                  United States Court of Appeals,

                          Fifth Circuit.

                           No. 93-5123.

 Roger Dale MILLER, Individually and o/b/o Nick Miller, et al.,
Plaintiffs-Appellants,

                                v.

   MEDICAL CENTER OF SOUTHWEST LOUISIANA, et al., Defendants-
Appellees.

                          June 14, 1994.

Appeal from the United States District Court for the Western
District of Louisiana.

Before JOHNSON, BARKSDALE, and DeMOSS, Circuit Judges.

     JOHNSON, Circuit Judge:

     Roger Dale Miller and Andrea Miller (Plaintiffs), individually

and on behalf of their minor son Nick, brought this action against

Hamilton Medical Center, Inc., d/b/a Medical Center of Southwest

Louisiana (Hamilton), alleging that Hamilton had refused to treat

Nick after an automobile accident in violation of the Emergency

Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. §

1395dd.1   The district court, however, found that Nick had never

"come to" Hamilton within the meaning of the statute. Accordingly,

the district court granted Hamilton's Fed.R.Civ.P. 12(b)(6) motion

to dismiss for failure to state a claim on which relief could be

granted.   Plaintiff appeals and we affirm.

                   FACTS AND PROCEDURAL HISTORY


     1
      § 1395dd was enacted as a part of COBRA—the Consolidated
Omnibus Budget Reconciliation Act of 1986. Pub.L. No. 99-272, §
9121, 100 Stat. 82, 164-67 (1986).

                                 1
     On March 29, 1992, nine-year-old Nick Miller suffered serious

injuries in an automobile accident when his leg became pinned in

between two colliding cars.          A passerby rushed Nick to nearby

Acadia-St. Landry Hospital (Acadia)2 in Church Point, Louisiana.

Once there, Dr. Williams, the general practitioner on duty at

Acadia, determined that Nick needed the care of an orthopedist and

a surgical facility for debridement of the wound.                Unable to

provide   such   treatment,   Dr.    Williams   called   Dr.   Olivier,   an

orthopedist at Hamilton some thirty minutes away in Lafayette.

     Plaintiffs contend that Dr. Olivier agreed to treat Nick and

preparations were made to transport Nick to Hamilton.             However,

before Nick left Acadia, Plaintiffs allege that an administrator

from Hamilton called back and, after determining that Nick had no

insurance, instructed Dr. Williams not to send Nick to Hamilton.

     Following this, Dr. Williams called several other hospitals

seeking to find a facility that could treat Nick.              Eventually,

Charity Hospital in New Orleans agreed to treat Nick and he was

flown there by helicopter.           Once at Charity, Nick's leg was

immediately surgically debrided. The delay caused by this sequence

of events was approximately seven hours and Plaintiffs allege that,

on account of this delay, Nick's injuries materially worsened.

     On March 22, 1993, Plaintiffs filed suit against Hamilton

alleging that Hamilton's refusal to treat Nick was in violation of

EMTALA, 42 U.S.C. § 1395dd.         Hamilton responded with a motion to


     2
      This facility is a small, country clinic where only two
family doctors practice.

                                      2
dismiss pursuant to Fed.R.Civ.P. 12(b)(6) arguing that Plaintiffs

failed to state a claim on which relief could be granted because

they did not allege that Nick "came to" the emergency department at

Hamilton.        Further, Hamilton argued that it was a transferee

hospital and, as such, it could only be liable under EMTALA if it

had agreed to a transfer which it had not.              The district court

granted    the    motion   to   dismiss,   apparently   because   the   court

believed that under the facts alleged, Nick never "came to" the

emergency department at Hamilton within the meaning of the statute.

Plaintiffs now appeal.

1. STANDARD OF REVIEW

         In review of a dismissal under Fed.R.Civ.P. 12(b)(6) for

failure to state a claim on which relief could be granted, we must

accept all well-pleaded facts as true and view them in a light most

favorable to the non-movant.          McCartney v. First City Bank, 970

F.2d 45, 47 (5th Cir.1992).        "We will not go outside the pleadings

and we cannot uphold the dismissal "unless it appears beyond doubt

that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief.' "              Rankin v. Wichita

Falls, 762 F.2d 444, 446 (5th Cir.1985) (quoting Conley v. Gibson,

355 U.S. 41, 44-45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

2. EMTALA

         The sole issue before this Court is whether the plaintiffs

have stated a claim under EMTALA, 42 U.S.C. § 1395dd.3                  This

     3
      In pertinent part, this statute provides as follows:

            (a) Medical screening requirement

                                       3
statute is also known as the "anti-dumping" statute and it was

passed in 1986 in response to a growing concern that hospitals were

dumping patients who could not pay by either turning them away from

their emergency rooms or transferring them before their emergency

conditions were stabilized.         Brooks v. Maryland Gen. Hosp., Inc.,

996 F.2d 708, 710 (4th Cir.1993).              Accordingly, this statute

mandates   that   a     hospital4   must   conduct   appropriate   screening


           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 (within the meaning of
           subsection (e)(1) of this section) exists.

           (b) Necessary stabilizing treatment for emergency
                medical conditions and labor

                  (1) In general

                  If any individual (whether or not eligible for
                  benefits under this subchapter) comes to a
                  hospital and the hospital determines that the
                  individual has an emergency medical condition, the
                  hospital must provide either—

                  (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)
                  of this section.

     42 U.S.C. § 1395dd.
     4
      The hospitals covered by this statute are hospitals with
emergency room departments that execute Medicare provider
agreements with the federal government pursuant to 42 U.S.C. §

                                       4
examinations for any individual who presents to its emergency

department.      Further, if an emergency condition is found to exist,

the hospital must either provide sufficient treatment to stabilize

the    patient    or   transfer    the   patient    in   accordance    with   the

strictures of the statute. Green v. Touro Infirmary, 992 F.2d 537,

539 (5th Cir.1993);       42 U.S.C. § 1395dd.

           Under the terms of the statute, however, these duties are

only       triggered   when   an   individual      "comes   to   the   emergency

department and a request is made on the individual's behalf for

examination or treatment...." 42 U.S.C. § 1395dd (emphasis added).

These two preconditions are conjunctive requiring both that an

individual 1) comes to the emergency department and 2) that a

request be made.       In the instant case, it is the first requirement

that is problematic.

           It is undisputed that Nick Miller never physically came to

the emergency department at Hamilton.               There was only a request

over a telephone.         Nevertheless, the Plaintiffs argue that we

should not construe this statute to require physical presence at

the emergency room.       Instead, the Plaintiffs contend that Congress

intended that the statute would extend the hospital's duty to any

individual in need of emergency care who requests treatment at the

hospital's emergency department.5            In essence, the Plaintiffs are


1395cc. Burditt v. U.S. Dept. of Health and Human Services, 934
F.2d 1362, 1366 (5th Cir.1991). It is undisputed that Hamilton
has entered into a Medicare provider agreement.
       5
      In support of this argument, the Plaintiffs cite two cases
in which a patient came to a hospital, but did not enter the
emergency department. Thornton v. Southwest Detroit Hospital,

                                         5
asking this Court to excise the "comes to" clause out of the

statute by construing it so as to make it redundant with the

"request is made" clause.

     We reject this argument for two reasons. First, the language

of the statute unambiguously describes the individuals covered by

section 1395dd as those who come to the emergency department.

Brooker v. Desert Hospital Corp., 947 F.2d 412, 414 (9th Cir.1991);

42 U.S.C. § 1395dd.   Except in rare and exceptional circumstances,

when " "we find the terms ... unambiguous, judicial inquiry is

complete....' "   Pavelic & LeFlore v. Marvel Entertainment Group,

493 U.S. 120, 123, 110 S.Ct. 456, 458, 107 L.Ed.2d 438 (1989)

(quoting Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698,

701, 66 L.Ed.2d 633 (1981).     No such exceptional circumstances



895 F.2d 1131 (6th Cir.1990); McIntyre v. Schick, 795 F.Supp.
777 (E.D.Va.1992). Even though § 1395dd(a) states that a patient
must come to the "emergency department," these courts took a
broader view of the statutory language and still found EMTALA
liability. Thornton, 895 F.2d at 1135; McIntyre, 795 F.Supp. at
781. The basis for this holding was the belief that the
"anti-dumping statute is not based upon the door of the hospital
through which a patient enters, but rather upon the notion of
proper medical care for those persons suffering medical
emergencies, whenever such emergencies occur at a participating
hospital." McIntyre, 795 F.Supp. at 781.

          As these courts did not require physical presence at
     the emergency department, the Plaintiffs herein argue that
     we should not require physical presence at Hamilton's
     emergency department. We do not face the issue that those
     courts faced and we make no comment on the soundness of
     those decisions. However, we do note that while the
     plaintiffs in Thornton and McIntyre did not enter the
     emergency department, they did reach the hospital and the
     emergencies did occur at a participating hospital. This is
     very different from someone who never came within thirty
     miles of the building and, in fact, never even began the
     journey there.

                                 6
exist in this case.6

         Second, such an interpretation would render the "comes to"

clause a nullity.    This would be contrary to "the elementary canon

of construction that a statute should be interpreted so as not to

render one part inoperative...."       Mountain States Tel. & Tel. Co.

v. Pueblo of Santa Ana, 472 U.S. 237, 249, 105 S.Ct. 2587, 2594, 86

L.Ed.2d 168 (1985) (quoting Colautti v. Franklin, 439 U.S. 379,

392, 99 S.Ct. 675, 684, 58 L.Ed.2d 596 (1979));       In re Dyke, 943

F.2d 1435, 1443 (5th Cir.1991).    Accordingly, we hold Congress to

its words when it said that an individual must "come to" the

     6
      In rare cases where application of the literal terms of the
statute will produce a result that is "demonstrably at odds with
the intentions of its drafters," those intentions must be
controlling. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564,
571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982). Such a
situation is not present in this case.

          The legislative history of EMTALA is replete with
     general statements about the munificent purpose of its
     drafters to prevent hospitals with emergency departments
     from dumping patients who have no insurance. See H.R.Rep.
     No. 241, 99th Cong., 1st Sess. pt. 1, at 27 (1985) U.S.Code
     Cong. & Admin.News pp. 42, 605; Gatewood v. Washington
     Healthcare Corp., 933 F.2d 1037, 1039 (D.C.Cir.1991).
     However, there is nothing in the legislative history that
     specifically deals with whether, in order to trigger the
     hospital's duty under EMTALA, an individual must be
     physically present at the emergency department.

          The statute, as written and as we construe it, does
     serve the drafters' purpose of ensuring that hospitals do
     not turn away anyone who shows up at the their emergency
     room doorstep in an emergency condition. The Plaintiffs,
     however, would have us extend the hospital's duty to require
     it to accept for emergency treatment any individual who can
     communicate a request to the emergency department. We see
     nothing demonstrably at odds with the purpose of the
     drafters, though, in limiting that duty, in accordance with
     the unambiguous terms of the statute, to those individuals
     who come to the emergency department as opposed to any
     individual who can get to a telephone.

                                   7
emergency department to trigger a hospital's duty under EMTALA.

     Moreover, we find support for our conclusion in the case law

construing the statute.   While this precise issue has seldom been

in controversy, most courts have implicitly recognized that the

individual must come to the emergency room.7     Additionally, in

devising judicial tests for violation of this statute, courts have

most often listed as the first element that the individual come to

the emergency department.8

     7
      See e.g. Green, 992 F.2d at 537 ("individuals who enter
their emergency rooms requesting care"); Baber v. Hospital
Corporation of America, 977 F.2d 872, 884 (4th Cir.1992);
Collins v. DePaul Hospital, 963 F.2d 303, 305 (10th Cir.1992)
("if "any individual' comes, or is brought, to such emergency
department and requests"); Burditt, 934 F.2d at 1366 (Hospitals
"must treat all human beings who enter their emergency
departments in accordance with [EMTALA]"); Cleland v. Bronson
Health Care Group, Inc., 917 F.2d 266, 269 (6th Cir.1990) ("The
benefits and rights of the statutes extend "to any individual'
who arrives at the hospital"); Deberry v. Sherman Hospital
Ass'n, 741 F.Supp. 1302, 1305 (N.D.Ill.1990) ("Once it is
established that the plaintiff showed up at the hospital's
emergency room"); Owens v. Nacogdoches County Hospital Dist.,
741 F.Supp. 1269, 1273 (E.D.Tex.1990) ("an emergency room must
provide a medical screening examination to any patient who
appears complaining of an emergency medical condition").
     8
      The usual formulation of the test for a violation of EMTALA
labels the elements as follows:

          1) the individual went to the defendant's emergency
               room

          2) with an emergency medical condition, and the
               defendant hospital either

          3) did not adequately screen him to determine whether
               he had an emergency medical condition, or

          4) discharged him before the emergency condition was
               stabilized.

     Ruiz v. Kepler, 832 F.Supp. 1444, 1447 (D.N.M.1993);
     Huckaby v. East Ala. Medical Ctr., 830 F.Supp. 1399, 1402

                                 8
      Finally, this was the conclusion of the only case to have

dealt with this issue directly.             Johnson v. University of Chicago

Hosp.,   982   F.2d   230,    233    (7th    Cir.1992).        In   Johnson,   the

University of Chicago Hospitals (UCH) was operating a telemetry

system to direct paramedics transporting emergency patients to the

appropriate hospital in the system.             During this time, paramedics

were dispatched on an emergency call to aid a one-month-old infant

who   had   stopped   breathing.        On    arriving    at    the   scene,   the

paramedics     contacted     the    telemetry    operator      from   UCH.     The

paramedics informed the nurse that they were only five blocks from

UCH, but the nurse instructed the paramedics to transport the

infant to a more distant hospital.            Id. at 231.

      The baby died sometime after arriving at the other hospital

and the mother of the child brought suit against UCH for, inter

alia, a violation of EMTALA.          Id.    The Seventh Circuit upheld the

dismissal of this claim, however, because of its conclusion that,

under the plain meaning of the statute, the infant never came to

UCH or its emergency department.             Id. at 233.       In explaining its

decision, the court stated that the baby "simply never "came to'

UCH for medical assistance, and thus never crossed the threshold of

[EMTALA] liability."       Id. at 233 n. 7.

      As did the court in Johnson, we find that, from the facts

alleged in the complaint, Nick Miller never "came to" the emergency

department at Hamilton as required by EMTALA.                  Accordingly, the


      (M.D.Ala.1993); Deberry, 741 F.Supp. at 1305. See also,
      Stevison v. Enid Health Systems, Inc., 920 F.2d 710, 712
      (10th Cir.1990) (setting forth a slightly different test).

                                        9
Plaintiffs have failed to state a claim on which relief could be

granted and the district court correctly granted Hamilton's motion

to dismiss under Fed.R.Civ.P. 12(b)(6).9

                           CONCLUSION

     For the foregoing reasons, the district court's dismissal

pursuant to Fed.R.Civ.P. 12(b)(6) is AFFIRMED.




     9
      As we decide this case on the failure to allege that Nick
Miller "came to" the emergency department at Hamilton, we do not
address Hamilton's argument that it had no liability as a
transferee hospital.

                               10
