     Case: 11-50882     Document: 00512012424         Page: 1     Date Filed: 10/08/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          October 8, 2012
                                     No. 11-50882
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ROGER STILES, Husband; SHARLA STILES, Wife,

                                                  Plaintiffs - Appellants

v.

TENET HOSPITALS LIMITED, a Texas Limited Partnership, doing business
as Sierra Medical Center,

                                                  Defendant - Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:09-CV-463


Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
        Proceeding pro se, Roger Stiles (Stiles) and his wife Sharla Stiles (the
Stileses) contest the summary judgment awarded to Tenet Hospitals Limited
d/b/a Sierra Medical Center (SMC), dismissing their claimed violations of the
Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. §
1395dd, during Stiles’ visit to the SMC emergency room (ER) on 3 January 2008.
They assert SMC failed to provide: an appropriate medical screening for Stiles,


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                   No. 11-50882

pursuant to § 1395dd(a); and treatment stabilizing his condition prior to
discharging him, pursuant to § 1395dd(b). They also assert a theory of liability
based on negligence per se, related to SMC’s claimed EMTALA violations.
      A summary judgment is reviewed de novo, applying the same standard as
the district court. E.g., Nickell v. Beau View of Biloxi, L.L.C., 636 F.3d 752, 754
(5th Cir. 2011). A “court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law”. FED. R. CIV. P. 56(a). “Satisfying this
initial burden shifts the burden to the non-moving party to produce evidence of
the existence of a [genuine dispute of] material . . . fact requiring a trial.” Wesley
v. General Drivers, Warehousemen and Helpers Local 745, 660 F.3d 211, 213 (5th
Cir. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)); see also FED.
R. CIV. P. 56(c)(1). “A dispute is genuine if the summary judgment ‘evidence is
such that a reasonable jury could return a verdict for the’ non-movant.” Nickell,
636 F.3d at 754 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)).
      The summary-judgment evidence shows Stiles went to the SMC ER on 24
December 2007, and was found to be suffering from a subdural hematoma.
Surgery was performed, and he was discharged on 30 December 2007. On 3
January 2008, he returned to the ER complaining primarily of a severe
headache.    After various medical tests were performed, his condition was
determined to be non-emergent; he was discharged. The next day, his condition
worsened. He was taken to an emergency room at another hospital, where it
was determined the surgical site was infected.
      Under EMTALA, when an individual presents at a hospital emergency
room requesting treatment of a medical condition, “the hospital must provide for
an appropriate medical screening examination within the capability of the
hospital’s emergency department . . . to determine whether . . . an emergency
medical condition . . . exists”. 42 U.S.C. § 1395dd(a) (emphasis added); see also

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42 U.S.C. § 1395dd(e)(1)(A) (“emergency medical condition” exists where lack of
treatment likely to result in serious risk to health, impairment of bodily
function, or dysfunction of body part). And, if the screening reveals such a
condition, the individual must be provided with stabilizing treatment and
conditions are imposed on the transfer of the individual to another medical
facility. 42 U.S.C. § 1395dd(b) & (c); see also Battle ex rel. Battle v. Memorial
Hosp. at Gulfport, 228 F.3d 544, 557-59 (5th Cir. 2000) (discussing and applying
EMTALA requirements). A private right of action is provided for individuals
who suffer harm directly resulting from a participating hospital’s EMTALA
violation. 42 U.S.C. § 1395dd(d)(2)(A).
      EMTALA was enacted to prevent “‘patient dumping,’ which is the practice
of refusing to treat patients who are unable to pay”. Marshall ex rel. Marshall
v. East Carroll Parish Hosp. Serv. Dist., 134 F.3d 319, 322 (5th Cir. 1998). It
“was not intended to be used as a federal malpractice statute”. Id. “Accordingly,
an EMTALA ‘appropriate medical screening examination’ is not judged by its
proficiency in accurately diagnosing the patient’s illness, but rather by whether
it was performed equitably in comparison to other patients with similar
symptoms.” Id. (citations omitted). If an appropriate screening is provided and
the patient’s condition is determined to be non-emergent, the hospital is not
liable under EMTALA, even in the event of a misdiagnosis that would subject a
provider to liability in a malpractice action under state law. Id. An EMTALA
violation can be shown by demonstrating, inter alia, that a hospital did not
follow its own screening procedures. Battle, 228 F.3d at 558.
      To avoid summary judgment on their inadequate-screening claim, the
Stileses were required to present evidence showing a genuine dispute of material
fact on whether SMC provided an EMTALA-appropriate medical screening
examination. E.g., Marshall, 134 F.3d at 323. On the improper-discharge claim,
they had to show such a genuine dispute on whether SMC personnel had actual
knowledge that Stiles was suffering from an emergency medical condition and,

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if so, that he was not stabilized prior to discharge. Battle, 228 F.3d at 558-59.
The duty to stabilize does not arise merely because the hospital “should have”
or “could have” discovered the emergency condition. See id.
      Because the Stileses are proceeding pro se, our court holds their briefs to
a less stringent standard than those of parties represented by counsel. Haines
v. Kerner, 404 U.S. 519, 520 (1972). They contend genuine disputes of material
fact preclude summary judgment.
      With respect to their inadequate-screening claim, they contend: (1) the
screening on 3 January 2008 violated EMTALA because it “failed to include an
appropriate medical history, an appropriate physical examination, appropriate
radiological studies and appropriate consultation with specialists on-call for the
emergency department”; (2) the results of a blood test performed that day,
showing an elevated white blood cell count, should have been communicated to
Stiles and should have led ER personnel to investigate his condition further; (3)
Stiles was triaged improperly by a nurse as having a non-emergent condition;
(4) there remains an unresolved question of fact whether Stiles was examined
by a physician; (5) “[o]ther patients who had undergone recent surgery would
have been examined by the neurosurgeon or similarly trained individual or at
least a physician”; and (6) Stiles received disparate treatment because the
screening during his first ER visit was more extensive than during his second.
      With respect to their failure-to-stabilize claim, appellants contend: (1)
Stiles’ surgeon should have been consulted when Stiles presented in the ER soon
after his surgery; (2) Stiles’ complaint of swelling, coupled with an elevated
white blood cell count, strongly indicated infection and, therefore, Stiles suffered
from an emergent condition; and (3) Stiles should have been kept in the hospital
for a prolonged period of observation or examination by a neurosurgeon prior to
discharge.
      SMC’s EMTALA policy provides: “A qualified medical person will provide
a medical screening examination to any individual who presents to the facility

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requesting examination and treatment for an emergency condition.” (Emphasis
added.) SMC’s triage-assessment policy provides: “All individuals who come to
the hospital and request examination or treatment will be promptly assessed by
a qualified nurse to determine the appropriate order in which the individual will
receive a medical screening examination based on the acuity of the individual’s
presenting complaint.” (Emphasis added.) SMC’s EMTALA policy defines the
term “medical screening examination” as “the screening process required to
determine with reasonable clinical confidence whether an emergency medical
condition does or does not exist”. Therefore, the triage assessment is not the
“medical screening examination”, but is preliminary to that examination.
Accordingly, whether SMC violated its policy by classifying Stiles’ condition as
non-emergent when he was triaged is not material to appellants’ EMTALA
claim.
      The Stileses do not dispute that an ER physician personally examined
Stiles’ test results and made the determination that Stiles’ condition was non-
emergent. SMC’s EMTALA policy required the physician to “determine whether
. . . an emergency medical condition exist[ed]”–which the physician did. The
policy does not specify that, in doing so, the physician was required to physically
examine the patient rather than rely on the observations of a nurse. And,
contrary to the Stileses’ assertion, SMC’s EMTALA policy does not require post-
surgical patients being examined by their surgeon or a “similarly trained
individual”. The Stileses have not shown a genuine dispute of material fact on
whether SMC failed to follow its policy by failing to provide such an
examination. Thus, they have not shown the district court erred in concluding
the disputed fact on whether Stiles was physically examined by a physician was
immaterial. SMC’s EMTALA policy did not require physical examination by a
physician, and the Stileses did not show other similarly situated patients had
received such an examination.



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      Nor have they shown the district court erred in deciding that Stiles’ having
received a more thorough examination during his first visit to the ER failed to
demonstrate a genuine dispute of material fact on whether he received disparate
treatment during the second. Stiles was found to have an emergent condition
during the first visit but his condition was deemed non-emergent during the
second, meaning the two visits are not comparisons of SMC’s treatment of
“patients with similar symptoms”. Marshall, 134 F.3d at 322.
      Whether the ER physician breached a standard of care in failing to
physically examine Stiles, or was otherwise negligent in determining he did not
have an emergent condition, is not material to the Stileses’ EMTALA claim. Id.
at 322-23. That inquiry would be relevant only in a state-law malpractice or
negligence claim, and EMTALA is not a federal version of such actions. Id.
      In their reply brief, the Stileses contend that, by complaining at the time
of his discharge that his symptoms had worsened, Stiles had essentially
presented for treatment a third time and should have been re-screened. Because
this issue was not asserted in their opening brief, it is not considered. See Yohey
v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
      Because the summary-judgment evidence reflects that the ER physician
determined Stiles’ condition was non-emergent, SMC did not have a duty under
EMTALA to stabilize him prior to discharge. E.g., Battle, 228 F.3d at 558 (“The
duty to stabilize does not arise unless the hospital has actual knowledge that the
patient has an unstabilized medical emergency.”) (citing Marshall, 134 F.3d at
325). The fact that Stiles told a nurse, as he was being discharged, that he was
still in as much pain as when he arrived is immaterial; he had already been
diagnosed, correctly or not, with a benign headache. Pain alone cannot impute
actual knowledge of an emergency medical situation to the hospital. 42 U.S.C.
§ 1395dd(e)(1).
      Because the Stileses failed to establish the essential elements of their
EMTALA claims, they cannot show the district court erred in granting summary

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judgment against their state-law theory of liability of negligence per se, based on
SMC’s claimed failure to comply with EMTALA. Supreme Beef Packers, Inc. v.
Maddox, 67 S.W.3d 453, 455 (Tex. App. 2002) (“Negligence per se is a concept
whereby a legislatively imposed standard of conduct is adopted by the civil
courts as defining the conduct of a reasonably prudent person.”). Accordingly,
we need not consider the district court’s alternative holding that EMTALA is not
a proper basis for a claim of negligence per se under Texas law.
      Finally, in their reply brief, the Stileses contend the district court erred in
refusing to appoint counsel as a guardian ad litem for Stiles. Again, because this
issue was not raised in their opening brief, it is not considered. Yohey, 985 F.2d
at 224-25.
      AFFIRMED.




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