                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          JUL 12 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DARLA MICHELLE BLOOMER,

              Plaintiff-Appellant,

    v.                                                  No. 99-6074
                                                  (D.C. No. 98-CV-298-W)
    NORMAN REGIONAL HOSPITAL,                           (W.D. Okla.)

              Defendant-Appellee,

    and

    KEVIN W. HUBBARD, DO,
    Individually; RONALD L. HEIM, DO,
    Individually; ROBERT B. MCCLOY,
    MD, Individually; DARREL L.
    STOUT, MD, Individually; JERRY
    MCCALL, MD, Individually;
    WILLIAM G. WIGGS, MD,
    Individually; ERIC WOLLMAN, MD,
    Individually; H. JACKSON
    WOODWARD, MD, Individually;
    H. JACKSON WOODWARD, MD,
    INC.; ROBERT D. MCCLOY, JR.,
    MD, an Oklahoma Professional
    Corporation,

              Defendants.


                            ORDER AND JUDGMENT           *




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
                                                                       (continued...)
Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Plaintiff-appellant Darla Michelle Bloomer appeals the district court’s

dismissal, for lack of subject matter jurisdiction, of her claims against the Norman

Regional Hospital (Hospital) under the Emergency Medical Treatment and

Women in Active Labor Act (EMTALA), 42 U.S.C. § 1395dd, and the court’s

refusal to exercise supplemental jurisdiction over her state claims against the

remaining defendants. We hold that although plaintiff’s federal claims were not

legally immaterial, she failed to put forth facts supporting the exercise of federal

jurisdiction, requiring vacation of that portion of the district court’s order

dismissing her EMTALA claims and remanding for entry of summary judgment

in favor of the Hospital on the claims.




*
 (...continued)
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

                                          -2-
      Between March 1, 1996 and March 15, 1996, plaintiff sought treatment on

six occasions from either the Norman Regional Hospital or its affiliated clinic.

Plaintiff complained of neck and back pain, blurred vision, numbness, difficulty

hearing, and high blood pressure, and informed medical personnel that her

symptoms were increasing in severity. On each occasion, plaintiff was examined

and discharged. On March 15, plaintiff was hospitalized for six days. She has

been diagnosed with pseudotumor cerebri, and is now totally blind.

      Plaintiff brought this action against the Hospital, alleging it violated the

EMTALA, by:

      [failing to] provide an appropriate medical screening and/or
      examination; [failing to] provide stabilizing medical treatment;
      [failing to] properly refer [her] for her medical condition; [failing to]
      utilize the staff available to the [Hospital] to perform its duties under
      the EMTALA, and . . . discharg[ing] (which constitutes a ‘transfer’
      under the EMTALA) [her] while [she] was suffering under an
      unstablized (sic) emergency medical condition.

Appellant’s App. at 13-14. Plaintiff brought supplemental medical malpractice

claims against the Hospital and the treating health care providers.

      The Hospital moved to dismiss the complaint under Federal Rule of Civil

Procedure 12(b)(1), arguing the district court lacked jurisdiction over the

EMTALA claims. Attaching documentary evidence, the Hospital argued that

plaintiff failed to raise EMTALA claims because she did not show (1) that it

“dumped” her, by transferring her or refusing to treat her because she was


                                         -3-
indigent, or (2) that it knew of an unstabilized emergency medical condition when

it discharged her.    See Appellant’s App. at 30-31. The Hospital argued that the

attached evidence showed extensive efforts to treat plaintiff on several occasions,

and that such efforts negated a dumping claim. Instead, the Hospital argued,

plaintiff’s claims sounded in malpractice, which was not within the ambit of the

federal statute.

       Plaintiff’s response discussed whether the motion to dismiss could be

maintained under Rule 12(b)(1), objected to converting the motion to one under

Rule 12(b)(6), and discussed converting the motion to one for summary judgment

under Rule 56(c).     See Appellant’s App. at 57-58. Plaintiff also attached

documentary evidence to her response. The district court dismissed the action for

lack of subject matter jurisdiction under Rule 12(b)(1), holding that plaintiff’s

EMTALA claims were merely negligence claims, and that therefore they were

immaterial and were raised only to invoke federal jurisdiction. We review the

district court’s determination of its subject matter jurisdiction de novo.       See Holt

v. United States , 46 F.3d 1000, 1003 (10th Cir. 1995).

       When a complaint is drawn to rely directly upon a federal statute, so that

the question of the court’s jurisdiction is intertwined with the merits of the case,

the general rule is that a federal court possesses jurisdiction and should decide the

case on its merits.   See Bell v. Hood , 327 U.S. 678, 681-83 (1946);        Davoll v.


                                             -4-
Webb , 194 F.3d 1116, 1129 (10th Cir. 1999);     Holt , 46 F.3d at 1003. Under these

circumstances, the court should resolve its jurisdictional inquiry either “under

Federal Rule of Civil Procedure 12(b)(6) or, after proper conversion into a motion

for summary judgment, under Rule 56.”       United States ex. rel Hafter v. Spectrum

Emergency Care, Inc. , 190 F.3d 1156, 1159 (10th Cir. 1999). There are two

exceptions to this rule: (1) when the alleged federal claim is immaterial and is

made solely to obtain jurisdiction, or (2) when the claim is insubstantial and

frivolous. See Bell , 327 U.S. at 682-83; Davoll , 194 F.3d at 1129.

       Here, plaintiff drafted her complaint to seek recovery directly under the

provisions of a federal statute, the EMTALA. The district court refused to

convert defendant’s motion to dismiss to a merits-based motion, however, upon

finding that plaintiff’s EMTALA claims were immaterial. We conclude that her

EMTALA claims were not immaterial.

       Under the EMTALA, a hospital must provide to all individuals arriving in

the emergency room for examination and treatment “an appropriate medical

screening examination . . . to determine whether or not an emergency medical

condition . . . exists.” 42 U.S.C. §1395dd(a). A hospital is further prohibited

from transferring (or discharging) a patient before his/her emergency medical

condition is stabilized.   See id. , § 1395dd(c). Although we have held that this

statute was not enacted to provide a federal malpractice remedy,    see Repp v.


                                           -5-
Anadarko Mun. Hosp. , 43 F.3d 519, 522 (10th Cir. 1994), the EMTALA was

drafted broadly, and the issues of whether plaintiff was screened appropriately

and whether she was released before her condition was stabilized necessarily

overlap with malpractice issues. This overlap does not make plaintiff’s EMTALA

claims inconsequential or immaterial. The district court should not have

dismissed this case, therefore, under Rule 12(b)(1), but should have converted

defendant’s motion to dismiss to a merits-based motion under Rule 12(b)(6) or

Rule 56(c).

      Because defendants’ motion to dismiss did not simply attack the facial

validity of the complaint, but instead challenged the factual allegations supporting

the existence of subject matter jurisdiction, and because both parties submitted

affidavits and other evidentiary material, the motion should have been treated as

one for summary judgment under Rule 56(c).     See Spectrum Emergency Care,

Inc. , 190 F.3d at 1159-60; United States ex. Rel. Ramseyer v. Century Healthcare

Corp. , 90 F.3d 1514, 1518 (10th Cir. 1996). Plaintiff’s response to the motion

demonstrates she was aware that it should be converted to a Rule 56 motion for

summary judgment.    See Appellant’s App. at 58, 63-64. As plaintiff had notice of

the proper procedure and in fact attached documentary evidence to her response,

we exercise our plenary power to consider the Hospital’s motion as a motion for

summary judgment.    See Building & Constr. Dep’t v. Rockwell Int’l Corp.   , 7 F.3d


                                         -6-
1487, 1496 (10th Cir. 1993) (holding plaintiffs had notice of conversion when

they were first to point out need to convert motion, submitted evidentiary

materials, and did not object to defendant’s submission of materials).

      Although a conversion of the Hospital’s motion yields a merits-based

decision, we have held plaintiff’s burden of proof is “essentially the same–[she]

must present affidavits or other evidence sufficient to establish the court’s subject

matter jurisdiction by a preponderance of the evidence.”      Spectrum Emergency

Care, Inc. , 190 F.3d at 1160 n.5; see also Lujan v. Defenders of Wildlife   ,

504 U.S. 555, 561 (1992) (noting burden of proving jurisdictional facts remains

on the party invoking federal jurisdiction throughout the litigation, and that at the

summary judgment stage, the plaintiff cannot “rest on . . . mere allegations, but

must set forth by affidavit or other evidence specific facts, . . . which for purposes

of the summary judgment motion will be taken to be true”) (quotations omitted);

Cache Valley Elec. Co. v. State of Utah Dep’t of Transp.      , 149 F.3d 1119, 1124

(10th Cir. 1998) (holding “at summary judgment, it is a plaintiff’s burden to

adduce evidence sufficient to establish necessary jurisdictional facts” and, thus,

plaintiff “may not establish standing by merely hypothesizing”),     cert. denied ,

526 U.S. 1038 (1999).

      We have clearly defined the facts necessary to sustain an EMTALA claim

in our prior cases. In Repp , 43 F.3d at 522 & n.4, we held “a hospital violates


                                           -7-
section 1395dd(a) [only] when it does not follow its own standard [screening]

procedures,” and that “[a] court should ask only whether the hospital adhered to

its own procedures, not whether the procedures were adequate if followed.”

And in Urban ex rel. Urban v. King , 43 F.3d 523, 526 (10th Cir. 1994), we held

that to show a violation under 1395dd(c), a plaintiff must show that the Hospital

actually knew of the patient’s emergency medical condition.         These then are

jurisdictional facts which plaintiff bore the burden of proving.

       The operative inquiry is whether, viewing the tendered evidence and all

reasonable inferences in plaintiff’s favor, she has raised a genuine issue of fact

regarding these jurisdictional facts. The existence of a “scintilla of evidence”

in favor of the non-moving party is not enough to create a genuine issue of

material fact.   Anderson v. Liberty Lobby, Inc.    , 477 U.S. 242, 252 (1986).

       Plaintiff has not raised a genuine issue as to whether the Hospital failed

to follow its own screening procedures. She did not submit a Hospital policy

or suggested what procedures were omitted.         See, e.g. , Williams v. Birkeness ,

34 F.3d 695, 697 (8th Cir. 1994) (holding plaintiffs failed to raise a triable issue

whether patient was treated differently than others presenting the same symptoms,

which was an “essential element of a claim under § 1395dd(a),” and noting that

hospital did not bear the burden of showing a uniform screening procedure).




                                           -8-
      The fact that plaintiff received different treatment each time she sought

medical attention does not, in itself, create an inference that the Hospital diverged

from its ordinary screening procedures. A hospital would not be expected to

duplicate particular screening procedures, such as a CT scan, when a patient is

seen several times over a short period of time. What is appropriate screening on

the patient’s first visit may well be different by the fourth visit. In addition, we

note that plaintiff presented different complaints on her visits, focusing

sometimes on her back and neck, sometimes on her chest, and sometimes on

her head and vision.   See Appellant’s App. at 76 (3/1/96 - severe headache,

blurry vision, difficulty hearing, neck pain, blood pressure at 190/138), at 77

(3/7/96 - neck and back pain, swishing in ears, headache, difficulty sleeping,

blurry vision left eye), at 78, 80 (3/9/96 - severe headache, neck ache, mid and

upper back pain, complained her vision blurred “off and on when her blood

pressure goes up”, tenderness of spine and muscle tautness in left lumbar region),

at 82 (3/10/96 - dizziness, chest pain that increases upon inhalation), at 84

(3/11/96 - low back pain that is improving, decreased vision in left eye), at 85

(3/14/96 - back and neck pain that radiates to right knee, numbness in back and

left hand, blindness in left eye and decreased vision in right eye).

      Further, plaintiff did not submit any evidence demonstrating that the

Hospital had notice she was suffering from an emergency medical condition. It is


                                          -9-
not enough to claim the Hospital “should have known” of her condition, plaintiff

was required to raise a triable issue regarding the Hospital’s actual knowledge of

her unstabilized condition.   See Urban , 43 F.3d at 526.

       Because plaintiff failed to raise a triable issue regarding the existence of

jurisdictional facts under the EMTALA, the district court should have granted

summary judgment in favor of the Hospital. The district court’s decision to

decline supplemental jurisdiction need not be disturbed, however, as the court’s

reasoning is sound regardless of whether the EMTALA claims are dismissed

procedurally under Rule 12(b)(1) or on their merits under Rule 56.

       The judgment of the United States District Court for the Western District

of Oklahoma is VACATED, and the case is remanded for entry of summary

judgment in favor of the Hospital on plaintiff’s EMTALA claims.



                                                      Entered for the Court



                                                      Stephen H. Anderson
                                                      Circuit Judge




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