PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRANKLIN D. VICKERS, Executor of
the Estate of Martin Wade Vickers,
Plaintiff-Appellant,

v.
                                                                      No. 95-1391
NASH GENERAL HOSPITAL,
INCORPORATED; JAMES R.
HUGHES, M.D.,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(CA-94-396-5-BO)

Argued: November 2, 1995

Decided: March 13, 1996

Before WILKINSON, Chief Judge, and HALL
and ERVIN, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Hall joined. Judge Ervin wrote a dissenting
opinion.

_________________________________________________________________

COUNSEL

ARGUED: Pamela Suzanne Duffy, June K. Allison, WISHART,
NORRIS, HENNINGER & PITTMAN, P.A., Burlington, North Car-
olina, for Appellant. Kari Lynn Russwurm, CRANFILL, SUMNER &
HARTZOG, L.L.P., Raleigh, North Carolina, for Appellee Nash Gen-
eral; Michael W. Mitchell, SMITH, ANDERSON, BLOUNT, DOR-
SETT, MITCHELL & JERNIGAN, L.L.P., Raleigh, North Carolina,
for Appellee Hughes. ON BRIEF: William H. Elam, WISHART,
NORRIS, HENNINGER & PITTMAN, P.A., Charlotte, North Caro-
lina, for Appellant. Alene M. Mercer, CRANFILL, SUMNER &
HARTZOG, L.L.P., Raleigh, North Carolina, for Appellee Nash Gen-
eral; Samuel G. Thompson, SMITH, ANDERSON, BLOUNT, DOR-
SETT, MITCHELL & JERNIGAN, L.L.P., Raleigh, North Carolina,
for Appellee Hughes.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

This case requires us to assess the scope of the Emergency Medical
Treatment and Active Labor Act ("EMTALA"). 42 U.S.C. § 1395dd.
The appellant, Frank Vickers, executor of the estate of Martin Wade
Vickers, brought suit against Nash General Hospital and Dr. James R.
Hughes, M.D., under both state medical malpractice law and under
EMTALA. The district court dismissed the EMTALA claims, con-
cluding that they presented allegations more properly brought in state
court as malpractice actions.

We agree with the district court. Upholding appellant's EMTALA
claims would eviscerate any distinction between EMTALA actions
and state law actions for negligent treatment and misdiagnosis. Under
appellant's reasoning, every claim of misdiagnosis could be recast as
an EMTALA claim, contravening Congress' intention and this cir-
cuit's repeated admonition that EMTALA not be used as a surrogate
for traditional state claims of medical malpractice.

I.

Because the complaint was dismissed pursuant to Fed. R. Civ. P.
12(b)(6), we take the facts as alleged to be true. The events giving rise
to this litigation began on the night of June 19, 1992, when Martin

                     2
Wade Vickers was involved in an altercation. During the scuffle,
Vickers evidently fell and landed on his head, causing a laceration of
his scalp. He arrived at the emergency room of Nash General Hospital
at roughly 2:10 A.M. on June 20, 1992.

Vickers was examined in the emergency room by Dr. James R.
Hughes. After his examination, Dr. Hughes diagnosed Vickers as suf-
fering from a "laceration and contusions and multiple substance
abuse." Dr. Hughes repaired the laceration in Vickers' scalp with sta-
ple sutures. Dr. Hughes apparently also ordered that x-rays of Vick-
ers' cervical spine be taken. The x-rays revealed no spinal damage.
Vickers remained in the Hospital for approximately eleven hours. At
about 1:15 P.M. on June 20, 1992, he was discharged, with directions
to return in ten days for removal of the staple sutures. He was also
instructed to report to the mental health department in two days, on
June 22, 1992.

On the morning of June 24, 1992, four days after his discharge
from the Hospital, paramedics responded to an emergency call regard-
ing Vickers. When emergency personnel found him, he was not
breathing and lacked a discernible pulse. They then rushed Vickers to
the Hospital emergency room. Efforts to resuscitate Vickers failed,
however, and he was pronounced dead at 9:15 A.M. An autopsy iden-
tified the cause of death as cerebral herniation and epidural hematoma
produced by a fracture of the left parietal area of Vickers' skull.

Frank Vickers, executor of the decedent's estate, initiated several
causes of action against the Hospital and Dr. Hughes. He alleged that
Vickers received negligent treatment, because the laceration should
have prompted testing for intracranial injury which would have
revealed the skull fracture. He also alleged that the Hospital violated
EMTALA by failing both to provide an appropriate screening exami-
nation and to stabilize Vickers' condition. The district court dismissed
the EMTALA claims under Fed. R. Civ. P. 12(b)(6). While the Hospi-
tal's treatment of Vickers "may constitute negligence and malprac-
tice," the court determined, "it is not enough, standing alone, to
constitute a violation of EMTALA." The district court then also dis-
missed the supplemental state law negligence actions for lack of juris-
diction, expressly allowing for refiling of those claims in state court.
This appeal followed.

                    3
II.

Congress enacted EMTALA in 1986 "to address a growing concern
with preventing `patient dumping,' the practice of refusing to provide
emergency medical treatment to patients unable to pay, or transferring
them before emergency conditions were stabilized." Power v. Arling-
ton Hosp. Ass'n, 42 F.3d 851, 856 (4th Cir. 1994). The Act accord-
ingly imposes two principal obligations on hospitals. First, it requires
that when an individual seeks treatment at a hospital's emergency
room, "the hospital must provide for an appropriate medical screening
examination . . . to determine whether or not an emergency medical
condition" exists. 42 U.S.C. § 1395dd(a). Second, if the screening
examination reveals the presence of an emergency medical condition,
the hospital ordinarily must "stabilize the medical condition" before
transferring or discharging the patient. 42 U.S.C.§ 1395dd(b)(1).1

The Act thereby imposes a "limited duty on hospitals with emer-
gency rooms to provide emergency care to all individuals who come
there." Brooks v. Maryland General Hosp., Inc., 996 F.2d 708, 715
(4th Cir. 1993). The duty created by EMTALA is a"limited" one in
a very critical sense: "EMTALA is not a substitute for state law mal-
practice actions, and was not intended to guarantee proper diagnosis
or to provide a federal remedy for misdiagnosis or medical negli-
gence." Power, 42 F.3d at 856. We have frequently reaffirmed this
limit on the Act's scope. Id. at 869 (Ervin, C.J., concurring in part and
dissenting in part) ("Virtually every decision addressing EMTALA
has recognized that Congress did not intend for the Act to be a substi-
tute for a state medical malpractice action."); Brooks, 996 F.2d at 710
("The Act was not designed to provide a federal remedy for mis-
diagnosis or general malpractice."); Baber v. Hospital Corp., 977
F.2d 872, 880 (4th Cir. 1992) ("EMTALA is no substitute for state
law medical malpractice actions.").
_________________________________________________________________

1 In certain circumstances, EMTALA allows hospitals to transfer indi-
viduals to other facilities before stabilizing their condition (such as if the
benefits from treatment at the alternate facility outweigh the risks of
transfer). See 42 U.S.C. § 1395dd(c). None of these circumstances are at
issue in this case.

                     4
In general, "[q]uestions regarding whether a physician or other hos-
pital personnel failed properly to diagnose or treat a patient's condi-
tion are best resolved under existing and developing state negligence
and medical malpractice theories of recovery." Baber, 977 F.2d at
880. The other circuit courts are universally in accord on the need to
distinguish EMTALA claims from standard claims of negligence and
misdiagnosis -- EMTALA "is not intended to duplicate preexisting
legal protections, but rather to create a new cause of action, generally
unavailable under state tort law, for what amounts to failure to treat."
Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1041
(D.C. Cir. 1991); see Correa v. Hospital San Francisco, 69 F.3d
1184, 1192 (1st Cir. 1995) ("EMTALA does not create a cause of
action for federal malpractice."); Summers v. Baptist Medical Ctr.
Arkadelphia, 69 F.3d 902, 904 (8th Cir. 1995) ("EMTALA is not a
federal malpractice statute and it does not set a national emergency
health care standard; claims of misdiagnosis or inadequate treatment
are left to the state malpractice area."); Eberhardt v. City of Los
Angeles, 62 F.3d 1253, 1258 (9th Cir. 1995); Repp v. Andarko Mun.
Hosp., 43 F.3d 519, 522 (10th Cir. 1994) (EMTALA"`is neither a
malpractice nor a negligence statute.'") (citation omitted); Holcomb
v. Monahan, 30 F.3d 116, 117 (11th Cir. 1994) (EMTALA "is not
designed to redress a negligent diagnosis by the hospital; no federal
malpractice claims are created."). In evaluating appellant's claims
under EMTALA, then, we must bear in mind that the Act does not
provide a cause of action for routine charges of misdiagnosis or mal-
practice.

III.

Appellant contends that the Hospital failed both to provide an "ap-
propriate screening examination" to Vickers, 42 U.S.C. 1395dd(a),
and to "stabilize" Vicker's medical condition before discharging him,
42 U.S.C. 1395dd(b). An examination of both allegations reveals,
however, that they ultimately present conventional charges of mis-
diagnosis, and that their reasoning would obliterate any distinction
between claims of malpractice under state law and actions under
EMTALA. We thus agree with the district court that appellant's alle-
gations fail to make out a claim under the Act. 2
_________________________________________________________________
2 Although the district court ruled on a motion to dismiss for failure to
state a claim, Fed. R. Civ. P. 12(b)(6), some of its language was sugges-

                     5
A.

EMTALA's requirement that individuals seeking emergency care
receive an "appropriate screening examination" obligates hospitals to
"apply uniform screening procedures to all individuals coming to the
emergency room." Matter of Baby K, 16 F.3d 590, 595 (4th Cir.),
cert. denied, 115 S. Ct. 91 (1994); see Baber, 977 F.2d at 879. The
screening provision, "at the core," thus "aims at disparate treatment."
Brooks, 996 F.2d at 713. Appellant attempts to assert a violation of
this requirement by alleging that Vickers "received less screening,
both in quantity and quality, than required under the Act, and less
than those other patients presenting in this same medical condition
received."

On the surface, this allegation may seem to state a claim under
EMTALA's screening provision -- the charge that Vickers received
less treatment than "other patients presenting in this same medical
condition" invokes the language of disparate treatment, the linchpin
of an EMTALA claim. The argument runs essentially as follows:
Vickers arrived at the emergency room with a "severe" laceration of
his scalp; patients who suffer from such severe head injuries normally
undergo diagnostic testing for intracranial injury; because Vickers
received only staple sutures but not testing for intracranial injury, he
was treated disparately from other individuals presenting in the same
medical condition.

This line of argument, however, ignores the distinction between the
initial screening examination, the focus of EMTALA, and the correct-
ness of the treatment that follows from the screening. EMTALA
requires a screening examination "to determine whether or not an
emergency medical condition . . . exists." 42 U.S.C. 1395dd(a). Here,
Dr. Hughes did screen Vickers upon his arrival at the emergency
room. As a result of this screening, Dr. Hughes determined that Vick-
_________________________________________________________________

tive of a ruling on summary judgment. The court, though, expressly
acknowledged that it was ruling on a motion to dismiss. Although the
court's language may not have been tidy, this is not dispositive. Instead,
we must ask whether, after taking the facts in the complaint to be true,
appellant makes out a claim under EMTALA.

                    6
ers suffered from a "laceration and contusions and multiple substance
abuse." Pursuant to this diagnosis, Dr. Hughes treated the laceration
with staple sutures. Of course, had Dr. Hughes diagnosed Vickers as
suffering from more severe head injuries, he may well have ordered
diagnostic testing for intracranial injury. But the accuracy of the diag-
nosis is a question for state malpractice law, not EMTALA; the Act
"does not impose any duty on a hospital requiring that the screening
result in a correct diagnosis." Brooks, 996 F.2d at 711; Baber, 977
F.2d at 879. Instead, "questions related to . . . diagnosis remain the
exclusive province of local negligence and malpractice law."
Gatewood, 933 F.2d at 1039.

Appellant simply ignores this basic principle. Instead, he assumes
that Dr. Hughes should have diagnosed Vickers differently (and in
hindsight perhaps more accurately) as suffering the sort of severe
head injury that requires testing for intracranial damage. He then
asserts the obvious proposition that this diagnosis would have
prompted different treatment than Vickers in fact received. But if dis-
parate treatments based on disparate diagnoses sufficed to raise a
claim under EMTALA, every allegation of misdiagnosis could auto-
matically be recast as a claim under the Act: An improperly diag-
nosed patient can always assert that a properly diagnosed patient
would have received a different course of treatment. See Summers, 69
F.3d at 905 (Arnold, C.J., dissenting). Such an outcome would plainly
subvert Congress' intent that EMTALA remain distinct from state
malpractice law.

The flaw in this reasoning is its failure to take the actual diagnosis
as a given. EMTALA is implicated only when individuals who are
perceived to have the same medical condition receive disparate treat-
ment; it is not implicated whenever individuals who turn out in fact
to have had the same condition receive disparate treatment. See
Baber, 977 F.2d at 885. The Act would otherwise become indistin-
guishable from state malpractice law. As a result, when an exercise
in medical judgment produces a given diagnosis, the decision to pre-
scribe a treatment responding to the diagnosis cannot form the basis
of an EMTALA claim of inappropriate screening. See Power, 42 F.3d
at 858 ("Ignoring . . . variations in the exercise of medical judgment
would be inconsistent with the intent of the appropriate screening pro-
vision of EMTALA."). In fact, not only does treatment based on diag-

                     7
nostic medical judgment not violate the Act, it is precisely what
EMTALA hoped to achieve -- handling of patients according to an
assessment of their medical needs, without regard to extraneous con-
siderations such as their ability to pay. See Brooks, 996 F.2d at 711.

This circuit's opinion in Baber, 977 F.2d at 872, makes clear that
disparate treatment of individuals perceived to have the same condi-
tion is the cornerstone of an EMTALA claim, and that treatment deci-
sions based on medical judgment consequently fall outside the Act.
In the strikingly similar facts of that case, the patient suffered a lacer-
ation of her scalp, a physician examined the wound and elected to
treat it with sutures, and the patient ultimately died from a subdural
hematoma and a fracture of her skull. As here, the plaintiff alleged
that x-rays of the skull would have identified the fracture, and failure
to do so violated EMTALA's screening requirement.

This court rejected the plaintiff's argument, observing that "Ms.
Baber was initially screened and evaluated in [the hospital's] emer-
gency department." Id. at 881. In the doctor's "medical judgment," it
reasoned, the "head injury was not serious and did not indicate the
need at that time for a CT scan or x-rays." Id. The court acknowl-
edged that "Ms. Baber's condition may have been misdiagnosed orig-
inally," but determined that "there is no evidence demonstrating that
the hospitals or physicians failed to treat her." Id. at 885. Instead, the
doctor "treated Ms. Baber for what he perceived to be her medical
condition." Id. (emphasis added). This, the court found, was sufficient
to defeat the EMTALA claim of inappropriate screening.

The same analysis must apply in this case.3 Dr. Hughes treated
_________________________________________________________________
3 Baber upheld an award of summary judgment, whereas here we con-
sider an appeal from a dismissal under Fed. R. Civ. P. 12(b)(6). And in
Baber the plaintiff did not specifically allege disparate treatment in his
complaint, while here appellant did use the term"disparate treatment."
But mechanical invocation of the phrase "disparate treatment" does not
convert appellant's allegations of misdiagnosis into a valid claim under
EMTALA, when in substance the allegation is no different from the
claim in Baber. The District of Columbia Circuit, for example, did not
hesitate to affirm a dismissal under Fed. R. Civ. P. 12(b)(6) for failure
to state a claim under EMTALA when the allegation was one of mis-
diagnosis. Gatewood, 933 F.2d at 1037.

                     8
Vickers for what he "perceived to be" Vickers' medical condition. In
his medical judgment, like that of the physician in Baber, the lacera-
tion did not warrant testing for intracranial injury. Dr. Hughes instead
treated the laceration with sutures. He also ordered x-rays of Vickers'
cervical spine, and kept him in the Hospital for a period of eleven
hours before releasing him. In light of the substantial medical atten-
tion paid to Vickers, the circumstances are far afield from those that
concerned Congress in enacting EMTALA. And while the reason-
ableness of Dr. Hughes' medical conclusions may well be called into
question, this is the province of state malpractice law; negligence
claims under state law are in fact pending. In sum:

          Whether any of the defendants acted negligently is a ques-
          tion of medical malpractice which may be addressed in a
          state court action. It is enough for purposes of EMTALA
          that none of the evidence demonstrates an attempt . . . to
          `dump' [the patient]; instead hospital personnel treated
          [him] for what they perceived to be [his] medical condi-
          tion."

Id. Because appellant does not allege that Vickers received different
treatment than other patients perceived to have the same medical con-
dition, he fails to state a claim of inappropriate screening under
EMTALA.

B.

Appellant's charge that the Hospital failed to "stabilize" Vicker's
condition before discharging him fails for largely the same reasons.
EMTALA requires that when a hospital "determines that [an] individ-
ual has an emergency medical condition," the hospital must provide
for such further examination and treatment "as may be required to sta-
bilize the condition." 42 U.S.C. 1395dd(b)(1). On its face, this provi-
sion takes the actual diagnosis as a given, only obligating hospitals to
stabilize conditions that they actually detect. See Baber, 977 F.2d at
883; see also Eberhardt, 62 F.3d at 1259; Gatewood, 933 F.2d at
1041. Accordingly, Baber emphasized that a stabilization claim exists
when "the patient had an emergency condition" and "the hospital
actually knew of that condition." Baber, 977 F.2d at 883 (emphasis
added). The Act does not hold hospitals accountable for failing to sta-

                    9
bilize conditions of which they are not aware, or even conditions of
which they should have been aware. Id. EMTALA would otherwise
become coextensive with malpractice claims for negligent treatment.

Appellant's claim misconstrues the nature of the stabilization
requirement. It alleges that Vickers presented to the Hospital suffering
from an "emergency medical condition," that the Hospital "did not
take further steps to examine or treat [Vickers] or in any way attempt
to stabilize his emergency medical condition," and that the Hospital's
discharge violated EMTALA because Vickers' "emergency medical
condition had not been stabilized." This charge fails once again to
take the actual diagnosis as a given. Dr. Hughes diagnosed Vickers
as suffering from a laceration, and repaired the laceration with staple
sutures. The assertion that the Hospital did not"in any way attempt
to stabilize" Vickers' condition is thus in error, at least as regards the
condition of which the Hospital was actually aware.

Appellant's claim instead relates to the condition which, in hind-
sight, Vickers turned out to have -- a severe fracture of his skull
which caused a cerebral hematoma -- and alleges that the Hospital
failed to take adequate steps to stabilize that condition. "Analysis by
hindsight," however, "is not sufficient to impose liability under
EMTALA." Baber, 977 F.2d at 883. Instead, a hospital must actually
perceive the seriousness of the medical condition and nevertheless fail
to act to stabilize it. Appellant makes no such allegation in this case.

Here, Vickers received sutures for his laceration. He also received
x-rays of his cervical spine. He was kept in the Hospital for eleven
hours before discharge. Four days later, he died. In light of this
lamentable outcome, both the diagnosis and treatment may form the
basis of state malpractice claims. Failure to stabilize claims under
EMTALA are different, however, as "Congress deliberately left the
establishment of malpractice liability to state law, limiting
EMTALA's role to imposing on a hospital's emergency room the
duty . . . to stabilize any emergency condition discovered." Brooks,
996 F.2d at 711.

IV.

The facts as alleged in the complaint are that defendants diagnosed
a scalp laceration and treated it. Because appellant's claims are at bot-

                     10
tom ones of misdiagnosis, and because misdiagnosis must remain, as
Congress intended, a matter of state malpractice law, we affirm the
judgment of the district court.

AFFIRMED

ERVIN, Circuit Judge, dissenting:

I respectfully dissent.

The majority provides a thorough analysis of Congress's purpose
in enacting EMTALA, and although correct about the statute's goals,
the opinion wrongly faults Vickers for congressional imprecision. The
majority's real problem is not with what Vickers alleged, but with the
statutory language, which allows an EMTALA violation to be proven
even when the failure to screen or stabilize is not shown to have been
based on an economic motive. Although EMTALA was designed to
end patient dumping, Congress did not specify that EMTALA claims
must include proof of an economic motive. Regardless of what we
divine the congressional intent to have been, the statute is perfectly
clear about what a plaintiff must allege in order to state a claim.

The Federal Rules of Civil Procedure establish a notice-pleading
system. Complaints should be dismissed for failure to state a claim on
which relief can be granted only when, construing all allegations in
the light most favorable to the plaintiff, it is clear that no set of facts
could be proven under which the plaintiff would be entitled to relief.
Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). Vickers alleges
that Nash Hospital "did not provide Plaintiff Martin with an appropri-
ate medical screening examination" as required by EMTALA. Specif-
ically, the complaint alleges that Martin "received less screening, both
in quantity and quality, than required under the Act, and less than
those other patients presenting in this same medical condition
received." The complaint also alleges that the Hospital discharged
Martin "in violation of 42 U.S.C. 1395dd(b) as Plaintiff Martin's
emergency medical condition had not been stabilized . . . ." Vickers
has effectively put Nash General Hospital on notice that he is charg-
ing them with inadequate screening and failure to stabilize under
EMTALA. He has not provided specific facts in support of these alle-

                     11
gations and may very well ultimately fail in his attempt. But I believe
the district court erred in dismissing the claim under Rule 12(b)(6).

The majority--after recognizing that disparate treatment is the
"cornerstone" of an EMTALA claim--simply states that "mechanical
invocation of the phrase" cannot "convert appellant's allegations of
misdiagnosis into a valid claim under EMTALA." Supra n.3. But
many, if not most, of the allegations made in complaints written in the
notice-pleading fashion could be read as mechanical invocations of
the phrases and elements used to establish particular claims.

Comparing the present case to Baber is unavailing. As the majority
recognizes, that case was decided on summary judgment, and the
decision was premised on the plaintiff's failure to provide evidence
of disparate treatment. This is a very different standard than that used
to evaluate a motion to dismiss for failure to state a claim. The factual
similarity of the two cases thus means very little in the present posture
of this case.

Vickers has alleged enough to allow him to undertake discovery.
This particular plaintiff ought not to be penalized for Congress's fail-
ure to statutorily define how EMTALA differs from a medical mal-
practice claim under state law.

For these reasons, I would reverse the district court's dismissal
under Rule 12(b)(6) and remand for further proceedings.

                     12
