Brady v. Weeks Med. Ctr.

Darren Brady v. Weeks Medical Center and John Ford, M.D.

Case No. 19-cv-00655-SM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

November 12, 2019

REPORT AND RECOMMENDATION

Before the court is pro se plaintiff Darren Brady's Complaint (Doc. No. 1), raising claims under 42 U.S.C. § 1983; the Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd; Title VI of the Civil Rights Act, 42 U.S.C. § 2000d; the Stark Act, 42 U.S.C. § 1395nn; the "Human Rights Act of 1998"; New Hampshire's "Law against Discrimination," N.H. Rev. Stat. Ann. ("RSA") ch. 354-A; and state tort law. The Complaint is before this magistrate judge for preliminary review, pursuant to 28 U.S.C. § 1915(e)(2) and LR 4.3(d)(2).

Background

Plaintiff alleges that on June 2, 2018, defendant Dr. John Ford, identified as an ER doctor,¹ and defendant Weeks Medical Center ("WMC") refused to treat him in the WMC emergency room for "sciatica nerve problems" and called the police to removehim from the hospital. Plaintiff asserts that his daughter took a video of him lying on the ground in pain. A police officer can be heard in that video, plaintiff asserts, telling him to get up and stop faking. Plaintiff alleges further that a friend drove him to another hospital's emergency room, where he was diagnosed and treated for his sciatica pain. Defendants billed him, according to plaintiff, for treatment he did not receive.

Plaintiff seeks $150,000 for his "illegal detention by the police for almost an hour, [and] pain and suffering," and for the hospital's refusal to help him while still charging him. He also seeks reimbursement for court fees.

The attachments to the Complaint indicate plaintiff filed claims in state court arising from the same incident against the same defendants. The Superior Court dismissed that action because plaintiff failed to serve the defendants. See Brady v. Weeks Medical Center, No. 214-2018-CV-00094 (N.H. Super. Ct., Coos Cnty., Feb. 21, 2019) (Doc. No. 1-1 at 5). An exhibit attached to the Complaint here is a copy of a notice of appeal, dated May 1, 2019, which appears to have been prepared for filing in the New Hampshire Supreme Court ("NHSC"). See Doc. No. 1-1, at 1, 2. This court's inquiry into the docket in Brady v. Weeks Medical Center, No. 2018-0692 (N.H.), indicates plaintiff filed his last pleading in that case on March 4, 2019, and the NHSC took no action on the pleading because it was notfiled in a timely manner. The NHSC has closed that case.

Preliminary Review Standard

The court reviews complaints filed by plaintiffs who are proceeding in forma pauperis to determine, among other things, whether the plaintiff has asserted any claim upon which relief might be granted. See 28 U.S.C. § 1915(e)(2), LR 4.3(d)(2). In determining whether a pro se pleading states a claim, the court construes the pleading liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted). Disregarding any legal conclusions, the court considers whether the factual content in the pleading and inferences reasonably drawn therefrom, taken as true, state a claim to relief. Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013) (citations omitted). The court may dismiss an action on preliminary review based on an affirmative defense, if the facts alleged in the complaint, or matters susceptible of judicial notice, conclusively establish the elements of the affirmative defense. See Gray v. Evercore Restructuring LLC, 544 F.3d 320, 324 (1st Cir. 2008).

Claims

Plaintiff claims that the defendants violated his federal rights, giving rise to liability under 42 U.S.C. § 1983; EMTALA; Title VI of the Civil Rights Act of 1964; and the Stark Act, by:

• Refusing him medical treatment in the ER;

• Calling the police to have him removed from the ER; and

• Billing him for treatment the defendants did not provide.

Plaintiff also claims the defendants violated his rights under the "Human Rights Act of 1998" and state law, by:

• Allowing him to sign in and admitting him to the ER, but then refusing him medical treatment;

• Calling the police to have him removed from the ER;

• Billing him for treatment the defendants did not provide; and

• Breaching their duty of care.

Discussion

I. 42 U.S.C. § 1983

The Civil Rights Act, 42 U.S.C. § 1983, "provides a cause of action for state deprivations of federal rights," Nieves v. Bartlett, No. 17-1174, 2019 U.S. LEXIS 3556, at *10, 2019 WL 2257157, at *4 (U.S. May 28, 2019). "To state a claim under that statute, a plaintiff must assert two allegations: (1) that some person deprived her of a federal right, and (2) that such person acted under color of state or territorial law."Grapentine v. Pawtucket Credit Union, 755 F.3d 29, 31 (1st Cir. 2014) (citations and internal quotations omitted). "Significantly, § 1983 does not apply to merely private conduct, no matter how discriminatory or wrongful." Id.

Plaintiff does not allege any facts demonstrating, or from which it could be reasonably inferred, that the doctor and hospital named as defendants are state actors subject to suit under § 1983. Accordingly, Plaintiff has failed to state a claim for relief under § 1983, and the district judge should dismiss the § 1983 claims asserted against both defendants.

II. The Stark Act

Broadly stated, the Stark Act, 42 U.S.C. § 1395nn, "forbids hospitals to bill Medicare for certain services when the hospital has a financial relationship with the doctor who asked for those services, unless an exception applies." United States ex rel. Bookwalter v. UPMC, 938 F.3d 397, 402 (3d Cir. 2019). The Stark Act does not create a private right to sue for violations of the statute. See id. at 406; Ameritox, Ltd. v. Millennium Labs., Inc., 803 F.3d 518, 522 (11th Cir. 2015); U.S. ex rel. Drakeford v. Tuomey Healthcare Sys., Inc., 675 F.3d 394, 396 (4th Cir. 2012) ("[T]he Stark Law does not create its own right of action[.]"). The district judge should dismiss the Stark Act claims asserted against both defendants for failure tostate a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2).

III. Human Rights Act of 1998

Plaintiff cites a law he calls the "Human Rights Act of 1998" as grounds for relief in this case. A law in effect in the United Kingdom bears that title. See Human Rights Act 1998, ch. 42, http://www.legislation.gov.uk/ukpga/1998/42/contents. That law does not provide plaintiff with a cause of action against the defendants here, arising from events occurring in New Hampshire. Accordingly, the district judge should dismiss the "Human Rights Act of 1998" claims.

IV. Defendant Weeks Medical Center

A. EMTALA Claim against WMC

EMTALA "is designed to prevent hospital emergency rooms from refusing to accept or treat patients with emergency conditions if the patient does not have medical insurance." Alvarez-Torres v. Ryder Mem'l Hosp., Inc., 582 F.3d 47, 51 (1st Cir. 2009) (citation and internal quote omitted). To this end, EMTALA imposes duties on covered facilities to: "(a) provide an appropriate medical screening examination for those who come to an emergency room seeking treatment, and (b) provide, in certain situations, such further medical examination and such treatmentas may be required to stabilize the medical condition." Id. (citations omitted).

To establish an EMTALA violation, a plaintiff must prove that:

(1) the hospital is a participating hospital, covered by EMTALA, that operates an emergency department (or an equivalent facility); (2) the patient arrived at the facility seeking treatment; and (3) the hospital either (a) did not afford the patient an appropriate screening in order to determine if she had an emergency medical condition, or (b) bade farewell to the patient (whether by turning her away, discharging her, or improvidently transferring her) without first stabilizing the emergency medical condition.

Id. (citation omitted). To succeed under the EMTALA stabilization provision, plaintiff must demonstrate that Dr. Ford, or some other unnamed WMC staff member, determined that he had an emergency medical condition, as that term is defined by § 1395dd(e)(1)(A). See Alvarez-Torres, 582 F.3d at 52.

The court assumes for the purposes of preliminary review that WMC is a participating hospital as defined in 42 U.S.C. §§ 1395cc, 1395dd(e)(2). Plaintiff has sufficiently alleged that he arrived at WMC's emergency room seeking treatment for severe, debilitating sciatica pain. Plaintiff's allegations are sufficient to give rise to a reasonable inference that he had an obvious, potentially emergency medical condition. Although plaintiff does not allege that defendants failed to screen him, he alleges defendants refused to treat him, refused to help himget to another hospital, and had law enforcement remove him without first stabilizing his pain. See, e.g., Compl. (Doc. No. 1), at 2. Plaintiff's claim that defendant WMC violated the stabilization provision of EMTALA survives preliminary review. In an Order issued this date, the court has directed service of that EMTALA stabilization claim against WMC.

B. Title VI of the Civil Rights Act against WMC

Title VI of the Civil Rights Act provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. Hospitals or other health care providers operating programs that accept Medicare or Medicaid have been deemed to be subject to federal laws prohibiting discrimination by entities that receive "Federal financial assistance." See, e.g., Lesley v. Hee Man Chie, 250 F.3d 47, 53 (1st Cir. 2001) ("The receipt of Medicare or Medicaid payments qualifies as receiving 'federal financial assistance' under the Rehabilitation Act. 'It is not necessary that federal funds be received for care and treatment of complaining plaintiff.'" (citations omitted))....