Foord v. Capital Region Health Care Corp.

2020 DNH 011

William D. Foord, MD, individually and as Trustee and Executor of the Estate of Carol C. Foord v. Capital Region Health Care Corp. d/b/a Concord Hospital et al.

Case No. 17-cv-596-AJ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

January 27, 2020

MEMORANDUM ORDER

The plaintiff, William Foord, M.D. ("Dr. Foord"), brings this action alleging that his wife, decedent Carol Foord ("Ms. Foord"), received inadequate care from several medical providers prior to her death on November 24, 2015.¹ Doc. no. 51. Dr. Foord seeks recovery for violations of the Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd, medical malpractice, and loss of consortium.² Id. One of the defendants, Capital Region Health Care Corp. d/b/a Concord Hospital ("Concord Hospital"), moves for summary judgment. Doc. no. 81. Dr. Foord objects. Doc. no. 90. For the reasons thatfollow, the motion is granted as to the EMTALA claim and the state law claims are dismissed without prejudice.³

I. Summary Judgment Standard

Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d 206, 215 (1st Cir. 2016). "An issue is 'genuine' if it can be resolved in favor of either party, and a fact is 'material' if it has the potential of affecting the outcome of the case." Xiaoyan Tang, 821 F.3d at 215 (quoting Pérez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 25 (1st Cir. 2011)) (internal quotation marks omitted). At the summary judgment stage, the court "view[s] the facts in the light most favorable to the non-moving party" and "draw[s] all reasonable inferences in the nonmovant's favor . . . ." Garmon v. Nat'l R.R. Passenger Corp., 844 F.3d 307, 312 (1st Cir. 2016) (first quoting Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 19 (1st Cir. 1999); then quoting Pina v. Children's Place, 740 F.3d 785, 795 (1st Cir. 2014)). The court will not, however, credit "conclusory allegations, improbable inferences, and unsupported speculation." Fanning v. Fed. Trade Comm'n, 821F.3d 164, 170 (1st Cir. 2016) (quoting Méndez-Aponte v. Bonilla, 645 F.3d 60, 64 (1st Cir. 2011)), cert. denied, 137 S. Ct. 627 (2017).

"A party moving for summary judgment must identify for the district court the portions of the record that show the absence of any genuine issue of material fact." Flovac, Inc. v. Airvac, Inc., 817 F.3d 849, 853 (1st Cir. 2016). Once the moving party makes the required showing, "the burden shifts to the nonmoving party, who must, with respect to each issue on which [it] would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in [its] favor." Id. (quoting Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010)). "This demonstration must be accomplished by reference to materials of evidentiary quality, and that evidence must be more than 'merely colorable.'" Id. (citation omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). The nonmoving party's failure to make the requisite showing "entitles the moving party to summary judgment." Id.

II. Background

The relevant facts, viewed in the light most favorable to Dr. Foord, are as follows. On November 14, 2015, Ms. Foord presented at Memorial Hospital's ("Memorial") Emergency Department with numbness and sensory deficit on the left side ofher body, along with hemi-paralysis and deadweight on her left side. Doc. no. 90 at 3. She was examined by Dr. James Clifford, who consulted with a radiologist. Doc. no. 81-1 at 2.⁴ Ms. Foord's providers at Memorial reviewed her tests and concluded that her symptoms were caused by old brain calcifications, not a subarachnoid hemorrhage. Id. They recommended that Ms. Foord follow up with her primary care provider ("PCP"). Id. The next day, she called her PCP, who advised her to go to Maine Medical Center ("MMC"). Doc. no. 81-2 at 2-3.

On November 16, Ms. Foord presented to MMC and was examined by a neurologist, who recommended that she stay overnight and undergo magnetic resonance imaging ("MRI") and magnetic resonance angiography ("MRA") tests.⁵ Doc. no. 81-1 at 2. However, the Foords left MMC against medical advice. Doc. no. 81-2 at 4. The next day, November 17, Ms. Foord called her PCP to arrange for imaging studies at Memorial, but her insurer did not approve them. Id. at 5. On November 18, Ms. Foord againattempted to have the studies done at Memorial, but her insurer had still not approved them. Id. Ms. Foord's PCP then referred her to Concord Hospital. Id.

On November 19,⁶ Ms. Foord presented at Concord Hospital's Emergency Department. Doc. no. 81-4 at 5. When the Foords arrived, they were triaged "quite immediately." Doc. no. 81-2 at 6. Ms. Foord underwent an evaluation of her chief complaint, assessment of her airway, breathing, circulation, and mental status, and performance of her vital signs, including temperature, blood pressure, pulse, respiratory rate, oxygen saturation, and pain level. See doc. nos. 81-1 at 3, 81-4 at 7. Hospital staff also conducted an initial health screening covering her medical history, recent travel, tobacco use, and immunization history. See doc. nos. 81-1 at 3, 81-4 at 7. Subsequently, Ms. Foord underwent additional neurological, respiratory, cardiovascular, extremity, Glasgow coma, abdominal, and genito-urinary evaluations. See doc. nos. 81-1 at 3, 81-4 at 7.

Dr. Fox then saw Ms. Foord and took a chief complaint, a history of present illness, and past medical, medication, surgical, and social history. Doc. nos. 81-2 at 13, 81-4 at 2.Dr. Fox also conducted a physical exam that included an overall general assessment, vital signs, and an examination of the head, eyes, ears, nose, throat, neck, lungs, heart, abdomen, extremities, and neurological function. Doc. nos. 81-1 at 4, 81-4 at 2-3. She also performed a stroke scale. Doc. no. 81-4 at 7. Dr. Fox consulted with a neurologist, who recommended an MRI and an MRA of the brain. Doc. nos. 81-2 at 13, 81-4 at 3. Those tests were performed, though Dr. Foord points out that the MRA was performed on the Circle of Willis, which is distinct from the surface of the brain. Doc. nos. 81-4 at 3, 90 at 4. Dr. Fox discussed the results with Dr. Venus, the interpreting radiologist, who believed the results could indicate a subarachnoid hemorrhage and recommended a computerized tomography ("CT") scan. Doc. no. 81-4 at 3. When Dr. Fox informed Ms. Foord of this recommendation, Foord said that she thought the area of concern resulted from a traumatic brain injury as a child, not from a subarachnoid hemorrhage. Id. She also informed Dr. Fox that her providers at MMC told her she did not have a subarachnoid hemorrhage. Id.

Ms. Foord underwent a CT scan. Doc. no. 81-4 at 3, 21-22. After reviewing the results of this scan, Dr. Venus concluded that Ms. Foord did not have a subarachnoid hemorrhage. Id. Healso recommended an MRI with gadolinium⁷ and a magnetic resonance venography ("MRV") test.⁸ Id. at 3, 18. Dr. Fox diagnosed Ms. Foord as follows: "Intermittent left hemiparesis, transient, resolved. Concern for possible complex migraine versus seizure." Id. at 3. Ms. Foord was discharged, with an outpatient test⁹ and a follow-up neurology appointment scheduled. Doc. nos. 81-2 at 9, 81-4 at 3. At the time of discharge, Ms. Foord was asymptomatic, ambulatory, walking, talking, and stable. Doc. no. 81-2 at 7, 14.

The next day, November 20, Ms. Foord called her PCP and reported that "everything is fine." Id. at 10. On November 23, Ms. Foord underwent an EEG and was informed by the interpreting physician that the results were normal. Id. However, on November 24, she had "the worst headache of [her] life" and died later that day. Id. at 1, 16.

III. Discussion

Dr. Foord brings claims against Concord Hospital for violations of the Emergency Medical Treatment and Active Labor Act (EMTALA), as well as for medical malpractice and loss of consortium under New Hampshire law. The court first addresses Dr. Foord's federal EMTALA claim.

A. Dr. Foord's EMTALA Claim

Concord Hospital argues that there is no genuine dispute as to whether its treatment of Ms. Foord complied with the requirements set out by EMTALA. Dr. Foord contends that Concord Hospital violated EMTALA by failing to conduct the proper screening tests and failing to stabilize Ms. Foord before discharging her.

Congress passed "EMTALA in 1996 in response to claims that hospital emergency rooms were refusing to treat patients with emergency conditions but no medical insurance." Ramos-Cruz v. Centro Medico del Turabo, 642 F.3d 17, 18 (1st Cir. 2011) (citing Reynolds v. MaineGeneral Health, 218 F.3d 78, 83 (1st Cir. 2000)). Thus, EMTALA "is a limited anti-dumping statute, not a federal malpractice statute." Id. (quoting Reynolds, 218 F.3d at 83); see also Correa v. Hosp. San Francisco, 69 F.3d 1184, 1192 (1st Cir. 1995) ("EMTALA does not create a cause of action for medical malpractice."). To make out an EMTALA claim,

a plaintiff must show (1) the hospital is a participating hospital, covered by EMTALA, that operates an emergency department; (2) the plaintiff 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) released the patient without first stabilizing the emergency medical condition.

Cruz-Vazquez v. Mennonite Gen. Hosp., Inc., 717 F.3d 63, 68-69 (1st Cir. 2013) (citing Correa, 69 F.3d at 1190).

Neither party disputes that Concord Hospital is a participating hospital. Additionally, there is no dispute about whether Ms. Foord arrived at Concord Hospital seeking treatment. Therefore, the court must determine whether Concord Hospital failed to appropriately screen Ms. Foord or diagnosed her with an emergency medical condition...