     Case: 10-60867     Document: 00511532036         Page: 1     Date Filed: 07/07/2011




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

                                                                            FILED
                                                                            July 7, 2011
                                     No. 10-60867
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

RICKY BURAS,

                                                  Plaintiff-Appellant

v.

HIGHLAND COMMUNITY HOSPITAL,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:09-CV-711


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Ricky Buras filed a pro se complaint in the district
court, naming as defendant Highland Community Hospital (HCH), and
complaining that he was denied medical treatment on June 2, 2009, and again
on September 8, 2009, because of his inability to pay. The parties consented to
entry of judgment by the magistrate judge. Buras has appealed the magistrate
judge’s order and judgment granting HCH’s motion for summary 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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      We review a grant of summary judgment de novo. Freeman v. Texas Dep’t
of Crim. Justice, 369 F.3d 854, 859 (5th Cir. 2004). “[S]ummary judgment is
proper ‘if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a
matter of law.’” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citation
omitted); see also FED. R. CIV. P. 56. Once the moving party carries its burden
of showing that evidence in the record contains insufficient proof concerning an
essential element of the nonmoving party’s claim, the burden shifts to the
nonmoving party to present evidence showing that there is a genuine issue for
trial. Norwegian Bulk Transp. A/S v. International Marine, 520 F.3d 409, 412
(5th Cir. 2008).
      The magistrate judge correctly construed the complaint as asserting a
claim under the Emergency Medical Treatment and Active Labor Act, 42 U.S.C.
§ 1395dd (EMTALA). See Marshall es rel. Marshall v. East Carroll Parish Hosp.
Serv. Dist., 134 F.3d 319, 321 (5th Cir. 1998). EMTALA provides,
      In the case of a hospital that has a hospital emergency department,
      if any individual . . . comes to the emergency department and a
      request is made on the individual’s behalf for examination or
      treatment for a medical condition, the hospital must provide for an
      appropriate medical screening examination within the capability of
      the hospital’s emergency department, including ancillary services
      routinely available to the emergency department, to determine
      whether or not an emergency medical condition . . . exists.
§ 1395dd(a) (emphasis supplied). An “emergency medical condition” is defined
to mean:
      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—
            (i) placing the health of the individual . . . in serious jeopardy,
            (ii) serious impairment to bodily functions, or

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            (iii) serious dysfunction of any bodily organ or part . . . .
§ 1395dd(e)(1)(A). If the screening examination reveals that the individual is
suffering from an emergency medical condition, the individual must be provided
with stabilizing treatment; conditions are imposed on the transfer of the
individual to another medical facility. § 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).
      EMTALA was enacted to prevent “‘patient dumping,’ which is the practice
of refusing to treat patients who are unable to pay.” Marshall, 134 F.3d at 322.
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 medical screening
examination” is provided and the claimant’s condition is determined not to be an
emergency, 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
brought under state law. Id. An “appropriate medical screening examination”
is “a screening examination that the hospital would have offered to any other
patient in a similar condition with similar symptoms.” Id. at 323.
      To avoid summary judgment, Buras had to present evidence showing that
there was a genuine issue of material fact whether HCH had provided an
EMTALA-appropriate medical examination. See id. Buras also had to show that
HCH had actual knowledge that he was suffering from an emergency medical
condition. See Battle, 228 F.3d at 559.
      HCH presented summary judgment evidence that Buras received
appropriate medical screening examinations on both of his visits to the HCH
emergency department (ER). Buras failed to present any evidence rebutting
HCH’s evidence of this essential element of his EMTALA claim. See Marshall,

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134 F.3d at 324; see also Norwegian Bulk Transp., 520 F.3d at 412. Moreover,
HCH presented evidence that Buras did not have an emergency medical
condition on either of his visits to the HCH Emergency Department. The fact
that a physician at another hospital prescribed an antibiotic at the time of the
first visit is not sufficient to create a genuine issue whether Buras received an
inadequate medical screening and had an emergency medical condition on that
date. See Battle, 228 F.3d at 557-58; Marshall, 134 F.3d at 324-25.
      Buras contends in conclusional fashion that, by granting the motion for
summary judgment, the magistrate judge denied his constitutional right to trial
by jury and to confront adverse witnesses. This issue has not been briefed, it
is waived. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
      In asserting that he was treated disparately, Buras notes that he
presented the same symptoms on both of his visits to HCH, but that he received
a different treatment for his condition on the second visit. The question is not
whether the treatment was different, but whether the same adequate medical
screening examination was offered under similar circumstances. See Battle, 228
F.3d at 557-58; Marshall, 134 F.3d at 323-24.         As Buras’s condition was
determined to be non-emergent, differences in the treatment rendered are not
material to Buras’s EMTALA claim.           See Marshall, 134 F.3d at 324-25;
§ 1395dd(b).
      Buras also complains that summary judgment was granted before
discovery was completed. A party may move for summary judgment “at any time
until 30 days after the close of all discovery.” FED. R. CIV. P. 56(b). Buras does
not state what additional discovery was necessary or uncompleted. As there was
no reason to believe that further discovery would have produced evidence
creating a genuine issue of material fact, the magistrate judge did not abuse his
discretion by precluding further discovery before granting summary judgment.
See Resolution Trust Corp. v. Sharif-Munir-Davidson Dev. Corp., 992 F.2d 1398,
1401 (5th Cir. 1993). The judgment is

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   AFFIRMED.




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