          United States Court of Appeals
                     For the First Circuit
No. 11-2297

       HAZEL I. CRUZ-VÁZQUEZ; RAÚL A. CRUZ-RIVERA; LUCY I.
        VÁZQUEZ-RIVERA; CONJUGAL PARTNERSHIP CRUZ-VÁZQUEZ;
       BENJAMÍN MARTÍNEZ-REYES; BENJAMÍN MARTÍNEZ-MORALES;
      NITZA I. REYES; CONJUGAL PARTNERSHIP MARTÍNEZ-REYES,

                     Plaintiffs, Appellants,

                               v.

  MENNONITE GENERAL HOSPITAL, INC.; DR. BRENDA M. TORRES-PÉREZ;
  JOHN DOE; CONJUGAL PARTNERSHIP DOE-TORRES; DR. EDUARDO GÓMEZ-
   TORRES; JANE DOE; CONJUGAL PARTNERSHIP DOE-GÓMEZ; ADVANCED
     OB-GYN, PCS; SIMED; COMPANIES A-Z; PETER POE; MARY MOE,

                     Defendants, Appellees,

     MINERVA DÍAZ-ARISTUD; CONJUGAL PARTNERSHIP GÓMEZ-DÍAZ,

                           Defendants.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO
         [Hon. José Antonio Fusté, U.S. District Judge]


                             Before

                  Torruella, Lipez and Howard,
                         Circuit Judges.


     Pedro F. Soler-Muñiz for appellants.
     Anselmo Irizarry-Irizarry, with whom Matta & Matta, PSC, was
on brief for appellees.



                          May 29, 2013
              TORRUELLA, Circuit Judge.      This appeal concerns whether

the district court erred in dismissing a disparate screening claim

under   the    Emergency   Medical    Treatment    and   Active   Labor   Act

("EMTALA"), 42 U.S.C. § 1395dd.             After carefully reviewing the

record, we vacate the district court's dismissal and remand for

further proceedings.

                              I.     Background

A.   Factual Background

              1.   Cruz-Vázquez's Medical Treatment

              At around 10:15 p.m. on January 4, 2007, Plaintiff-

Appellant Hazel Cruz-Vázquez ("Cruz-Vázquez"), then in her third

trimester of her first pregnancy, arrived at the emergency room of

Defendant-Appellee       Mennonite     General    Hospital   ("Mennonite")

requesting medical services.         She complained of vaginal discharge

and blood spotting but denied experiencing pelvic pain, dysuria or

feverishness.        Cruz-Vázquez also felt fetal movement upon her

arrival to the emergency room.          She was evaluated by the on-duty

emergency physician, Dr. Brenda M. Torres-Pérez ("Dr. Torres"), who

performed a pelvic exam and found that Cruz-Vázquez's cervix was

not dilated.       No other exams were performed.

              At around 10:55 p.m., Dr. Torres called Cruz-Vázquez's

obstetrician, Dr. Eduardo Gómez-Torres ("Dr. Gómez"), who advised

Dr. Torres to administer 0.25mg of Bretine and 50mg of Visatryl, to

discharge Cruz-Vázquez in stable condition, and to instruct her to

                                      -2-
follow up at his private office the following morning at 8:00 a.m.

Dr.   Torres   followed   those   instructions.     Cruz-Vázquez   was

discharged and sent home on January 5, 2007, at 12:15 a.m., less

than two hours after her arrival.        Cruz-Vázquez's condition was

recorded in the medical record as "discharge condition stable."

          Cruz-Vázquez was seen the following morning at 8:14 a.m.

by Dr. Gómez in his private office.       She complained of continued

blood spotting but no pelvic pain.       Dr. Gómez performed a pelvic

exam which revealed a blood collection pool in her vagina and

cervix dilation of seven centimeters.       Cruz-Vázquez's fetus was

floating in breech position.      Dr. Gómez diagnosed Cruz-Vázquez as

suffering from an incompetent cervix, and he recommended that she

be transferred to another hospital.1     Cruz-Vázquez agreed, and she

was transferred in stable condition.

          Following admission to the San Juan City Hospital that

morning, Cruz-Vázquez underwent a cesarean section.      Her baby was

born a living baby girl at 12:12 p.m.     The baby died on January 7,

2007, at 7:57 a.m., due to unspecified reasons.

          2.   Mennonite's Hospital Protocol

          At the time of these facts, Mennonite had in place, and

in full force and effect in all of its facilities, a "Gravid with


1
   It is uncontested that incompetent cervix is a diagnosis given
to patients who have had two or more pregnancy losses in the second
trimester of pregnancy. When a patient suffers from an incompetent
cervix, her cervix is unable to retain a pregnancy in the absence
of contractions or labor.

                                   -3-
3rd Trimester Bleeding" protocol (the "Protocol") which required

that a number of tests and examinations be performed on a patient

presenting bleeding in her third trimester of pregnancy.              The

Protocol   indicated,   for   example,   that   a   speculum   exam   and

examination for a rupture of membranes be performed, and that a

number of laboratory tests be conducted.2

           Mennonite has stipulated that the Protocol was in place

when Cruz-Vázquez was examined on January 4, 2007, and that it

failed to activate or follow that Protocol in her case, including

its requirement that certain tests and laboratory studies be




2
   Mennonite's Protocol listed the following screening procedures
for patients presenting vaginal bleeding in their third trimester:

     1. 3rd trimester bleeding must be differentiated from
     bloody show by speculum exam;
     2. The most likely diagnosis of 3rd trimester bleeding is
     placenta previa or abruption;
     3. The gestational age must be determined;
     4. Look for rupture of membranes;
     5. Fetal movements;
     6. Fetal heart rate tomes by Doppler must be measured;
     7. Vital signs as blood pressure, pulse and temperature
     must be acquired;
     8. The following laboratories must be practiced:
          a. CBC
          b. Urinalisys
          c. Serology
          d. PT, PTT
          e. Platelet count
          f. T & Screen or cross match
          g. Serum fibrinogen, fibrin split product of
          hemorrhage only if > B/P (preeclampsia, eclampsia).
     9. Open a vein with a catheter;
     10. Start ringer Lactate at 125 cc/hr;
     11. Send patient to LR in stretcher.

                                  -4-
performed on patients presenting vaginal bleeding in their third

trimester.

B.   Procedural History

             Cruz-Vázquez3 filed a complaint in the United States

District Court for the District of Puerto Rico alleging that she

arrived at the emergency department of Mennonite on January 4,

2007, with an emergency medical condition as defined by EMTALA, 42

U.S.C.   §   1395dd(e)(1);   that   Mennonite       failed   to   screen   her

appropriately, as required under 42 U.S.C. § 1395dd(a); and that

Mennonite failed to stabilize or properly transfer her before

release on January 5, 2007, thus violating the requirements of 42

U.S.C. § 1395dd(b).

             This case has followed a tortured history subsequent to

that filing.      In March 2009, over a year after the original

complaint was filed, Cruz-Vázquez's case proceeded to trial.               The

trial was truncated by the dismissal of Cruz-Vázquez's expert, Dr.

Carlos Ramírez, on the trial's fourth day, following Mennonite's

oral Daubert challenge and an evidentiary hearing.           See Daubert v.

Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993).                After

granting     Mennonite's   motion   to    exclude   Dr.   Ramírez's   expert

testimony, the district court went on to grant Mennonite's Rule 50


3
  Cruz-Vázquez brings this case on behalf of herself, her husband,
her parents, her deceased child, and in representation of the
conjugal partnership formed between herself and her husband. For
simplicity, we address all plaintiffs collectively as "Cruz-
Vázquez."

                                    -5-
motion for judgment as a matter of law; the court held that

plaintiffs failed to offer proof of crucial elements of their case.

See Cruz-Vázquez v. Mennonite Gen. Hosp., Inc., 613 F. Supp. 2d 202

(D.P.R. 2009).

          Cruz-Vázquez    appealed    to   this   court,   and   at   oral

argument, the issue of subject matter jurisdiction was raised.

Specifically, the undersigned inquired whether, under the facts as

stated in the amended complaint, the district court could properly

exercise federal jurisdiction under EMTALA.       Following our request

for supplemental briefing on jurisdiction, we issued an opinion

vacating the district court's judgment and remanding for further

proceedings.     Specifically, we found that the district court had

abused its discretion when it excluded the expert testimony because

its "reasoning had nothing to do with the scientific validity of

the opinion that Dr. Ramírez proposed to offer or the principles

that underlie it."    Cruz-Vázquez v. Mennonite Gen. Hosp., 613 F.3d

54, 59 (1st Cir. 2010).      Rather, we found, the district court

assessed the expert's potential bias, "a task that is 'properly

left to the jury.'"     Id. (quoting United States v. Carbone, 798

F.2d 21, 25 (1st Cir. 1986)).        Our opinion did not address the

jurisdictional issue.

          In light of the advanced stage of the proceedings below,

the natural progression on remand should have been for the case to

proceed to a new trial.       However, shortly after the case was


                                 -6-
remanded, Mennonite filed a motion for summary judgment "for lack

of federal jurisdiction under EMTALA."           The district court denied

Mennonite's    motion,   finding      that   "Mennonite    had   a    standard

screening procedure, its 'Gravid with 3rd Trimester Bleeding'

protocol, which required certain tests to be performed and which

Mennonite denied to Cruz."         Cruz-Vázquez v. Mennonite Gen. Hosp.,

Inc., No. 08-1236 (JP), 2011 WL 3607669, at *7 (D.P.R. Aug. 15,

2011).   The    court    concluded    that   Plaintiffs    "have     presented

sufficient    evidence   for   a    reasonable    jury    to   conclude    that

Defendants' conduct in failing to apply its 'Gravid with 3rd

Trimester Bleeding' protocol to Cruz violated EMTALA."               Id.

          On the same day summary judgment was denied, Cruz-Vázquez

filed a motion to appoint a new expert, Dr. Frederick González.              On

the following day, the district court granted that motion, ordering

that the expert be available to the parties within ten days.                The

district court also set a date for the jury trial.                   However,

despite the fact that the district court in a prior motion had

already considered and rejected the jurisdiction challenge, and

that our opinion had been silent as to the issue, which could only

be reasonably interpreted to mean that we found no jurisdiction

flaw, the district court requested additional briefing "on the

issue of jurisdiction within 10 days." Mennonite took advantage of

the newly afforded chance to raise the jurisdictional issue and

filed a motion to dismiss "for lack of federal jurisdiction under


                                      -7-
EMTALA." Mennonite's briefing, while framed in name as a motion to

dismiss on jurisdictional grounds, attacked the merits of Cruz-

Vázquez's EMTALA claim, arguing that she had failed to allege

sufficient facts to state an EMTALA claim.

              The district court granted Mennonite's motion and vacated

its prior order denying summary judgment.            In its opinion, the

court labeled Mennonite's motion as a "motion to dismiss for lack

of jurisdiction," but proceeded to address Cruz-Vázquez's EMTALA

claim on its merits.       It found that Dr. Torres' "decision not to

perform additional tests [on Cruz-Vázquez was] not the same as the

denial of screening or egregious delay in screening identified by

the First Circuit in Correa [v. Hosp. San Francisco, 69 F.3d 1184,

1189 (1st Cir. 1995)]," relying on a Fourth Circuit case to hold

that plaintiffs' claims were as to a "faulty" screening rather than

a "disparate" screening.       Cruz-Vázquez v. Mennonite Gen. Hosp.,

Inc.,   No.    08-1236   (JAF/JP),   2011   WL   4381888,   at   *3   (D.P.R.

Sept. 20, 2011) (citing Vickers v. Nash Gen. Hosp., 78 F.3d 139,

144 (4th Cir. 1996)).        It proceeded to dismiss Cruz-Vázquez's

complaint as stating facts limited to a medical malpractice claim,

and holding that "EMTALA does not create a federal cause of action

for medical malpractice."      Id.




                                     -8-
                               II.    Discussion

A.   Cruz-Vázquez's EMTALA Claim

            We   first     address       the   procedural       and    briefing

peculiarities we have inherited on appeal.              The district court

requested that the parties brief "the issue of EMTALA jurisdiction"

well after a four-day trial on the merits, a first appeal vacating

the granting of Mennonite's Rule 50 motion, and all deadlines for

filing dispositive motions.          Cruz-Vázquez v. Mennonite Gen. Hosp.,

No. 08-1236 (JP) (D.P.R. July 9, 2008) (setting deadline for

dispositive motions for January 12, 2009).             However, while we do

not consider whether Mennonite's motion to dismiss was timely

filed, the motion nevertheless constitutes an almost unprecedented

attempt to revisit pleading issues at the latest possible stage.

            Further,     the   proceedings     below   appear     to   confound

jurisdictional with merits-based issues.           While the district court

requested    briefing     on   jurisdictional      issues   and    framed   its

dismissal on those grounds, the legal assessment of Cruz-Vázquez's

EMTALA claim by both the parties and the court focused on whether

her complaint, along with facts stipulated outside the pleadings,

were sufficient to establish a claim.           Specifically, the parties

and the district court assessed whether the screening performed on

Cruz-Vázquez when she presented at Mennonite's emergency room --

and the medical judgment rendered pursuant thereto -- were adequate

to the requirements of EMTALA, rendering her allegations pertaining


                                       -9-
to that screening insufficient on the merits.    Thus, the district

court's opinion and order were erroneous in using a jurisdictional

framework to assess the merits of Cruz-Vázquez's EMTALA claim.

            We do not continue that path.    We review Mennonite's

motion to dismiss as substantively raising challenges to the

complaint's sufficiency pursuant to Fed. R. Civ. P. 12(b)(6),

rather than challenging the district court's federal jurisdiction

pursuant to Fed. R. Civ. P. 12(b)(1).4    However, in light of the

district court's review of materials outside the pleadings,5 we

understand Mennonite's motion to dismiss as having been converted

to a motion for summary judgment pursuant to Fed. R. Civ. P. 12(d).

Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993); see Fed. R. Civ.

P. 12(d).     We accordingly review de novo the district court's

ruling by analyzing the full record below and in the light most

hospitable to the non-moving party.    Euromodas, Inc. v. Zanella,

Ltd., 368 F.3d 11, 16-17 (1st Cir. 2004).       To prevent summary



4
  Both parties in fact frame Cruz-Vázquez's challenge on appeal as
one from "the erroneous granting . . . of a summary judgment motion
for lack of federal jurisdiction."      This further supports our
treatment of the appeal as one from summary judgment.
5
   Specifically, the district court referred in its opinion to
Stipulations of Fact agreed upon by the parties in their Initial
Scheduling Conference Order and to the Statement of Uncontested
Material Facts, which relates relevant information from Cruz-
Vázquez's medical record at Mennonite's emergency room on January 4
and 5, 2007. The district court also referred to the transcript of
defendants' deposition of Cruz-Vázquez's expert, Dr. Carlos
Ramírez, in which he discussed relevant facts as to Cruz-Vázquez's
condition as well as the treatment by Drs. Torres and Gómez.

                               -10-
judgment, "the evidence upon which the nonmovant relies to create

a genuine issue of material fact must be 'significantly probative,'

not merely colorable."        Id. at 17 (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249-50 (1986)).          After such conversion,

"the party to whom the motion is directed can shut down the

machinery only by showing that a trialworthy issue exists."

Collier v. City of Chicopee, 158 F.3d 601, 604 (1st Cir. 1998)

(quoting McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315

(1st Cir. 1995)).6     In this case, the authentic dispute presented

is whether Cruz-Vázquez was adequately screened under EMTALA's

requirements.

            To establish an EMTALA violation, a plaintiff must show

(1) the hospital is a participating hospital, covered by EMTALA,

that operates an emergency department; (2) the plaintiff arrived at

the facility 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)

released    the   patient   without    first   stabilizing    the   emergency




6
  Both parties had ample notice of any conversion as they had just
prepared and submitted summary judgment materials for the district
court's review and cited to information drawn from those materials
in their motion to dismiss briefing.      See Collier v. City of
Chicopee, 158 F.3d 601, 603 (1st Cir. 1998) ("A party is 'fairly
appraised' that the court will in fact be [applying the summary
judgment standard] if that party submits matters outside the
pleadings to the judge and invites consideration of them.")
(quoting Cunningham v. Rothery, 143 F.3d 546, 549 (9th Cir. 1998)).

                                      -11-
medical condition.7       Correa, 69 F.3d at 1190 (citations omitted).

For an EMTALA screening violation, 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."   Id.

            EMTALA     does    not    define        what    an     appropriate         medical

screening     consists    of,     but    we    have        defined       a    participating

hospital's duty as providing an 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.                                 The

essence of     this    requirement        is   that        there    be       some   screening

procedure, and that it be administered even-handedly." Id. at 1192

(internal     citations       omitted).         In     clarifying            the    screening

requirement,    we    have     said     that   "a     refusal to             follow   regular

screening procedures in a particular instance contravenes the

statute, but faulty screening, in a particular case, as opposed to

disparate     screening      or   refusing      to     screen       at       all,   does   not

contravene    the     statute."         Id.    at    1192-93       (internal          citation



7
   Mennonite has stipulated to the first two elements of Cruz-
Vázquez's EMTALA claim: that it is a participating hospital covered
by EMTALA and that Cruz-Vázquez arrived at their facility seeking
treatment.

                                         -12-
omitted).     As a general matter, "[w]hen a hospital prescribes

internal procedures for a screening examination, those internal

procedures 'set the parameters for an appropriate screening.'"

Cruz-Queipo v. Hosp. Español Auxilio Mutuo de P.R., 417 F.3d 67, 70

(1st Cir. 2005) (quoting Correa, 69 F.3d at 1192).

            Whether a hospital's existing screening protocol was

followed    in   a   circumstance    where    triggering   symptoms   were

identified by hospital emergency room staff is thus a touchstone in

gauging uniform treatment.     Id. at 71; Battle v. Memorial Hosp.,

228 F.3d 544, 558 (5th Cir. 2000) ("Evidence that a hospital did

not follow its own screening procedures can support a finding of

EMTALA liability for disparate treatment."); Summers v. Baptist

Medical Ctr. Arkadelphia, 91 F.3d 1132, 1138 (8th Cir. 1996)

("Patients are entitled under EMTALA . . . to be treated as other

similarly situated patients are treated, within the hospital's

capabilities.    It is up to the hospital itself to determine what

its screening procedures will be.          Having done so, it must apply

them alike to all patients.").

            Circumstances where a screening protocol was not followed

when triggering symptoms were identified have been distinguished,

for the purposes of EMTALA coverage, from situations where: (1) no

screening protocol existed, see, e.g., Power v. Arlington Hosp.

Ass'n, 42 F.3d 851, 858-59 (4th Cir. 1994); (2) standard screening

procedures existed but were not followed because no identifiable


                                    -13-
triggering symptoms were presented, see, e.g., Vickers, 78 F.3d at

144; and (3) standard screening procedures were in fact followed

when   identifiable   triggering      symptoms      were     presented    but   an

improper diagnosis resulted, see, e.g., Reynolds v. MaineGeneral

Health, 218 F.3d 78 (1st Cir. 2000).           Both parties stipulate that

a   relevant   screening   protocol         existed    for    female     patients

presenting vaginal bleeding in their third trimester, and that

Mennonite "failed to activate [its] 'Gravid with 3rd Trimester

Bleeding' Protocol in this case."           We thus focus on the district

court's   failure   to   see   how   our     case     law    has   distinguished

allegations regarding a hospital's refusal to follow a regular

screening protocol -- as it undisputedly did in this case -- from

the second and third set of allegations, namely, that a screening

protocol was not followed because no identified symptoms triggered

it or that a screening protocol was followed but resulted in an

improper diagnosis.

           In ordering the dismissal of Cruz-Vázquez's complaint,

the district court held that the alleged facts did not support the

federal claim for failure to screen under EMTALA. Specifically, it

found that

           Dr. Torres made a medical judgment not to
           perform additional tests after performing a
           pelvic examination on Cruz, establishing that
           she was not experiencing any pain, and
           consulting Cruz's private physician.      Dr.
           Torres' decision not to perform additional
           tests is not the same as the denial of


                                     -14-
            screening or egregious delay in screening
            identified by the First Circuit in Correa.

The district court cited to our decision in Reynolds, 218 F.3d at

83-84, and the Fourth Circuit Vickers decision, 78 F.3d at 144, to

support its conclusion that a physician's medical judgment may

properly    substitute   for    the   implementation    of   the   hospital's

internal protocols for the purposes of meeting the appropriate

medical screening requirements of EMTALA.

            In Reynolds, plaintiff's husband was an emergency room

patient who was screened and examined for leg and foot fractures

following a car accident and was released after two surgeries. 218

F.3d at 79-81.     Subsequent to his release, Reynolds died from

pulmonary embolism caused by deep veinous thrombosis ("DVT"), a

form of blood clotting or hypercoagulation.               Id. at 80.     The

district court granted the defendant hospital's motion for summary

judgment, concluding that the facts did not support a federal claim

for failure to screen under EMTALA.            Id.      We affirmed on two

grounds.    Id. at 81-82.      First, we found that the patient was not

experiencing, nor did he complain of, any physiological symptoms

that would trigger standard procedures specific to DVT. Id. at 82.

Second, the only standard screening policy cited by plaintiff was

a general written policy requiring the taking of all presenting

patients'    "complete   histories."         Id.   at   83-84.      Plaintiff

supplemented the evidence of the general written policy with expert

testimony supporting the proposition that a "complete history"

                                      -15-
necessarily included asking questions about any family history of

hypercoagulability in Reynolds' case.             Id. at 84.        However, upon

arrival at the defendant hospital, Reynolds received extensive

screening and treatment for all identified injuries: he was treated

by a triage nurse, was examined by an emergency room physician who

took an oral medical history and ordered a series of laboratory

tests, x-rays, and an abdominal CT scan.               Id. at 79-82.       He was

further evaluated by two consulting doctors (a general surgeon and

an orthopedic surgeon), had two surgeries, was constantly monitored

during his stay and received physical therapy.                Id.

           This case is distinguishable from Reynolds. The court in

Reynolds   found    that   the       expert   testimony    presented     regarding

emergency staff inquiries into family history, in conjunction with

the absence    of   any    more      detailed   hospital     policies,    was   not

sufficient    "to   support      a    finding   that   Mr.   Reynolds    received

materially different screening than did other patients in his

condition," and, further, that it was insufficient to support a

finding that "Mr. Reynolds was 'symptomatic' for" DVT so as to

warrant a screening for that condition.            Id. at 84.       In this case,

however, the hospital's policy was not vague and did not require

expert determinations as to its scope as an abstract matter.

Rather, it very straightforwardly set forth a series of testing

requirements in its "Gravid with 3rd Trimester Bleeding" protocol

for all patients presenting a specific set of symptoms.                   Further,


                                        -16-
Cruz-Vázquez   presented   and   Mennonite    conceded   that,    unlike

Reynolds, she was identified by emergency physicians to have the

requisite symptoms to trigger the Protocol: vaginal bleeding in her

third trimester. Her evidence includes the fact that her examining

physician, Dr. Torres, noted her vaginal bleeding on her medical

record.   Mennonite has further stipulated to the fact that it did

not implement its uniform protocol to Cruz-Vázquez.              This is

sufficient to meet Cruz-Vázquez's factual burden to survive summary

judgment on her disparate screening claim.

          This case is also distinguishable from Vickers.             In

Vickers, the Fourth Circuit affirmed a district court's dismissal

of a disparate screening claim brought by the executor of a

deceased former patient.   78 F.3d at 141.     Vickers arrived at the

defendant hospital's emergency room after being involved in an

altercation in which he fell and landed on his head.        Id.     Upon

arrival, he was extensively examined and diagnosed as suffering

from a "laceration and contusions and multiple substance abuse."

Id. (quotation marks omitted).      After hospital staff repaired

Vicker's lacerations with staple sutures, ordered X-rays of his

cervical spine, and determined that there was no spinal damage,

Vickers was discharged.    Id.   Four days later, Vickers was found

dead, and an autopsy identified the cause of death as "cerebral

herniation and epidural hematoma produced by a fracture of the left

parietal area of Vickers' skull."       Id.


                                 -17-
          Plaintiff   argued    that    Vickers   had   "received   less

screening, both in quantity and quality, than required under the

Act, and less than those other patients presenting in this same

medical condition received."    Id. at 143.    However, upon examining

the allegations, the Fourth Circuit found them to "ultimately

present conventional charges of misdiagnosis," id., stating that

"EMTALA is implicated only when individuals who are perceived to

have the same medical condition receive disparate treatment; it is

not implicated whenever individuals who turn out in fact to have

had the same condition receive disparate treatment," id. at 144.

Therefore, the court ruled, "when an exercise in medical judgment

produces a given diagnosis, the decision to prescribe a treatment

responding to the diagnosis cannot form the basis of an EMTALA

claim of inappropriate screening."       Id.   Treatment decisions, it

found, were fundamentally distinguishable from "disparate treatment

of individuals perceived to have the same condition."        Id.    That

kind of treatment remained "the cornerstone of an EMTALA claim,"

according to the court.   Id.

          Here, the parties do not contest that Cruz-Vázquez did in

fact present symptoms that were perceived by hospital staff as

symptoms that would ordinarily trigger the established Protocol.

Unlike in Vickers, the hospital staff in this case were not blind

to a hidden condition in the emergency patient.         Therefore, the

evidence she proffers does not go to the failure to properly


                                 -18-
diagnose based on a faulty screening, but rather to a failure to

treat her        equally   to    individuals   perceived to     have    her same

condition -- vaginal bleeding in their third trimester.                  She thus

presents the "cornerstone" of an EMTALA screening claim.

            The fact that Cruz-Vázquez was eventually discharged from

Mennonite's emergency room based on the recommendation of her own

treating obstetrician does not change the analysis.                     While we

cannot grant summary judgment to Cruz-Vázquez at this stage, she

has presented evidence that both of her treating physicians were

aware of and had identified her symptoms of vaginal bleeding and

nevertheless failed to perform the requisite tests which "set the

parameters for an appropriate screening" of patients presenting

those   symptoms      --   the    "Gravid     with   3rd   Trimester    Bleeding"

protocol.    This is insufficient to grant summary judgment outright

to Cruz-Vázquez, however, because the evidence in the record is

unclear as to whether the physicians may have justifiably treated

her differently from other patients presenting like symptoms as a

result of additional information they may have had about the

patient or her particular condition.8                We do nevertheless feel

obliged     to     sound    a    cautionary     note.       While   a    treating


8
  The record below is also devoid of critical expert testimony and
any challenges to said testimony. This is because the district
court issued its judgment after it granted Cruz-Vázquez's motion to
appoint an expert witness and Cruz-Vázquez produced his expert
report to the defendants but before defendants had the opportunity
to depose the expert or submit evidence into the record to
challenge the expert witness's report.

                                       -19-
obstetrician's medical judgment may inform whether or not a patient

was sufficiently "like" other patients that come under a given

hospital protocol,   it   should not    be improperly   relied   on   to

entirely bypass the hospital's obligation to equally screen under

the statute.   See Correa, 69 F.3d at 1192 ("[A] refusal to follow

regular screening procedures in a particular instance contravenes

the statute").

                          III.   Conclusion

           Cruz-Vázquez thus presented sufficient evidence to show

that a trialworthy issue exists as to her disparate screening

claim.    We accordingly vacate the district court's judgment and

remand the case for trial on her EMTALA claim as well as her Puerto

Rico law claims. The parties are to bear their own costs in this

appeal.

           Vacated and Remanded.




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