218 F.3d 78 (1st Cir. 2000)
CINDY REYNOLDS, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF WILLIAM D. REYNOLDS; TINA MOORE, AS NEXT FRIEND OF KELLIANN RAE REYNOLDS, A MINOR; Plaintiffs, Appellants,v.MAINEGENERAL HEALTH, Defendant, Appellee.
No. 99-2153
United States Court of Appeals For the First Circuit
Heard May 12, 2000Decided July 17, 2000

1
Joseph M. Jabar, with whom Daviau, Jabar & Batten and DavidaM.  Glasser were on brief, for appellants.


2
George C. Schelling, with whom Gross, Minsky, Mogul & Singal,  P.A. was on brief, for appellee.


3
Before: Torruella, Chief Judge, Lipez, Circuit Judge, and Keeton,* District Judge.


4
KEETON, District Judge.


5
This appeal requires us to  interpret the scope of coverage under the Emergency Medical  Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd, for  secondary risks associated with emergency conditions.  After  reviewing the record in light of the statutory scheme, we affirm  the district court's summary judgment in favor of defendant-appellee MaineGeneral Health.

I.  The Facts

6
Because we are reviewing the district court's summary  judgment in favor of defendant-appellee, we recite the facts in the  light most favorable to the plaintiffs-appellants.  See Fed. R.  Civ. P. 56.


7
On September 8, 1996, William D. Reynolds was driving a  car that collided head-on with another vehicle.  As a result of the  accident, Mr. Reynolds suffered various injuries including several  fractures of bones in his lower right leg and left foot. Mr. Reynolds was taken immediately by ambulance from the accident  scene to the emergency room of Kennebec Valley Medical Center (now  known as the MaineGeneral Medical Center and referred to throughout  this opinion for convenience as "MaineGeneral" or the "hospital"). After an emergency room nurse had triaged Mr. Reynolds, he was  examined by Dr. Harry Grimmnitz, the emergency room physician. Dr. Grimmnitz evaluated Mr. Reynolds, took an oral medical history,  and ordered a series of laboratory tests, x-rays, and an abdominal  CT scan.  After considering this information, Dr. Grimmnitz  determined that Mr. Reynolds suffered from multiple trauma to his  lower right leg, including a probable open fracture of the right  tibia and fibula and possible fracture of the left foot, and from  a possible intra-abdominal injury.


8
Dr. Grimmnitz then requested consultations from  Dr. Alexander Wall, a surgeon, and Dr. Anthony Mancini, an  orthopedic surgeon.  Dr. Wall reported slight right upper quadrant  tenderness with a negative CT scan of the abdomen.  Dr. Mancini  examined Mr. Reynolds in the emergency room and took another oral  medical history.  Dr. Mancini determined that the injuries to  Mr. Reynolds' lower extremities required surgery.  Mr. Reynolds was  transferred to the operating room where Dr. Mancini performed a  closed reduction and intramedullary rodding of the right tibia  fracture and a closed reduction and percutaneous pinning of the  left second, third, and fourth metatarsal neck and head fractures. Following surgery, Mr. Reynolds was admitted to the hospital floor,  where the hospital staff monitored his condition and he began  receiving physical therapy.


9
On September 13, 1996, Mr. Reynolds was returned to the  operating room for closure of his right lower leg wound.  On  September 14, 1996, he was discharged from the hospital.  On  September 19, 1996, he died of a massive pulmonary embolism that  emanated from deep veinous thrombosis ("DVT") at the fracture site  on his right leg.


10
Plaintiffs proffered the affidavit of Mr. Reynolds'  mother-in-law, Shirley Kimball, who was in the emergency room at  MaineGeneral after the accident but before Mr. Reynolds had  surgery.  Ms. Kimball states that she saw a man in a white lab coat  ask Mr. Reynolds if he had any allergies or medical problems of  which the hospital should be aware.  Ms. Kimball alleges that  Mr. Reynolds told the man "that his family had a blood clotting  problem on his father's and brothers' side of the family whenever  they had a trauma."  Appendix to Appellants' Brief at 130.


11
Plaintiffs proffered the affidavits of several family  members, each of whom alleges that he or she told a MaineGeneral  employee in the hospital room after Mr. Reynolds underwent surgery  that Mr. Reynolds had a family history of hypercoagulability.

II.  Procedural Background

12
On September 8, 1998, plaintiff-appellant Cindy Reynolds,  widow of the decedent William D. Reynolds, filed a complaint in the  United States District Court for the District of Maine in her  personal capacity and as the personal representative of the Estate  of the decedent.  Mr. Reynolds' minor daughter, Kelliann Reynolds,  is also a plaintiff-appellant.  The complaint alleged that  Mr. Reynolds presented to the emergency department at MaineGeneral  on September 8, 1996, with an emergency medical condition as  defined by EMTALA, 42 U.S.C. § 1395dd(e)(1); that MaineGeneral  failed to screen Mr. Reynolds appropriately for DVT, as required  under 42 U.S.C. § 1395dd(a); and that MaineGeneral failed to  stabilize Mr. Reynolds for DVT before releasing him on  September 14, 1996, thus violating the requirements of 42 U.S.C  § 1395dd(b).


13
In a memorandum of decision dated September 8, 1999,  Magistrate Judge Beaulieu granted defendant-appellee's motion for  summary judgment, having concluded that the facts did not support  a federal claim for failure to screen under EMTALA even though they  supported a state-law claim for negligent diagnosis and treatment. Magistrate Judge Beaulieu further held that plaintiffs' claim for  failure to stabilize fails as a matter of law because the hospital  was not aware that Mr. Reynolds was suffering from DVT.  Plaintiffs  filed their notice of appeal to this court on October 6, 1999.

III.  Merits of the Appeal
A.  Screening Claim

14
At issue in this case is the precise scope of a  participating hospital's duty to screen for risks or related  conditions associated with or aggravated by an emergency medical  condition.  In this instance, MaineGeneral does not dispute that  William Reynolds suffered from an emergency medical condition at  the time he arrived in the emergency room.  The parties agree that the injuries to Mr. Reynolds' lower extremities constituted an  emergency medical condition requiring appropriate screening and  stabilization before discharge or transfer.  In dispute is the  answer to the following question:  Does the increased risk of DVT  associated with this type of injury, combined with Mr. Reynolds'  family history of hypercoagulability, trigger a duty to screen for  DVT?


15
Appellants argue that the risk of DVT constituted a  discrete "emergency medical condition," which required screening  and stabilization under EMTALA, just as the fractures of the lower  extremities required screening and stabilization.  Appellee  contends that the increased risk of DVT was not an "emergency  medical condition" within the meaning of EMTALA and did not require  particularized screening or stabilization.  Appellee argues  generally that risks and conditions associated with or following  from emergency medical conditions that do not constitute  independent "emergency medical conditions" within the meaning of  EMTALA will not fall within the requirements of EMTALA.  In  evaluating these arguments, we consider three analytically  separable propositions.


16
First.  Appellants' first argument is premised on a  meaning of "symptom" that we cannot accept.  Appellants argue that  summary judgment was not appropriate because Mr. Reynolds was  exhibiting symptoms of an emergency medical condition - DVT - when  he came to the emergency room.  Appellants contend that this court  should interpret the word "symptom" in EMTALA's definition of  "emergency medical condition" to include any evidence or  communication of information that an emergency medical condition  may exist.  Appellants allege first that injuries to the lower  extremities such as those suffered by Mr. Reynolds create a  substantial risk of the development of DVT.  They contend that the  knowledge that Mr. Reynolds' injuries indicated a risk of DVT  should be construed as a "symptom" under EMTALA, warranting further  screening and stabilization.  Appellants argue alternatively that  Mr. Reynolds' alleged statement that he had a family history of  hypercoagulability, combined with the particular injuries,  constituted a "symptom" of an emergency medical condition.  The  hospital's failure to screen when confronted with these symptoms of  DVT, appellants aver, violates EMTALA's screening requirement.


17
Appellants' proposed interpretation of "symptoms" is  contrary to ordinary usage, not supported by statutory text or  purpose, and not supported in caselaw.


18
EMTALA defines "emergency medical condition" as follows,  in pertinent part:


19
(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 -


20
(i) placing the health of the individual . . . in  serious jeopardy,


21
(ii) serious impairment to bodily functions, or


22
(iii) serious dysfunction of any bodily organ or  part . . . .


23
42 U.S.C. § 1395dd(e)(1).  Appellee argues that information about  family history provided by a patient, without any accompanying  psychological or physiological symptoms, cannot reasonably be  understood to be an "acute symptom[] of sufficient severity" that  is "manifest[ed]" by a "medical condition."


24
We need not and do not adopt this more circuitous path of  reasoning instead of the direct inference that the words of the  statute, in their literal context, do not support appellants'  proposed meanings of "symptoms."


25
Caselaw provides no clear answer to the issue of  statutory interpretation before us.


26
A patient who communicates that she feels nauseous or  dizzy could be describing a symptom of an emergency medical  condition.  See Correa v. Hospital San Francisco, 69 F.3d 1184,  1192 (1st Cir. 1995) ("[N]ausea and dizziness ... might well herald  the onset of an emergency medical condition in the case of a  hypertensive diabetic.").  In such a case the condition manifests  itself by the dizziness or nausea, a symptom that is then  communicated verbally by the patient.  Information about risk-factors, such as injuries or medical history, would inform a  physician's interpretation of that symptom.  Nausea and dizziness  alone do not necessarily indicate that an emergency medical  condition exists but, when coupled with a history of hypertension  and diabetes, as in Correa, may indicate the presence of an  emergency medical condition.  Several important differences exist,  however, between the facts of this case and those of Correa. First, the patient in Correa was at the time of the examination  experiencing physiological symptoms of a pathological condition,  symptoms that were communicated to the staff of the emergency  department.  Here, Mr. Reynolds was not experiencing any  physiological symptoms of DVT that he expressed to anyone at  MaineGeneral.  Also, the patient in Correa came to the emergency  room complaining of these symptoms and received no screening or  treatment for any condition that she may have had.  Here,  Mr. Reynolds was brought to the emergency room with significant  trauma to his lower legs for which he received extensive screening  and treatment.  Although appellants ask us to accept as compelling  an analogy between the absence of any screening and treatment in Correa and the lack of screening and treatment for DVT here, we  find this argument unpersuasive.


27
Second.  Appellants claim that a court (including this  court) should hold in this case that, for purposes of applying  EMTALA's screening requirement, Mr. Reynolds came to the emergency  department twice.


28
Appellants cite Lopez-Soto v. Hawayek, 175 F.3d 170 (1st  Cir. 1999), to support the proposition that the duty to screen does  not arise only at the moment a patient first comes to the emergency  room, but may arise later in the face of new information or changed  circumstances.  Appellants materially misread this court's holding  in Lopez-Soto.  The circumstances in Lopez-Soto involved a woman  who came to the hospital to deliver her baby and was admitted to  the maternity ward.  Problems developed during delivery and the  child was born in severe respiratory distress and later died after  being transferred to a different hospital.  Defendant in Lopez-Soto argued that the infant did not "[come] to the emergency room" and  that the hospital, therefore, was not under an obligation to  stabilize his emergency medical condition before transferring him  to another hospital.  In ruling against defendant, this court  determined that subsection (a) and subsection (b) of 42 U.S.C.  § 1395dd are to be read disjunctively.  See id. at 173.  That is,  the phrase "comes to the emergency room" relates only to the duty  to screen embodied in subsection (a).  Subsection (b), on the other  hand, provides that if any individual "comes to a hospital" and the  hospital determines that the individual has an emergency medical  condition, the hospital has a duty to stabilize that condition.  In Lopez-Soto the court concluded that the duty to stabilize before  transfer attaches "as long as an individual enters any part of the  hospital and the hospital determines that an emergency medical  condition exists."  Id. at 174 (citation omitted).  Because the  court clearly distinguished the requirements imposed by subsection  (a), which are triggered by a patient's coming to the emergency  department, from those imposed by subsections (b) and (c), which  are triggered by a patient's coming to the hospital, appellants'  reliance on Lopez-Soto is misplaced.


29
Appellants try a somewhat different, but related, tack in  arguing that the hospital room should be treated as the functional  equivalent of the emergency department for purposes of this case. Appellants acknowledge that the need to treat immediately the  traumatic injuries to Mr. Reynolds' lower extremities postponed  full screening for and treatment of DVT until after Mr. Reynolds'  traumatic injuries had been treated.  Appellants also note that  Mr. Reynolds may not have had DVT when he first arrived at  MaineGeneral, but may have developed DVT while at the hospital. They propose that because of these circumstances, the duty to  screen should be tolled, in effect, until after the traumatic  injuries had been treated and clotting was more likely to have  begun.  Appellants argue that it would be unreasonable for this  court to interpret 42 U.S.C. § 1395dd(a) in a way that requires  Mr. Reynolds to leave the hospital and reenter the emergency room  a second time in order to receive screening and treatment for  potential DVT.  Not only does the text of the statute fail to  support appellants' contention, but neither does the purpose of the  statute as manifested by Congress.


30
As numerous courts have noted, including this one,  "EMTALA is a limited 'anti-dumping' statute, not a federal  malpractice statute."  Bryan v. Rectors and Visitors of the Univ.  of Va., 95 F.3d 349, 351 (4th Cir. 1996) (citation omitted); seeCorrea, supra, 69 F.3d at 1192; Summers v. Baptist Med. Ctr.  Arkadelphia, 91 F.3d 1132, 1137 (8th Cir. 1996) ("So far as we can  tell, every court that has considered EMTALA has disclaimed any  notion that it creates a general federal cause of action for  medical malpractice in emergency rooms."); Urban v. King, 43 F.3d  523, 525 (10th Cir. 1994).  Congress enacted EMTALA in 1996, in the  face of "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.  EMTALA created a remedy for patients in  certain contexts in which a claim under state medical malpractice  law was not available.  Although the exact scope of the rights  guaranteed to patients by EMTALA is still not fully defined, it is  clear that at a minimum Congress manifested an intent that all  patients be treated fairly when they arrive in the emergency  department of a participating hospital and that all patients who  need some treatment will get a first response at minimum and will  not simply be turned away.  See Baber v. Hospital Corp. of America,  977 F.2d 872, 880 (4th Cir. 1992) ("The avowed purpose of EMTALA  was not to guarantee that all patients are properly diagnosed, or  even to ensure that they receive adequate care, but instead to  provide an 'adequate first response to a medical crisis' for all  patients and 'send a clear signal to the hospital community . . .  that all Americans, regardless of wealth or status, should know  that a hospital will provide what services it can when they are  truly in physical distress.'") (quoting 131 Cong. Rec. S13904  (Oct. 23, 1985) (statement of Sen. Durenberger)).  Appellants'  argument that because Mr. Reynolds was in a hospital room receiving  treatment for his injuries when the risk of DVT became manifest, it  would be unreasonable to deny him the protections of subsection (a)  is unpersuasive.  The fact that Mr. Reynolds was in the hospital  receiving treatment is a prima facie showing that the purpose of  subsection (a) was satisfied; any failures of diagnosis or  treatment were then remediable under state medical malpractice law.


31
Third.  Appellants argue that MaineGeneral screened  Mr. Reynolds differently than it did other patients exhibiting  similar symptoms.  Appellants contend that a complete medical  history, under MaineGeneral's hospital policy, includes questioning  patients concerning any family history of hypercoagulability.  They  aver that because Mr. Reynolds was not asked questions about his  family history of blood-clotting, he received disparate treatment.


32
Appellants proffered evidence that MaineGeneral's only  written policy regarding the taking of medical histories from  patients required that a "complete history" be taken from all  patients.  Appellants proffered expert testimony to support the  proposition that a "complete history" in Mr. Reynolds' context  necessarily included asking questions about any family history of  hypercoagulability.  Appellants aver that this expert testimony, in  conjunction with the absence of any more detailed hospital  policies, compels an inference that MaineGeneral gave disparate  treatment to Mr. Reynolds when it did not ask him questions  concerning his family history of hypercoagulability.


33
Appellants' argument attempts again to bring a  malpractice standard into the interpretation and application of a  statute designed to complement and not incorporate state  malpractice law.  To recover for disparate treatment, appellants  must proffer evidence sufficient to support a finding that  Mr. Reynolds received materially different screening than that  provided to others in his condition.  It is not enough to proffer  expert testimony as to what treatment should have been provided to  a patient in Mr. Reynolds' condition.  Appellants have not  proffered evidence sufficient to support a finding that  Mr. Reynolds received materially different screening than did other  patients in his condition.


34
Insofar as appellants are continuing to make a general  case for interpreting EMTALA as providing a federal-law remedy for  any inappropriate treatment in a hospital to which a patient in  need of emergency attention is brought, this attempt fails for the  reasons explained above.  In Correa, this court recognized  appropriate emergency screening as the EMTALA objective and  sketched out the contours of appropriate screening under EMTALA:


35
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. . . .  The essence of this requirement is  that there be some screening procedure, and that it be  administered even-handedly.


36
Correa, 69 F.3d at 1192 (emphasis added) (internal citations  omitted).  Because we conclude, based on the record before us, that  appellants failed to proffer evidence sufficient to support a  finding that Mr. Reynolds was "symptomatic" for DVT, within the  meaning of the statute, the hospital was not required under the  statute to screen for DVT.

B.  Stabilization Claim

37
In addition to their claim for failure to screen  Mr. Reynolds appropriately for DVT, appellants argue that a genuine  dispute of material fact exists as to whether MaineGeneral  stabilized Mr. Reynolds for DVT before releasing him.  Appellants  argue extensively about the nature of the stabilization  requirements under EMTALA in support of their contention that  Mr. Reynolds was not stabilized before release.  A critical flaw in  this claim of appellants under § 1395dd(b)(1), however, is that  appellants have failed to demonstrate that Mr. Reynolds had an  emergency medical condition at the time of his discharge from  MaineGeneral.


38
As a corollary to the right to be appropriately screened,  EMTALA guarantees patients the right, if an emergency medical  condition is determined to exist, to have that condition stabilized  before discharge or transfer to another hospital.  The statute  provides, in pertinent part:


39
If any individual . . . comes to a hospital and the  hospital determines that the individual has an emergency  medical condition, the hospital must provide either -


40
(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  medical facility in accordance with subsection (c).


41
42 U.S.C. § 1395dd(b)(1) (emphasis added).  This court need not  reach any questions about the nature of stabilization if we  determine that the predicates to stabilization have not been  satisfied.  Appellants proffered expert testimony that it was  likely that the clot that later became the pulmonary embolism that  caused Mr. Reynolds' death formed before Mr. Reynolds was  discharged from MaineGeneral.  Appellants' expert further testified  that a 17 to 30% likelihood existed that Mr. Reynolds had formed  blood clots at the time of his discharge.  Appellants' expert also  proffered testimony that some research indicates a 2% mortality  rate in cases of untreated DVT.  Evidence of one expert that it is  more likely than not in his opinion that the blood clot that  eventually caused Mr. Reynolds' death had formed by the time of his  discharge, combined with the evidence that 2% of untreated DVT  cases result in death, is not sufficient to support a determination  that Mr. Reynolds had an emergency medical condition at the time of  his discharge.  To invoke subsection (b), appellants must proffer  more than evidence of a possibility of the existence of a blood  clot at the time of Mr. Reynolds' discharge.  They must proffer  evidence sufficient to support a finding, reasoned from evidence,  that an emergency medical condition, within the meaning of the  statute, was already in existence at the time of Mr. Reynolds'  discharge.  Appellants have not proffered evidence sufficient to  support a finding that Mr. Reynolds had an emergency medical  condition at that time, and for this reason have failed to satisfy  a necessary predicate to the duty to stabilize.


42
Furthermore, as noted by Magistrate Judge Beaulieu,  appellants' case is centered on the asserted fact that MaineGeneral  did not take steps to determine whether Mr. Reynolds was at risk of  developing DVT.  It is doubtful that the text of the statute would  support liability under the stabilization provision for a patient  who had DVT, absent evidence sufficient to support a finding that  the hospital knew of his DVT.  See Marshall v. East Carroll Parish  Hosp. Serv. Dist., 134 F.3d 319, 325 (5th Cir. 1998); Summers, supra, 91 F.3d at 1140 (no duty to stabilize unless hospital "has  actual knowledge of the individual's unstabilized emergency medical  condition"); Vickers v. Nash Gen. Hosp., Inc., 78 F.3d 139, 145  (4th Cir. 1996) ("The Act does not hold hospitals accountable for  failing to stabilize conditions of which they are not aware, or  even conditions of which they should have been aware.").  It  appears quite likely that one important respect in which EMTALA's  requirements are narrower than those imposed by state law concerns  prophylactic care.  Subsection (b) requires stabilization of only  those conditions that a participating hospital has determined to be  emergencies.  It may be that in exceptional circumstances of proof  of an existing emergency need for immediate stabilization, a  hospital would have a duty of stabilization under EMTALA.  We need  not and do not reach that issue, however, since it is not presented  by the record before us in this case.

IV.  Conclusion

43
Because appellants' claims essentially are claims that  MaineGeneral misdiagnosed and negligently treated William Reynolds,  we believe the district court appropriately granted defendant's  motion for summary judgment on plaintiffs' EMTALA claims.  For the  reasons stated in this opinion, the judgment of the district court  is AFFIRMED.



Notes:


*
   Of the District of Massachusetts, sitting by designation.


