     Case: 19-50423       Document: 00515208067         Page: 1    Date Filed: 11/21/2019




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

                                                                                FILED
                                                                          November 21, 2019
                                    No. 19-50423
                                  Summary Calendar                           Lyle W. Cayce
                                                                                  Clerk

CONSUELO CERVANTES,

                                                  Plaintiff - Appellant

v.

EL PASO HEALTHCARE SYSTEM, also known as Del Sol Medical Center, a
Campus of Las Palmas Del Sol Healthcare,

                                                  Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:18-CV-111


Before KING, GRAVES, and WILLETT,* Circuit Judges. l
PER CURIAM:**
       Consuelo Cervantes appeals the district court’s grant of summary
judgment, arising out of a dispute from her visit to the emergency room at the
Del Sol Medical Center. Cervantes alleges that she was improperly discharged
from the hospital in violation of the Emergency Medical Treatment and Labor



       * Judge Willett concurs in the judgment.
       ** 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-50423
Act. For the following reasons, we AFFIRM the district court’s grant of
summary judgment.
                                     I.
     On April 9, 2016, Consuelo Cervantes visited the emergency room at Del
Sol Medical Center (“Del Sol”) because of abdominal pain. Dr. Shariq Khan
conducted a physical examination and laboratory tests and then ordered a CT
scan of her abdomen. Dr. Khan concluded that Cervantes had a recurrent
ventral hernia, and treated her with Valium, hydromorphone, and sodium
chloride. Hours later, Dr. Khan reevaluated Cervantes and found that her
condition had improved and that her pain had decreased. Dr. Khan determined
that Cervantes did not have an emergency medical condition and therefore
discharged Cervantes with prescriptions for tramadol and Zofran to treat pain
and nausea.
     The next day, Cervantes returned to Del Sol, again complaining of
abdominal pain. Dr. Khan reexamined Cervantes and concluded that she
needed surgery. Cervantes requested that Dr. Gomez, her previous surgeon,
perform the surgery. After Dr. Khan concluded that Cervantes’s medical
condition was stabilized, she went to another hospital to undergo surgery, as
Dr. Gomez could not perform the surgery at Del Sol.
     Cervantes later filed suit, asserting that Del Sol violated the Emergency
Medical Treatment and Labor Act (“EMTALA”). This statute requires
hospitals to conduct appropriate medical screening examinations to determine
that patients are not suffering from medical emergencies before they are
discharged. 42 U.S.C. § 1395dd. Cervantes alleged that she received an
inappropriate medical screening examination on April 9, and that she was
wrongfully discharged because she had an emergency medical condition. Del
Sol moved for summary judgment, asserting that Cervantes’s discharge was
permissible because she received an appropriate medical examination that led
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                                  No. 19-50423
to Dr. Khan’s conclusion that there was no medical emergency. The district
court granted summary judgment to Del Sol, and Cervantes timely appealed.
                                        II.
      We review a grant of summary judgment de novo. Guilbeau v. Hess
Corp., 854 F.3d 310, 311 (5th Cir. 2017). Summary judgment is proper “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). A
factual dispute “is material if its resolution could affect the outcome of the
action.” DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005) (citation
omitted).
      The party moving for summary judgment bears the initial burden of
“demonstrat[ing] the absence of a genuine issue of material fact.” Norman v.
Apache Corp., 19 F.3d 1017, 1023 (5th Cir. 1994) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). In reviewing a motion for summary
judgment, we construe “all facts and inferences in the light most favorable to
the nonmoving party.” McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012)
(citation omitted).
                                       III.
                                        A.
      Under the EMTALA, hospital emergency rooms “must provide for an
appropriate medical screening examination . . . to determine whether or not an
emergency medical condition . . . exists” before discharging a patient. 42 U.S.C.
§ 1395dd(a). An “appropriate medical screening examination” is judged by
“whether it was performed equitably in comparison to other patients with
similar symptoms” rather than “its proficiency in accurately diagnosing the
patient’s illness.” Marshall ex rel. Marshall v. E. Carroll Par. Hosp. Serv. Dist.,
134 F.3d 319, 322 (5th Cir. 1998). This is because the EMTALA “was not
intended to be used as a federal malpractice statute, but instead was enacted
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to prevent ‘patient dumping’, which is the practice of refusing to treat patients
who are unable to pay.” Id. Consequently, a hospital is not liable if it provides
an appropriate medical screening examination and determines that the patient
does not have an emergency medical condition. 2 Id. This is true “even if the
physician . . . made a misdiagnosis” that would constitute negligence or
medical malpractice. Id.
       The plaintiff bears the burden of proof in demonstrating “that the
Hospital treated her differently from other patients.” Id. at 323-24. Our
unpublished opinion in Fewins v. Granbury Hosp. Corp., 662 F. App’x 327 (5th
Cir. 2016), discusses three ways that plaintiffs may carry this burden:
        (1) the hospital failed to follow its own standard screening
       procedures; or (2) there were differences between the screening
       examination that the patient received and examinations that other
       patients with similar symptoms received at the same hospital; or
       (3) the hospital offered such a cursory screening that it amounted
       to no screening at all.
Id. at 331 (internal quotation marks omitted) (quoting Guzman v. Mem’l
Hermann Hosp. Sys., 409 F. App’x. 769, 773 (5th Cir. 2011)).
                                               B.
       Cervantes asserts that Del Sol violated the EMTALA by failing to
perform an appropriate medical screening examination. Specifically, she
argues that an appropriate medical exam must be “designed to arrive at a
reasonable clinical diagnosis.” In support of this claim, Cervantes urges the
court to read the “clear, plain text of the statute” rather than rely on Fifth
Circuit opinions that have “imported foreign definitional content into the
statute.” Under her interpretation of 42 U.S.C. § 1395dd(a), Del Sol violated


       2 If the examination creates “actual knowledge” of an emergency condition, the
hospital must attempt to stabilize the condition or appropriately transfer the patient to
another medical facility to avoid liability. Battle ex rel. Battle v. Mem’l Hosp. at Gulfport, 228
F.3d 544, 558-59 (5th Cir. 2000); see § 1395dd(b)(1).
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the EMTALA because Dr. Khan misdiagnosed her and therefore did not arrive
at a reasonable clinical diagnosis before she was discharged. In addition,
Cervantes argues that Dr. Khan should have obtained advice from the on-call
surgeon, consulted another physician, reviewed medical literature, and taken
other unspecified “affirmative steps” when diagnosing her.
      Nonetheless, “[i]t is a well-settled Fifth Circuit rule . . . that one panel of
our court may not overturn another panel’s decision, absent an intervening
change in the law.” Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378
(5th Cir. 2008). Moreover, Cervantes cites no authority in favor of her
interpretation   of   § 1395dd(a).   We       therefore   must    reject   Cervantes’s
interpretation and instead apply our own.
      Under our precedent, Cervantes fails to demonstrate how her medical
screening examination was inappropriate. She has not argued “that the
Hospital treated her differently from other patients.” Marshall, 134 F.3d at
323-24. Similarly, she has not described how Del Sol “failed to follow its own
standard screening procedures” or “offered such a cursory screening that it
amounted to no screening at all.” Fewins, 662 F. App’x at 331 (citation omitted).
      Instead, Cervantes’s argument amounts to a critique of Dr. Khan’s April
9 diagnosis. This argument falls short. The EMTALA is not a federal
malpractice statute. A physician’s misdiagnosis, even if it could constitute
negligence or medical malpractice, does not create an EMTALA claim.
Consequently, the district court correctly determined that Del Sol did not
violate the EMTALA.
                                        IV.
      For the foregoing reasons, we AFFIRM the district court’s dismissal of
Cervantes’s claims against Del Sol.




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