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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2 SAMANTHA MIKESKA,

 3          Plaintiff-Appellant,

 4 v.                                                                            NO. 32,020

 5 LAS CRUCES MEDICAL CENTER, LLC,
 6 d/b/a MOUNTAIN VIEW REGIONAL
 7 MEDICAL CENTER,

 8          Defendant-Appellee.


 9 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
10 Douglas R. Driggers, District Judge


11 The Pickett Law Firm
12 Mark L. Pickett
13 Las Cruces, NM

14 John Grost
15 El Paso, TX

16 for Appellant

17   Madison & Mroz, P.A.
18   Ada B. Priest
19   Kendrick W. Dane
20   Albuquerque, NM
 1 for Appellee


 2                             MEMORANDUM OPINION

 3 KENNEDY, Judge.

 4        Plaintiff Samantha Mikeska appeals from the district court’s summary judgment

 5 ruling in favor of Defendant Las Cruces Medical Center, LLC (the Hospital) that

 6 resulted in the dismissal of her claim against the Hospital for a violation of the federal

 7 Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd (2003)

 8 (EMTALA), [RP Vol.3/712] as well as the dismissal of Plaintiff’s remaining claims

 9 against the Hospital as per the parties’ stipulation. [RP Vol.3/715, 718] Our notice

10 proposed to dismiss. Mikeska filed a memorandum in opposition. We are not

11 persuaded by her arguments and, therefore, dismiss for lack of a final order.

12        As we recognized in our notice, the dismissal of all of Mikeska’s claims against

13 the Hospital would normally present a final order for purposes of appeal, even though

14 underlying claims, which include medical malpractice and negligence, remain against

15 defendants, Drs. Lemke and Turner (the doctors). [RP Vol.1/28] See Rule 1-

16 054(B)(2) NMRA (“When multiple parties are involved, judgment may be entered

17 adjudicating all issues as to one or more, but fewer than all parties. Such judgment

18 shall be a final one unless the court, in its discretion, expressly provides otherwise and

19 a provision to that effect is contained in the judgment.”). However, in the present

                                               2
 1 case, for reasons discussed below, we conclude that the district court abused its

 2 discretion by not expressly ruling that the order of dismissal stemming from the

 3 summary judgment ruling is not a final order for purposes of appeal. See id.

 4 (providing for finality unless the district court in its discretion expressly provides

 5 otherwise).

 6        Under EMTALA, a hospital has two primary obligations: (1) to adequately

 7 screen the patient for an emergency medical condition, and (2) if such condition is

 8 found, to stabilize the condition before discharging or transferring the patient. Grassie

 9 v. Roswell Hosp. Corp., 2011-NMCA-024, ¶ 59, 150 N.M. 283, 258 P.3d 1075.

10 Relevant to the screening function, the ultimate inquiry is not whether the hospital

11 accurately diagnosed the patient’s illness, but whether the screening “was performed

12 equitably in comparison to other patients with similar symptoms.” Godwin v. Mem’l

13 Med. Ctr., 2001-NMCA-033, ¶ 48, 130 N.M. 434, 25 P.3d 273 (internal quotation

14 marks and citation omitted). However, and significantly, at the summary judgment

15 phase of an EMTALA claim, case law provides that the plaintiff is not required to

16 actually show that he or she was treated differently than other patients having the

17 same or similar conditions, as a patient will rarely know how preceding patients were

18 treated in the emergency room. Id. ¶ 58. Rather, to survive summary judgment

19 proceedings, a plaintiff must show that the hospital did not follow its standard



                                               3
 1 screening procedures to diagnose a medical emergency. Id. ¶¶ 58-59. And relevant

 2 to this showing, Godwin provides that there is overlap between an EMTALA claim

 3 and a medical malpractice/negligence claim. Id. ¶ 64 (recognizing that “[a] failure to

 4 examine or test pursuant to a standard screening procedure might support a medical

 5 malpractice claim under State law and at the same time also constitute evidence of

 6 differential treatment sufficient to support a claim for failure to give an appropriate

 7 medical screening” under [EMTALA]) (internal quotation marks and citation

 8 omitted).

 9        In the present case, the parties disputed the adequacy of the Hospital’s

10 screening during the summary judgment proceedings [RP Vol.2/360, 463; Vol.3/483,

11 668, 687, 712] and, to this end, we note that Plaintiff presented the deposition

12 testimony of doctors who questioned the completeness of the screening examination,

13 especially with regard to how the CT scans were administered. [RP Vol.3/490, 491,

14 544, 568-69; DS 3] Under a Godwin analysis, at the summary judgment phase of the

15 proceedings, this deposition testimony reflects a factual dispute as to whether the

16 Hospital’s screening in following through in addressing Mikeska’s pain was adequate.

17 Id. ¶ 61 (stating that “[t]he evidence that [the doctor] did not seek a neurological

18 consultation through an on-call internist did raise a genuine issue of material fact as

19 to appropriate medical screening and alone is sufficient to save [the plaintiff] from



                                              4
 1 summary judgment”). Because Godwin recognizes that “[t]he spheres of medical

 2 malpractice and failure to provide an appropriate medical screening may overlap[,]”

 3 id. ¶ 66, it would be premature for this Court to consider the merits of Mikeska’s

 4 appeal given the remaining medical malpractice and negligence claims against the

 5 doctors. [RP Vol.1/28]

 6         We recognize that ultimately the inquiry under EMTALA for the Hospital’s

 7 screening obligation is whether Mikeska received disparate treatment. But, as

 8 discussed above, at the summary judgment phase of proceedings, a showing of

 9 disparate treatment is not required, such that she was required only to show that there

10 was a factual dispute for whether the screening was adequate. Because the proof for

11 this showing implicates also the standard of care at issue for Mikeska’s remaining

12 medical malpractice and negligence claims against the doctors, it would be premature

13 for us to consider the merits of this appeal, as its resolution appears to be intertwined

14 with factual determinations that remain at issue below. For this reason, we conclude

15 that the district court abused its discretion in failing to expressly provide that the order

16 of dismissal lacks finality for purposes of appeal. We accordingly dismiss for lack of

17 a final order. See generally Khalsa v. Levinson, 1998-NMCA-110, ¶¶ 20-21, 125

18 N.M. 680, 964 P.2d 844 (holding that the district court abused its discretion by

19 certifying an order for immediate appeal when the issues resolved by the order were



                                                5
 1 intertwined with issues not yet resolved by the district court); Nichols v. Texico

 2 Conference Ass’n of Seventh Day Adventists, 78 N.M. 310, 311, 430 P.2d 881, 882

 3 (Ct. App. 1967) (stating that “if the determination of the issues relating to [one

 4 defendant] will or may affect the determination of the issues relating to [another

 5 defendant], the judgment in favor of [the first] is not appealable”).

 6        We lastly acknowledge Mikeska’s view that, apart from the Hospital’s

 7 screening obligation, her motion for summary judgment should have been granted

 8 based on her continued assertion that the Hospital failed to satisfy its EMTALA

 9 obligation to stabilize her condition before discharging her. [MIO 5-6] Because we

10 dismiss for lack of finality, however, we decline to determinatively address the

11 underlying merits of this case, including whether the Hospital failed to satisfy its

12 obligation to stabilize Mikeska before her discharge. We do note, however, that

13 because the order at issue is non-final and addresses matters that are intertwined with

14 determinations that have not yet been resolved in Mikeska’s suit against the doctors,

15 it may be subject to revision by the district court prior to entry of a final order as

16 additional facts are developed.




                                              6
1        Based on the foregoing discussion and that set forth in our notice, we dismiss

2 for lack of a final order.

3        IT IS SO ORDERED.



4                                              _______________________________
5                                              RODERICK T. KENNEDY, Judge


6 WE CONCUR:



7 _________________________________
8 MICHAEL D. BUSTAMANTE, Judge



 9 _________________________________
10 J. MILES HANISEE, Judge
