                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 09a0252p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                 X
 Representative of the Estate of MARIE MOSES -
 JOHNELLA RICHMOND MOSES, Personal
                                                  -
 IRONS, Deceased,                                 -
                            Plaintiff-Appellant, -
                                                                 No. 07-2111

                                                  ,
                                                   >
                                                  -
                                                  -
           v.
                                                  -
                                                  -
 PROVIDENCE HOSPITAL AND MEDICAL
 CENTERS, INC. and PAUL LESSEM,                   -
                        Defendants-Appellees, -
                                                  -
                                                  -
                                                  -
 CHRISTOPHER WALTER HOWARD,
                       Third-Party Defendant. N

                                      Filed: July 17, 2009
                                                                                           *
         Before: CLAY and GIBBONS, Circuit Judges; STAMP, District Judge.

                                      _________________

                                             ORDER
                                      _________________

        The court having received a petition for rehearing en banc, and the petition
having been circulated not only to the original panel members but also to all other active
judges of this court, and less than a majority of the judges having favored the suggestion,
the petition for rehearing has been referred to the original panel.

        The panel has further reviewed the petition for rehearing and concludes that the
issues raised in the petition were fully considered upon the original submission and
decision of the case. Accordingly, the petition is denied.




        *
           The Honorable Frederick P. Stamp, Jr., Senior United States District Judge for the Northern
District of West Virginia, sitting by designation.


                                                  1
No. 07-2111        Moses v. Providence Hospital and Medical Ctrs., et al.           Page 2


       GRIFFIN, Circuit Judge, dissenting. I respectfully dissent from the denial of the
petition for rehearing en banc. By remaining loyal to the errant obiter dictum contained
in Thornton v. Southwest Detroit Hosp., 895 F.2d 1131 (6th Cir. 1990), the majority has
perpetuated a serious conflict between our circuit and the Ninth Circuit, Bryant v.
Adventist Health Sys., 289 F.3d 1162 (9th Cir. 2002), the Fourth Circuit, Bryan v.
Rectors and Visitors of the Univ. of Va., 95 F.3d 349 (4th Cir. 1996), the federal
regulations, 42 C.F.R. § 489.24(d)(2)(i), and the vast majority of lower court decisions.
See generally Preston v. Meriter Hosp., Inc., 747 N.W.2d 173 (Wis. Ct. App. 2008),
petition for review denied, 749 N.W.2d 662 (Wis. 2008), and cases cited therein.

       At issue is the construction of the Emergency Medical Treatment and Active
Labor Act (“EMTALA”), 42 U.S.C. § 1395 dd. Contrary to the federal regulations and
the weight of authority, a panel of this court in Moses held that federal law imposes a
duty on hospitals that accept Medicare funding to adequately stabilize a patient after the
hospital has satisfied its emergency room obligations by either transferring the individual
or admitting him for in-patient care. Our panel decision misconstrues EMTALA,
making it a general federal medical malpractice statute, rather than an act limited to
emergency room screening and stabilization. Bryan, 95 F.3d at 351.

       For these reasons, I would grant rehearing en banc and therefore respectfully
dissent.

                                               ENTERED BY ORDER OF THE COURT

                                                     /s/ Leonard Green
                                               ___________________________________
                                                             Clerk
