1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Edward Blum, et al., No. CV-20-00409-PHX-DLR
10 Plaintiffs, ORDER
11 v.
12 Banner Health, et al.,
13 Defendants. 14 15 16 Plaintiffs Edward and Nancy Blum have sued Defendants Banner Health d/b/a 17 Banner Boswell Medical Center and d/b/a Banner Del. E. Webb Medical Center 18 (collectively “Banner”) under the Emergency Medical Treatment and Active Labor Act 19 (“EMTALA”), 42 U.S.C. § 1395dd, alleging that Banner Del E. Webb Medical Center 20 (“Banner Del Webb”) failed to screen for or stabilize Mr. Blum’s emergency medical 21 condition before discharging him. (Doc. 1. at 9-12; Doc. 35; Doc. 43 at 2-3.) At issue is 22 Banner’s motion for summary judgment (Doc. 83), which is fully briefed (Docs. 84, 85) 23 and will be granted.1 24 I. Summary Judgment Standard 25 Summary judgment is appropriate when there is no genuine dispute as to any 26 material fact and, viewing those facts in a light most favorable to the nonmoving party, the 27 1 Banner’s request for oral argument is denied because the issues are adequately 28 briefed and oral argument will not help the Court resolve the summary judgment motion. See Fed. R. Civ. P. 78(b); LRCiv. 7.2(f). 1 movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is material 2 if it might affect the outcome of the case, and a dispute is genuine if a reasonable jury could 3 find for the nonmoving party based on the competing evidence. Anderson v. Liberty Lobby, 4 Inc., 477 U.S. 242, 248 (1986); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 5 (9th Cir. 2002). Summary judgment may also be entered “against a party who fails to make 6 a showing sufficient to establish the existence of an element essential to that party’s case, 7 and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 8 477 U.S. 317, 322 (1986). 9 The party seeking summary judgment “bears the initial responsibility of informing 10 the district court of the basis for its motion, and identifying those portions of [the record] 11 which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. 12 The burden then shifts to the non-movant to establish the existence of a genuine and 13 material factual dispute. Id. at 324. The non-movant “must do more than simply show that 14 there is some metaphysical doubt as to the material facts,” and instead “come forward with 15 specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. 16 v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal quotation and citation 17 omitted). 18 II. Undisputed Facts 19 Banner has satisfied the first element of the summary judgment test by showing that 20 there is no genuine dispute of material fact. Consistent with Federal Rule of Civil 21 Procedure 56(c) and Paragraph 7(c) of the Scheduling Order (Doc. 45 at 4), Banner details 22 all facts material to its defense in its motion, and it supported those factual assertions with 23 citations to evidence in the record. In their response brief, the Blums failed to controvert 24 any of Banner’s factual assertions with citations to evidence in the record. Accordingly, 25 pursuant to Rule 56(e)(2) and Paragraph 7(c) of the Scheduling Order, the Court deems 26 Banner’s recitation of material facts undisputed for purposes of this order. Those facts are 27 as follows: 28 1 Mr. Blum arrived at Banner Del Webb’s emergency department in the early morning 2 of July 24, 2018, complaining of an umbilical hernia leaking clear fluid. He began 3 receiving care roughly an hour later. (Doc. 83-3 at 3.) 4 Physician Assistant (“PA”) Christopher Jaco evaluated Mr. Blum. According to PA 5 Jaco’s notes, Mr. Blum reported his umbilical hernia began leaking ascites earlier the prior 6 evening. Mr. Blum exhibited no pain, redness, swelling, drainage, fever, nausea, vomiting, 7 fever, chills, chest pain, shortness of breath, or urinary problems. PA Jaco documented 8 Mr. Blum’s symptoms and medical, family, surgical, and social history. He also performed 9 and documented a physical examination of Mr. Blum. That examination revealed Mr. 10 Blum was alert and in no acute distress; his respiration was unremarkable; his abdomen 11 was soft, non-tender, and non-distended; his umbilical hernia sac had evidence of a small 12 lesion on the underside with ascites leaking through it; he exhibited no guarding, rebound 13 tenderness, or mass; he was negative for McBurney’s sign; his bowel sounds were normal; 14 his back was normal with normal range of motion; he was alert and oriented; he exhibited 15 no focal neurological deficits; his speech was normal; he was cooperative, had appropriate 16 mood and affect, and normal judgment. PA Jaco discussed the results of his examination 17 with Mr. Blum. A catheter was attached to Mr. Blum’s wound to help it drain. Mr. Blum 18 was offered paracentesis, but he declined to undergo the procedure at that time. Attending 19 physician Daniel Montgomery, MD supervised Mr. Blum’s care. Dr. Montgomery’s notes 20 confirm that Mr. Blum was seen and evaluated by him and PA Jaco, and that Dr. 21 Montgomery agreed with the history, assessment disposition, and plan. (Id. at 4-8.) 22 Though Mr. Blum was noted to have an abdominal wall wound, his condition was 23 stable, so he was discharged. Upon discharge, Mr. Blum was provided with educational 24 materials regarding his wound check; he was counseled regarding his diagnosis and 25 treatment plan and indicated an understanding of the instructions; he agreed to return to the 26 emergency department if his symptoms worsened; and his questions were answered. (Id. 27 at 7-10.) 28 1 Mr. Blum presented to Banner Boswell Medical Center later the same day. Records 2 from that visit again indicate a negative abdominal examination, with no signs or symptoms 3 of infection. The treating surgeon stated Mr. Blum would need to have his umbilical hernia 4 repaired to prevent an infection but did not believe an emergent surgery was necessary. 5 Instead, the repair procedure was scheduled for the following day. (Doc. 83-4 at 4-5.) 6 As part of its defense, Banner retained emergency medicine physician Carlo Rosen, 7 MD to offer expert opinions regarding the care provided to Mr. Blum. Dr. Rosen’s is the 8 only medical expert opinion in this case. Based on his review of the relevant medical 9 records, Dr. Rosen opined that (1) Banner Del Webb had an appropriate EMTALA policy 10 in place and complied with that policy in its treatment of Mr. Blum; (2) Dr. Montgomery 11 and PA Jaco performed an appropriate medical screening examination; (3) based on that 12 examination, it was reasonable to conclude that Mr. Blum did not have an emergency 13 medical condition; (4) even if Mr. Blum had an emergency medical condition, the treatment 14 provided to him was appropriate, and he was stable upon discharge; and (5) to a reasonable 15 degree of medical probability, Mr.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Edward Blum, et al., No. CV-20-00409-PHX-DLR
10 Plaintiffs, ORDER
11 v.
12 Banner Health, et al.,
13 Defendants. 14 15 16 Plaintiffs Edward and Nancy Blum have sued Defendants Banner Health d/b/a 17 Banner Boswell Medical Center and d/b/a Banner Del. E. Webb Medical Center 18 (collectively “Banner”) under the Emergency Medical Treatment and Active Labor Act 19 (“EMTALA”), 42 U.S.C. § 1395dd, alleging that Banner Del E. Webb Medical Center 20 (“Banner Del Webb”) failed to screen for or stabilize Mr. Blum’s emergency medical 21 condition before discharging him. (Doc. 1. at 9-12; Doc. 35; Doc. 43 at 2-3.) At issue is 22 Banner’s motion for summary judgment (Doc. 83), which is fully briefed (Docs. 84, 85) 23 and will be granted.1 24 I. Summary Judgment Standard 25 Summary judgment is appropriate when there is no genuine dispute as to any 26 material fact and, viewing those facts in a light most favorable to the nonmoving party, the 27 1 Banner’s request for oral argument is denied because the issues are adequately 28 briefed and oral argument will not help the Court resolve the summary judgment motion. See Fed. R. Civ. P. 78(b); LRCiv. 7.2(f). 1 movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is material 2 if it might affect the outcome of the case, and a dispute is genuine if a reasonable jury could 3 find for the nonmoving party based on the competing evidence. Anderson v. Liberty Lobby, 4 Inc., 477 U.S. 242, 248 (1986); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 5 (9th Cir. 2002). Summary judgment may also be entered “against a party who fails to make 6 a showing sufficient to establish the existence of an element essential to that party’s case, 7 and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 8 477 U.S. 317, 322 (1986). 9 The party seeking summary judgment “bears the initial responsibility of informing 10 the district court of the basis for its motion, and identifying those portions of [the record] 11 which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. 12 The burden then shifts to the non-movant to establish the existence of a genuine and 13 material factual dispute. Id. at 324. The non-movant “must do more than simply show that 14 there is some metaphysical doubt as to the material facts,” and instead “come forward with 15 specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. 16 v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal quotation and citation 17 omitted). 18 II. Undisputed Facts 19 Banner has satisfied the first element of the summary judgment test by showing that 20 there is no genuine dispute of material fact. Consistent with Federal Rule of Civil 21 Procedure 56(c) and Paragraph 7(c) of the Scheduling Order (Doc. 45 at 4), Banner details 22 all facts material to its defense in its motion, and it supported those factual assertions with 23 citations to evidence in the record. In their response brief, the Blums failed to controvert 24 any of Banner’s factual assertions with citations to evidence in the record. Accordingly, 25 pursuant to Rule 56(e)(2) and Paragraph 7(c) of the Scheduling Order, the Court deems 26 Banner’s recitation of material facts undisputed for purposes of this order. Those facts are 27 as follows: 28 1 Mr. Blum arrived at Banner Del Webb’s emergency department in the early morning 2 of July 24, 2018, complaining of an umbilical hernia leaking clear fluid. He began 3 receiving care roughly an hour later. (Doc. 83-3 at 3.) 4 Physician Assistant (“PA”) Christopher Jaco evaluated Mr. Blum. According to PA 5 Jaco’s notes, Mr. Blum reported his umbilical hernia began leaking ascites earlier the prior 6 evening. Mr. Blum exhibited no pain, redness, swelling, drainage, fever, nausea, vomiting, 7 fever, chills, chest pain, shortness of breath, or urinary problems. PA Jaco documented 8 Mr. Blum’s symptoms and medical, family, surgical, and social history. He also performed 9 and documented a physical examination of Mr. Blum. That examination revealed Mr. 10 Blum was alert and in no acute distress; his respiration was unremarkable; his abdomen 11 was soft, non-tender, and non-distended; his umbilical hernia sac had evidence of a small 12 lesion on the underside with ascites leaking through it; he exhibited no guarding, rebound 13 tenderness, or mass; he was negative for McBurney’s sign; his bowel sounds were normal; 14 his back was normal with normal range of motion; he was alert and oriented; he exhibited 15 no focal neurological deficits; his speech was normal; he was cooperative, had appropriate 16 mood and affect, and normal judgment. PA Jaco discussed the results of his examination 17 with Mr. Blum. A catheter was attached to Mr. Blum’s wound to help it drain. Mr. Blum 18 was offered paracentesis, but he declined to undergo the procedure at that time. Attending 19 physician Daniel Montgomery, MD supervised Mr. Blum’s care. Dr. Montgomery’s notes 20 confirm that Mr. Blum was seen and evaluated by him and PA Jaco, and that Dr. 21 Montgomery agreed with the history, assessment disposition, and plan. (Id. at 4-8.) 22 Though Mr. Blum was noted to have an abdominal wall wound, his condition was 23 stable, so he was discharged. Upon discharge, Mr. Blum was provided with educational 24 materials regarding his wound check; he was counseled regarding his diagnosis and 25 treatment plan and indicated an understanding of the instructions; he agreed to return to the 26 emergency department if his symptoms worsened; and his questions were answered. (Id. 27 at 7-10.) 28 1 Mr. Blum presented to Banner Boswell Medical Center later the same day. Records 2 from that visit again indicate a negative abdominal examination, with no signs or symptoms 3 of infection. The treating surgeon stated Mr. Blum would need to have his umbilical hernia 4 repaired to prevent an infection but did not believe an emergent surgery was necessary. 5 Instead, the repair procedure was scheduled for the following day. (Doc. 83-4 at 4-5.) 6 As part of its defense, Banner retained emergency medicine physician Carlo Rosen, 7 MD to offer expert opinions regarding the care provided to Mr. Blum. Dr. Rosen’s is the 8 only medical expert opinion in this case. Based on his review of the relevant medical 9 records, Dr. Rosen opined that (1) Banner Del Webb had an appropriate EMTALA policy 10 in place and complied with that policy in its treatment of Mr. Blum; (2) Dr. Montgomery 11 and PA Jaco performed an appropriate medical screening examination; (3) based on that 12 examination, it was reasonable to conclude that Mr. Blum did not have an emergency 13 medical condition; (4) even if Mr. Blum had an emergency medical condition, the treatment 14 provided to him was appropriate, and he was stable upon discharge; and (5) to a reasonable 15 degree of medical probability, Mr. Blum’s discharge did not cause any material 16 deterioration of his condition, cause or contribute to the need for any additional or different 17 treatment, or change his outcome. (Doc. 83-5.) 18 III. Analysis 19 Banner has satisfied the second element of the summary judgment test by showing 20 that, based on the undisputed facts, it is entitled to judgment as a matter of law. 21 Congress passed the EMTALA to address concerns “that hospitals were ‘dumping’ 22 patients who were unable to pay, by either refusing to provide emergency medical 23 treatment or transferring patients before their conditions stabilized.” Eberhardt v. City of 24 Los Angeles, 62 F.3d 1253, 1255 (9th Cir. 1995). The EMTALA addresses these concerns 25 by “plac[ing] obligations of screening and stabilization upon hospitals and emergency 26 rooms that receive patients suffering from an ‘emergency medical condition.’” Roberts v. 27 Galen of Virginia, Inc., 525 U.S. 249, 250 (1999). In particular, hospital emergency rooms 28 have a duty to (1) screen patients for emergency medical conditions and, if one is found, 1 (2) stabilize patients or transfer them to a higher level of care. Id. at 250-51; 42 U.S.C. § 2 1395dd(a), (b)(1), (c)(1). 3 The statute defines “emergency medical condition” as “a medical condition 4 manifesting itself by acute symptoms of sufficient severity (including severe pain) such 5 that the absence of immediate medical attention could reasonably be expected to result in 6 . . . placing the health of the individual . . . in serious jeopardy, . . . serious impairment to 7 bodily functions, or . . . serious dysfunction of any bodily organ or part[.]” § 1395dd(e)(1). 8 The statute further defines “to stabilize” to mean “to provide such medical treatment of the 9 condition as may be necessary to assure, within reasonable medical probability, that no 10 material deterioration of the condition is likely to result from or occur during the transfer 11 of the individual from a facility,” and “stabilized” to mean “that no material deterioration 12 of the condition is likely, within reasonable medical probability, to result from or occur 13 during the transfer of the individual from a facility[.]” Id. at (e)(3). In the event a patient 14 has an emergency medical condition, the EMTALA requires only stabilizing treatment; it 15 does not require the hospital to completely alleviate the emergency condition. See Brooker 16 v. Desert Hosp. Corp., 947 F.2d 412, 415 (9th Cir. 1991). 17 Banner complied with its EMTALA obligations here. The undisputed evidence 18 shows that Banner provided Mr. Blum with an appropriate medical screening, that his 19 leaking umbilical hernia did not constitute an emergency medical condition, but that even 20 if it did, Banner provided appropriate stabilizing treatment and discharged Mr. Blum in 21 stable condition. Although the Blums argue otherwise, they proffer no evidence to support 22 their claim that Banner failed to appropriately screen and stabilize Mr. Blum before his 23 discharge from the emergency department. For this reason, summary judgment is 24 warranted. 25 Before concluding, the Court finds it necessary to address one other issue. The 26 EMTALA authorizes “[a]ny individual who suffers personal harm as a direct result of a 27 participating hospital’s violation of a requirement of this section” to bring a civil action 28 against the participating hospital. § 1395dd(c). There are two plaintiffs in this lawsuit— 1 spouses Edward and Nancy Blum—but it is not clear to this Court how Mrs. Blum has 2 standing to bring an EMTALA claim. Nowhere is it alleged that Mrs. Blum received 3 inadequate (or any) emergency room care or suffered any injuries of her own, and the mere 4 fact that Mrs. Blum is married to Mr. Blum does not confer on her a right to bring an 5 EMTALA claim based on Mr. Blum’s care and alleged injuries, at least while Mr. Blum is 6 living and capable of vindicating his own rights. See Pauly v. Stanford Hosp., No. 10-CV- 7 5582-JF (PSG), 2011 WL 1793387, at *5 (N.D. Cal. May 11, 2011) (“Extending a private 8 right of action to a third party when the individual patient is still living would result in a 9 significant expansion of liability for hospitals subject to EMTALA’s provisions.”). And 10 to the extent Mrs. Blum has been joined as a plaintiff solely to bind the marital community, 11 her joinder is not necessary; “as a party that initiated this case—rather than a party 12 defending against an action to enforce a debt or obligation on the community—[Mr. Blum] 13 has the power to bind the entire community[.]” Waesche v. Embry-Riddle Aeronautical 14 Univ. Inc., No. CV-21-08020-PCT-DLR, 2021 WL 1862824, at *1 (D. Ariz. May 10, 15 2021). Because Mr. Blum is living and actively pursuing his own rights under EMTALA, 16 and because Mrs. Blum does not allege any EMTALA injury personal to her, the Court 17 finds that Mrs. Blum does not have standing to participate as a plaintiff in this case. 18 IV. Conclusion 19 Banner has presented sufficient evidence that it appropriately screened Mr. Blum 20 and stabilized him before discharge. The Blums chose not to offer any evidence 21 contradicting Banner’s contention that it complied with its EMTALA obligations. And 22 Mrs. Blum does not have standing to bring an EMTALA claim based on her husband’s 23 treatment, at least while he is living and capable of vindicating his own rights. For these 24 reasons, 25 / / / 26 / / / 27 / / / 28 1 IT IS ORDERED that Banner’s motion for summary judgment (Doc. 83) is || GRANTED and the Blums’ Motion to Proceed to Trial (Doc. 95) is DENIED as moot. || The Clerk of the Court is directed to enter judgment accordingly and terminate this case. 4 Dated this 14th day of September, 2022. 5 6 ‘boy tha 9 Upied States Dictria Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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