                           UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


SYDNEY S. PETTYJOHN, individually        
and as personal representative of the
estate of Steven Kemp Pettyjohn,
deceased; WALKER PETTYJOHN, III,
                Plaintiffs-Appellants,
                  v.                               No. 01-1140

MISSION-ST. JOSEPH’S HEALTH
SYSTEM, INCORPORATED; SAINT
JOSEPH’S HOSPITAL,
              Defendants-Appellees.
                                         
            Appeal from the United States District Court
      for the Western District of North Carolina, at Asheville.
               Max O. Cogburn, Magistrate Judge.
                         (CA-99-171-1-C)

                       Argued: September 27, 2001

                       Decided: October 30, 2001

      Before WILKINS and WILLIAMS, Circuit Judges, and
              HAMILTON, Senior Circuit Judge.



Affirmed by unpublished per curiam opinion.


                              COUNSEL

ARGUED: Bryant Libby Welch, BRYANT L. WELCH, J.D., PH.D.
& ASSOCIATES, Potomac, Maryland, for Appellants. James Walker
2           PETTYJOHN v. MISSION-ST. JOSEPH’S HEALTH SYS.
Williams, ROBERTS & STEVENS, P.A., Asheville, North Carolina,
for Appellees. ON BRIEF: Sarah O. Rollman, BRYANT L.
WELCH, J.D., PH.D. & ASSOCIATES, Potomac, Maryland, for
Appellants. Gary T. Bruce, ROBERTS & STEVENS, P.A., Asheville,
North Carolina, for Appellees.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).



                               OPINION

PER CURIAM:

   Sydney and Walker Pettyjohn (the Pettyjohns) brought the present
civil action in the United States District Court for the Western District
of North Carolina against St. Joseph’s Hospital, Inc. (the Hospital)
and Mission-St. Joseph’s Health System, Inc. (collectively the Defen-
dants), following the suicide-death of their son Steven Pettyjohn (Ste-
ven).1 The Pettyjohns allege that Steven’s suicide-death resulted from
the Hospital’s failure to stabilize his bipolar disorder prior to releasing
him from its emergency room, in violation of the Emergency Medical
Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd.

   Sydney Pettyjohn, Steven’s mother, filed the action in her individ-
ual capacity and in her capacity as the personal representative of Ste-
ven’s estate, while Walker Pettyjohn filed the action only in his
individual capacity. All parties consented to the action being handled
by a United States Magistrate Judge. See 28 U.S.C. § 636(c). Follow-
ing discovery, the magistrate judge granted summary judgment in
favor of the Defendants with respect to the Pettyjohns’ claims. The
Pettyjohns noted a timely appeal. We affirm.

    1
  The Pettyjohns allege in their complaint that Mission-St. Joseph’s
Health System, Inc. is the successor corporation to the Hospital.
            PETTYJOHN v. MISSION-ST. JOSEPH’S HEALTH SYS.             3
                                   I

   At 8:15 p.m., on Saturday, August 23, 1997, Steven, age twenty-
five, presented himself to the Hospital’s emergency room in Ashe-
ville, North Carolina, complaining of feelings of isolation and depres-
sion.2 Steven had normal vital signs and was under no physical
distress.

  Following an examination by a triage nurse, Steven was promptly
examined by emergency room physician Rita Ann Wilson Ogron,
M.D. (Dr. Ogron), who is board certified in emergency medicine. Dr.
Ogron determined that Steven was physically stable from an emer-
gency medicine standpoint; but she ordered the psychiatric social
worker on call to conduct a comprehensive psychiatric profile of Ste-
ven. Carol Counts-Kuzma (Dr. Counts), who holds a Ph.D. in clinical
psychology, was the psychiatric social worker on call.

   Shortly before Dr. Counts began evaluating Steven, Dr. Counts
telephoned Sydney Pettyjohn at her home in Chatham, Virginia in
order to obtain Steven’s medical history. During that telephone con-
versation, Sydney Pettyjohn told Dr. Counts that, three months ear-
lier, her son had stopped taking the lithium prescribed to control his
bipolar disorder, and that he was experiencing the same symptoms
she had seen prior to his past hospitalizations, including suicidal ide-
ation. She also informed Dr. Counts that Steven had no public or pri-
vate medical insurance.

   Based upon her observations/evaluation of Steven, Dr. Counts
recorded that Steven was depressed and anxious, and had tangential
thought form, flight of ideas, ideas of reference, paranoid trends, and
guilt. Nevertheless, Dr. Counts also described Steven as well
groomed, cooperative, having fair judgment, fair insight, and having
a normally functioning memory.
  2
   Steven regularly received mental health counseling at Blue Ridge
Center in Asheville and had an appointment with a psychiatrist at Blue
Ridge Center on Thursday, August 28, 1997. Steven had a college degree
and was employed by a professional cleaning service at the time he pre-
sented to the Hospital’s emergency room.
4           PETTYJOHN v. MISSION-ST. JOSEPH’S HEALTH SYS.
   Following her comprehensive evaluation of Steven, Dr. Counts
diagnosed him with bipolar disorder, mixed state, but concluded that
his condition was nonetheless stable and that he did not meet involun-
tary commitment criteria.3 According to Dr. Counts, Steven informed
her that he still had lithium available at home, thus he did not need
another prescription.

   Despite Dr. Counts’ conclusion that Steven’s condition was stable,
she offered him admission to the hospital as a comfort measure, but
he declined. Following consultation about Steven’s case between Drs.
Counts and Ogron, Dr. Ogron also concluded that Steven was not sui-
cidal, his condition was stable, and he did not meet involuntary com-
mitment criteria. Accordingly, Steven was discharged with
instructions to resume taking his lithium and to report to Blue Ridge
Center on Monday, August 25, 1997.4 Steven was also informed that
he could return to the Hospital’s emergency room at anytime.

   Notably, prior to Steven’s full discharge from the Hospital’s emer-
gency room, Dr. Counts assisted him in telephoning his mother in
order to update her concerning his condition and treatment plan. After
Steven had finished talking with his mother, Dr. Counts herself again
spoke with Sydney Pettyjohn to learn whether she was comfortable
with Steven’s proposed discharge and treatment plan. Following this
telephone conversation, Dr. Counts recorded in Steven’s medical
record that Sydney Pettyjohn was "in agreement" with Steven’s pro-
posed discharge and treatment plan. (J.A. 218).

   Steven left the Hospital’s emergency room at approximately 11:45
p.m. the same evening that he had arrived. Tragically, Steven commit-
ted suicide approximately six days later. The record does not disclose
whether he received counseling/treatment at Blue Ridge Center
between the time of his discharge from the Hospital’s emergency
room and his death.
    3
    According to Dr. Counts, involuntary commitment criteria "involve[s]
being a danger to yourself or to someone else." (J.A. 104).
  4
    At some point prior to Steven’s discharge, Dr. Ogron also learned that
he had no public or private health insurance.
              PETTYJOHN v. MISSION-ST. JOSEPH’S HEALTH SYS.                   5
                                       II

   In order to survive the Defendants’ motion for summary judgment,
the Pettyjohns have the burden of proffering sufficient evidence from
which a reasonable jury could find, by a preponderance of the evi-
dence, that: (1) Steven had an "emergency medical condition" within
the meaning of EMTALA5 when he presented to the Hospital; (2) the
Hospital actually knew of that condition; and (3) Steven was not sta-
bilized prior to discharge. 42 U.S.C. § 1395dd(b); Baber v. Hospital
Corp. of Am., 977 F.2d 872, 883 (4th Cir. 1992).

   With respect to each of these elements, the Pettyjohns rely almost
exclusively upon the deposition testimony of their expert witness,
psychiatrist Pleas Rogers Geyer, M.D. (Dr. Geyer), who reviewed the
medical records of Steven’s August 23, 1997 visit to the Hospital’s
emergency room prior to giving his deposition testimony in this case.
With respect to the first of the above listed elements, Dr. Geyer testi-
fied that in his expert medical opinion Steven had an emergency med-
ical condition within the meaning of EMTALA when he presented to
the Hospital’s emergency room. The magistrate judge assumed
arguendo that such testimony was sufficient to meet the first element.

   With respect to the second element—whether the Hospital actually
knew of that condition—Dr. Geyer, at most, opined that, based upon
all of the information that Drs. Ogron and Counts recorded in Ste-
ven’s medical record during his visit to the Hospital’s emergency
room, Drs. Ogron and Counts should have known that Steven had an
emergency medical condition within the meaning of EMTALA. The
magistrate judge concluded that such expert opinion evidence was
  5
  Of relevance in the present appeal, EMTALA defines "an emergency
medical condition" as:
      a medical condition manifesting itself by acute symptoms of suf-
      ficient 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) seri-
      ous dysfunction of any bodily organ or part . . . .
42 U.S.C. § 1395dd(e)(1)(A).
6           PETTYJOHN v. MISSION-ST. JOSEPH’S HEALTH SYS.
insufficient to meet the Pettyjohns’ burden of proving actual knowl-
edge on the part of the Hospital of the severity of Steven’s condition.
In this regard, the magistrate judge emphasized that "the medical
record is clear that [the Defendants] not only identified the disease
from which [Steven] was suffering, but also the severity of the symp-
toms, and determined that he was stable." (J.A. 415). Thus, the magis-
trate judge reasoned, "[t]he [H]ospital’s perception of the severity of
the diagnosis cannot be separated from the diagnosis itself." Id. The
magistrate judge finally concluded that, at most, Dr. Geyer’s testi-
mony supports medical malpractice claims, which the law clearly
states are beyond the scope of EMTALA. Vickers v. Nash Gen. Hosp.,
Inc., 78 F.3d 139, 143 (4th Cir. 1996) (EMTALA "does not provide
a cause of action for routine charges of misdiagnosis or malprac-
tice.").

   We agree with the magistrate judge that Dr. Geyer’s deposition tes-
timony is insufficient for a reasonable jury to find that Drs. Ogron
and/or Counts actually knew that Steven had an emergency medical
condition within the meaning of EMTALA. At most, Dr. Geyer’s tes-
timony supports possible medical malpractice claims, which claims
plainly fall outside the scope of EMTALA. Vickers, 78 F.3d at 143
(EMTALA "does not provide a cause of action for routine charges of
misdiagnosis or malpractice."); Baber, 977 F.2d at 880 ("Questions
regarding whether a physician or other hospital personnel failed prop-
erly to diagnose or treat a patient’s condition are best resolved under
existing and developing state negligence and medical malpractice the-
ories of recovery."). We also note the absence in the record of any
evidence suggesting that the Hospital has ever treated another patient
with symptoms the same as or similar to Steven more aggressively
than it treated Steven. The absence is significant to our analysis given
that "disparate treatment of individuals perceived to have the same
condition is the cornerstone of an EMTALA claim . . . ." Vickers, 78
F.3d at 144. In short, we agree with the magistrate judge that the Pet-
tyjohns did not carry their evidentiary burden with respect to the
actual knowledge element of an EMTALA failure to stabilize claim.
Accordingly, we affirm the grant of summary judgment in favor of
the Defendants on this basis.

                                                           AFFIRMED
