                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 99-2988
                                  ___________

Benjamin Root and Amy Root,             *
Individually and as Co-Next Friends     *
of Elizabeth Root, and Elizabeth        *
Root, A Minor,                          *
                                        *
            Appellees,                  *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
                                        *
New Liberty Hospital District,          *
d/b/a Liberty Hospital,                 *
                                        *
            Appellant.                  *
                                        *
                                        *
      ____________________              *
                                        *
Missouri Hospital Association,          *
                                        *
            Amicus Curiae               *
            on Behalf of Appellant.     *

                                 ___________

                            Submitted: February 17, 2000

                                 Filed: April 6, 2000
                                  ___________
Before WOLLMAN, Chief Judge, and BOWMAN and MORRIS SHEPPARD
      ARNOLD, Circuit Judges.
                              ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

      Benjamin, Amy, and Elizabeth Root claimed that Liberty Hospital violated the
Emergency Medical Treatment and Active Labor Act (EMTALA), see 42 U.S.C.
§ 1395dd, when it discharged Amy Root, then pregnant with Elizabeth, without
properly performing the medical screening and stabilization that the statute requires.
See 42 U.S.C. § 1395dd(a), § 1395dd(b), § 1395dd(c). The Roots sued the hospital,
asking for "those damages available for personal injury under the law of the State in
which the hospital is located." See 42 U.S.C. § 1395dd(d)(2)(A).

       Under current Missouri law, the state's political subdivisions, such as hospital
districts, see Mo. Ann. Stat.§ 206.010.2, are immune to suits for negligence and
intentional torts. See Aiello v. St. Louis Community College District, 830 S.W.2d 556,
558 (Mo. Ct. App. 1992). Liberty Hospital, a public entity for which the New Liberty
Hospital District was established, therefore moved to dismiss the Roots' complaint on
the ground of sovereign immunity, see Mo. Ann. Stat. § 537.600. The district court
denied the motion. The hospital appealed, and the appeal is properly before us under
the so-called collateral order doctrine. See generally Fond du Lac Band of Chippewa
Indians v. Carlson, 68 F.3d 253, 255 n.2 (8th Cir. 1995). We affirm the district court.1

                                           I.
       Liberty Hospital offers two substantive arguments with respect to the interaction
between the Missouri sovereign immunity statute and the federal EMTALA. The Roots
assert, however, that we need not consider either of those arguments because the


      1
        The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.

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Missouri statute "by its very terms" applies in cases outside the scope of the EMTALA.



        The Roots maintain that because the Missouri sovereign immunity statute applies
only to tort liability, see Mo. Ann. Stat. § 537.600.1, and the EMTALA establishes a
strict-liability regime, the Missouri statute somehow "provides no shield for [the
hospital] from an EMTALA action." We recognize that, as the Roots argue, we have
characterized the EMTALA as providing for strict liability "[i]n [a] sense," Summers
v. Baptist Medical Center Arkadelphia, 91 F.3d 1132, 1137 (8th Cir. 1996) (en banc).
We are, however, unable to see how this can possibly be helpful to the Roots' case,
because there are only three categories of civil liability, namely, tort, contract, and
quasi-contract, and a case in which the plaintiff relies on principles of strict liability
necessarily sounds in tort. See generally World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 297 n.11 (1980). While we have discovered no Missouri case on the
question, other jurisdictions have readily decided that the general principle extending
immunity to suit for torts applies to suits based on a strict-liability theory. See, e.g.,
City of Treasure Island v. Provident Management Corp., 730 So. 2d 357, 359, 361
(Fla. Dist. Ct. App. 1999). We see no reason to doubt that Missouri courts would do
the same thing, and we therefore find the Roots' argument unpersuasive.

                                          II.
        The hospital asserts that the EMTALA explicitly incorporates Missouri's
sovereign immunity statute because the federal statute provides that a plaintiff may
obtain "those damages available for personal injury under the law of the State in which
the hospital is located," see 42 U.S.C. § 1395dd(d)(2)(A). The hospital therefore
maintains that the federal statute prevents the Roots from suing because Missouri's
sovereign immunity statute is part of Missouri law and is thus incorporated into the
federal statute. We disagree with this reasoning.




                                           -3-
       Courts are obligated to refrain from embellishing statutes by inserting language
that Congress has opted to omit. See generally Keene Corp. v. United States, 508 U.S.
200, 208 (1993). Although the EMTALA adopts state standards to determine what
damages are available in civil enforcement actions, we do not believe that it
incorporates state law that is unrelated to damages.

       The hospital justifies its reading of the statute by pointing out that a party
prevented from suing is also necessarily prevented from receiving damages. This
argument turns the matter upside down, however, because it fails to recognize that
sovereign immunity precludes liability altogether, and not merely the availability of
damages after liability is established. We therefore believe that Missouri's sovereign
immunity statute is not incorporated into the federal statute. Cf. Power v. Arlington
Hospital Association, 42 F.3d 851, 862 (4th Cir. 1994), holding that the EMTALA
adopts state-imposed damages caps; but see Hardy v. New York City Health and
Hospitals Corp., 164 F.3d 789, 794 (2nd Cir. 1999), giving the EMTALA's civil
enforcement provision a "broader" reading and holding that a state notice-of-claim
requirement, which "is a 'condition precedent' to suing for damages in a personal injury
action," is "part of the applicable 'law of the State.' "

                                             III.
       The federal statute also states that the "provisions of this section do not preempt
any State or local law requirement, except to the extent that the requirement directly
conflicts with a requirement of this section," see 42 U.S.C. § 1395dd(f). The hospital
argues in the alternative that the EMTALA does not preempt the Missouri sovereign
immunity statute. We believe, however, that Missouri's sovereign immunity statute
cannot fairly be described as a "State or local law requirement" (emphasis added). The
Missouri sovereign immunity statute does not require, command, or instruct anyone to
do anything: Instead, it informs potential plaintiffs that they may not sue public entities
unless sovereign immunity is expressly waived. See Mo. Ann. Stat. § 537.600.1. To
accept Liberty Hospital's argument that the state statute requires "the courts to grant

                                            -4-
political subdivisions immunity from personal injury lawsuits" (subject to certain
exceptions not relevant in this case) would, we think, require us to give the state statute
a distorted and unnatural construction.

      Federal law preempts state law when the state law conflicts with the federal law.
See Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995); see also National Bank
of Commerce v. Dow Chemical Co., 165 F.3d 602, 607 (8th Cir. 1999). Missouri's
sovereign immunity statute is in direct conflict with 42 U.S.C. § 1395dd(d)(2)(A). The
supremacy clause, see U.S. Const. art. VI, cl. 2, therefore dictates that Missouri's
sovereign immunity statute must yield. See generally State of Missouri v. City of
Glasgow, 152 F.3d 802, 805 (8th Cir. 1998).

                                         IV.
      For the foregoing reasons, we affirm the judgment of the district court.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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