                                                                 NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 18-1503
                                     _____________

                   STEPHEN GILMORE; KAREN GILMORE, H/W,
                                               Appellants

                                             v.

    NEIL R. HOLLAND, M.D.; RANDLE H. STORM, M.D.; GEISINGER MEDICAL
    CENTER; GEISINGER CLINIC D/B/A GEISINGER MEDICAL GROUP; JOHN
             DOES 1-10; JANE DOES 1-10; ABC CORPORATIONS 1-10,

                                     _____________


                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                  (No. 4-17-cv-01781)
                        District Judge: Honorable Yvette Kane

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a):
                                   October 29, 2018

           Before: CHAGARES, JORDAN, and VANASKIE, Circuit Judges.

                               (Filed: December 12, 2018)



                                      ____________

                                        OPINION*
                                      ____________


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
CHAGARES, Circuit Judge.

       Stephen and Karen Gilmore filed an eleven-count complaint against Geisinger

Medical Center (“GMC”), its related corporate entity, and Mr. Gilmore’s treating doctors

Neil R. Holland, M.D. and Randle H. Storm, M.D. at GMC (collectively, “defendants”),

seeking to recover for the extensive injuries — including paralysis — that Mr. Gilmore

suffered after a medical procedure. Only one count, brought under the Emergency

Medical Treatment and Active Labor Act (“EMTALA”), raises a federal claim. The

defendants moved to dismiss the claim pursuant to Fed. R. Civ. P. 12(b)(6) on the basis

that there is no plausible claim under EMTALA. The United States District Court for the

Middle District of Pennsylvania granted the motion, and the Gilmores appeal that

decision. For the reasons stated below, we will affirm.

                                              I.

       Reviewing the District Court’s dismissal, we accept as true the factual allegations

in the complaint. Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009). We

write solely for the parties and therefore recite only the facts necessary to our disposition.

       Mr. Gilmore had a scheduled, cardiac ablation procedure at GMC on October 7,

2015. Soon after that procedure, while he was still admitted as a patient, his medical

condition worsened. He complained of upper back pain, and his creatinine levels

increased. The following day, he was acutely hypertensive, and his legs felt weak and

heavy. By midday, his kidneys were failing. His back pain worsened, his creatinine

levels continued to rise, and he had been unable to urinate since the day prior.



                                              2
       By evening, Mr. Gilmore’s lower extremities were paralyzed. Spinal surgery was

conducted the following morning to relieve the spinal cord compression resulting from a

hemorrhage. On October 15, 2015, Mr. Gilmore was transferred to a rehabilitation

center. He has not returned home since. Mr. Gilmore is paralyzed, suffers from severe

neurological deficits, and requires extensive nursing home and rehabilitative care.

       The Gilmores allege ten tort-based causes of action and one federal cause of action

arising under EMTALA. The defendants moved to dismiss the complaint under Fed. R.

Civ. P. 12(b)(6), on grounds that the Gilmores did not state a plausible claim under

EMTALA, and without EMTALA, the court lacked subject matter jurisdiction. The

District Court granted the motion in its entirety. The Gilmores timely appealed.

                                             II.

       The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and we exercise plenary review over the District Court’s

dismissal for failure to state a claim. Delaware Nation v. Pennsylvania, 446 F.3d 410,

415 (3d Cir. 2006).

                                            III.

       EMTALA requires hospitals that receive federal funding to provide a “medical

screening examination” for people who “come[ ] to the emergency department”

regardless of insurance coverage or ability to pay. 42 U.S.C. § 1395dd(a). The statute

further provides:

              If any individual . . . comes to a hospital and the hospital determines that
              the individual has an emergency medical condition, the hospital must
              provide either — (A) . . . for such further medical examination and such

                                             3
              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).

Id. at § 1395dd(b)(1). Congress has expressly delegated authority to the Department of

Health and Human Services’ Centers for Medicare and Medicaid Services (“CMS”) to

construe Medicare-related statutes, like EMTALA, through rules and regulations. See id.

at § 1395hh; see also Torretti v. Main Line Hospitals, Inc., 580 F.3d 168, 174 (3d Cir.

2009) (“CMS has the congressional authority to promulgate rules and regulations

interpreting and implementing . . . EMTALA.”).

       CMS has promulgated a regulation providing that a hospital’s responsibilities

under EMTALA end when an individual who came to the hospital for an emergency is

then admitted “as an inpatient for further treatment.” 42 C.F.R. § 489.24(a)(1)(ii) (2013).

The regulation further provides that the stabilization requirement does not apply “to an

inpatient who was admitted for elective (nonemergency) diagnosis or treatment.” Id. at §

489.24(d)(2)(ii).

       We have held that this regulation is entitled to deference under Chevron USA, Inc.

v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984), because it is “consistent with

EMTALA, and is in accord with the Act’s intent.” Torretti, 580 F.3d at 177. The

purpose of EMTALA is “to curb the problem of patient dumping,” and therefore carving

out an exception for individuals who have already been admitted as patients does not

conflict with the Act’s goal. Id.

       The regulation and our decision to defer to it answer the issue in this case. The

Gilmores allege that GMC’s responsibilities under EMTALA were triggered on October

                                             4
8, 2015, when the emergency medical condition was identified. That is, even though Mr.

Gilmore had been admitted as an inpatient on October 7 for a nonemergency procedure,

once his condition became emergent on October 8, GMC was obligated under EMTALA

to stabilize him.1 But Mr. Gilmore did not “come[ ] to a hospital” with “an emergency

medical condition.” See 42 U.S.C. § 1395dd(b)(1). His condition became emergent the

following day, after he was already receiving care as an inpatient. Because hospitals are

not required under EMTALA and its accompanying regulation to stabilize inpatients, the

Gilmores cannot state a plausible claim for relief under EMTALA.

       We recognize that what Mr. Gilmore has suffered — like the harm alleged in most

cases brought under EMTALA — is “tragic.” Torretti, 580 F.3d at 170. But EMTALA

“is not a federal malpractice statute.” Id. If the defendants have acted negligently, he is

not without recourse. He retains the full arsenal of state law claims at his disposal, but he

must now pursue those claims in state court.

                                            IV.

       For the reasons stated above, we will affirm the Order of the District Court.




1
  The Gilmores acknowledge that the CMS regulation forecloses this argument, but they
contend the regulation “directly conflicts” with the statute. Gilmore Br. 12. This Court
in Torretti has held otherwise, and a panel of this Court is not permitted to overrule a
precedential opinion. 3d Cir. I.O.P. 9.1 (2015). Accordingly, Torretti binds this panel.

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