfer to a medical facility is a                    transfer--                              (A)  in  which   the  transferring   hospital                                          31                         provides the medical treatment within its capacity                         which  minimizes  the  risks  to  the individual's                         health . . . ;                              (B) in which the receiving facility--                                   (i)  has  available space  and qualified                              personnel   for   the   treatment    of   the                              individual, and                                   (ii)  has agreed  to accept  transfer of                              the  individual  and  to provide  appropriate                              medical treatment;                              (C) in which the transferring  hospital sends                         to the  receiving facility all  [relevant] medical                         records . . . ; [and]                              (D) in which the transfer is effected through                         qualified personnel  and transportation equipment,                         as  required including  the use  of necessary  and                         medically appropriate life support measures during                         the transfer . . . .          42 U.S.C.   1395dd(c)(2).                         A participating hospital that negligently violates                    a requirement  of this section  is subject  to a  civil                    monetary penalty of  not more  than $50,000 .  . .  for                    each such violation.          42 U.S.C.   1395dd(d)(1)(A).                         Any individual who suffers personal harm                    as   a  direct  result   of  a  participating                                          32                    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.          42 U.S.C.   1395dd(d)(2)(A).                         The term  "emergency medical condition" means  . .                    .                         (A)  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                         serious jeopardy,                         (ii) serious impairment to bodily functions, or                         (iii) serious  dysfunction of any  bodily organ or                         part . . . .          42  U.S.C.   1395dd(e)(1)(A).                         A participating hospital  may not delay  provision                    of   an   appropriate  medical   screening  examination                    required  under  subsection  (a)  of  this  section  or                    further  medical  examination  and  treatment  required                    under  subsection  (b)  of  this section  in  order  to                                          33                    inquire  about the  individual's method  of payment  or                    insurance status.          42 U.S.C.   1395dd(h).                                          34
