UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

William D. Foord, MD, individually and as Trustee and Executor of the Estate of Carol C. Foord

v. Case No. 17-cv-596-AJ Opinion No.

Capital Region Health Care Corp. d/b/a Concord Hospital et al.

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 that

1 The amended complaint alleges that Ms. Foord died on November 26, 2015, but Dr. Foord identified her actual date of death as November 24, 2015 in his deposition. See doc. no. 81-2 at 1. 2 Dr. Foord brings the medical malpractice and loss of consortium

counts under New Hampshire law. follow, 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.,

(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,

(quoting Pérez–Cordero v. Wal–Mart P.R., Inc.,

(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.,

(1st Cir. 2016)

(first quoting Rodriguez–Cuervos v. Wal–Mart Stores, Inc.,

(1st Cir. 1999); then quoting Pina v. Children's

Place,

(1st Cir. 2014)). The court will not,

however, credit “conclusory allegations, improbable inferences,

and unsupported speculation.” Fanning v. Fed. Trade Comm’n, 821

3 As the court declines to exercise supplemental jurisdiction over Dr. Foord’s state law claims, it need not consider Concord Hospital’s request for summary judgment on those claims.

, 170 (1st Cir. 2016) (quoting Méndez–Aponte v. Bonilla,

(1st Cir. 2011)), cert. denied,

(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.,

(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.”

(quoting Borges ex rel. S.M.B.W. v. Serrano–Isern,

(1st Cir. 2010)). “This demonstration must be accomplished by

reference to materials of evidentiary quality, and that evidence

must be more than ‘merely colorable.’”

(citation omitted)

(quoting Anderson v. Liberty Lobby, Inc.,

(1986)). The nonmoving party’s failure to make the requisite

showing “entitles the moving party to summary judgment.”

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 of

3 her 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.

They

recommended that Ms. Foord follow up with her primary care

provider (“PCP”).

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 again

4 The court may rely on Concord Hospital’s narrative for facts that have not been opposed by Dr. Foord. See LR 56.1(b) (“All properly supported material facts set forth in the moving party’s factual statement may be deemed admitted unless properly opposed by the adverse party.”).

5 An MRA “is a noninvasive test that is used in evaluating the blood vessels in a patient’s brain and neck.” Gage v. Rymes Heating Oils, Inc., No. 14-cv-480-PB,

, at *3 n.2 (D.N.H. Mar. 1, 2016).

4 attempted to have the studies done at Memorial, but her insurer

had still not approved them.

Ms. Foord’s PCP then referred

her to Concord Hospital.

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.

6 The amended complaint alleges that Ms. Foord presented at Concord Hospital on November 18, 2015, but Concord Hospital’s records show that her visit occurred on November 19, 2015. See doc. no. 81-4 at 2.

5 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.

She

also informed Dr. Fox that her providers at MMC told her she did

not have a subarachnoid hemorrhage.

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.

He

6 also recommended an MRI with gadolinium 7 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 test 9 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.

7 Gadolinium-based contrast agents may be “administered to patients to enhance the quality of MRIs.” McGrath v. Bayer HealthCare Pharm. Inc.,

, 164 (E.D.N.Y. 2019).

8 An MRV uses technology similar to an MRI but creates imaging of the veins. See Ricciardi v. Comm'r of Soc. Sec., No. 15 Civ. 1140 (JCF),

, at *4 n.3 (S.D.N.Y. Nov. 16, 2016).

9 The type of outpatient test that was scheduled is disputed by the parties. Concord Hospital suggests it was an electroencephalogram (EEG). Doc. no. 81-1 at 5. Dr. Foord asserts that it was an MRA with gadolinium. Doc. no. 90 at 5.

7 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,

(1st Cir. 2011)

(citing Reynolds v. MaineGeneral Health,

(1st

Cir. 2000)). Thus, EMTALA “is a limited anti-dumping statute,

not a federal malpractice statute.”

(quoting Reynolds,

); see also Correa v. Hosp. San Francisco,

(1st Cir. 1995) (“EMTALA does not create a cause of

action for medical malpractice.”). To make out an EMTALA claim,

8 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.,

(1st Cir. 2013) (citing Correa,

).

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 and failed to stabilize that

condition before releasing her.

1. Appropriate Screening

Dr. Foord argues that Concord Hospital failed to

appropriately screen Ms. Foord. EMTALA does not define

“appropriate medical screening,” but the First Circuit has

stated that a participating hospital must provide an examination

“reasonably calculated to identify critical medical conditions

that may be afflicting symptomatic patients and provides that

level of screening uniformly to all those who present

substantially similar complaints.”

at 69 (quoting Correa,

). A “touchstone” in determining uniform

9 treatment is “[w]hether a hospital’s existing screening protocol

was followed in a circumstance where triggering symptoms were

identified by hospital emergency room staff . . . .”

(citing Cruz–Queipo v. Hosp. Español Auxilio Mutuo de P.R.,

(1st Cir. 2005); Battle v. Mem’l Hosp.,

(5th Cir. 2000); Summers v. Baptist Medical Ctr.

Arkadelphia,

(8th Cir. 1996)); see also

Correa,

(“The essence of this requirement is

that there be some screening procedure, and that it be

administered even-handedly.”). The First Circuit has provided

further guidance:

Circumstances where a screening protocol was not followed when triggering symptoms were identified have been distinguished, for the purposes of EMTALA coverage, from situations where: (1) no screening protocol existed; (2) standard screening procedures existed but were not followed because no identifiable triggering symptoms were presented; and (3) standard screening procedures were in fact followed when identifiable triggering symptoms were presented but an improper diagnosis resulted.

Cruz-Vazquez,

(emphasis added) (citations

omitted). To establish a screening violation, however, a

plaintiff “need not prove that she actually suffered from

an emergency medical condition when she first came through

the portals of the defendant's facility; the failure

appropriately to screen, by itself, is sufficient to ground

10 liability as long as the other elements of the cause of

action are met.”

(quoting Correa,

).

The record demonstrates that Concord Hospital conducted an

appropriate screening during Ms. Foord’s visit on November 19,

2015. Concord Hospital’s Emergency Department policy requires

qualified medical personnel to screen, examine, test, and

evaluate a patient to determine whether she has an emergency

medical condition. See doc. nos. 81-3 at 1, 81-7. After

arriving at Concord Hospital on November 19, Ms. Foord underwent

thorough screening evaluations conducted by the nursing staff

and Dr. Fox. Doc. no. 81-4 at 2-3, 7. The Concord Hospital

providers performed MRI and MRA tests on Ms. Foord. Id. at 3.

Dr. Fox discussed the results with Dr. Venus, who recommended a

CT scan to determine whether there was a subarachnoid

hemorrhage. Id. Ms. Foord underwent the CT scan. Id. at 21-

22. After reviewing the results of this scan, Dr. Venus

concluded that Ms. Foord did not have a subarachnoid hemorrhage.

Id. at 3, 21-22. Dr. Fox ultimately diagnosed Ms. Foord with

“[i]ntermittent left hemiparesis, transient, resolved. Concern

for possible complex migraine versus seizure.” Id. at 3.

Concord Hospital’s evaluation and treatment of Ms. Foord

were “reasonably calculated to identify critical medical

conditions.” Moreover, based on the undisputed material facts,

no reasonable jury could find that Concord Hospital departed

11 from its standard procedures or applied them in an uneven

manner. In short, even considering the record in the light most

favorable to Dr. Foord, Concord Hospital complied with its

EMTALA screening requirements.

Dr. Foord puts forward several “disputed” facts and

contends that they create a triable issue as to whether Concord

Hospital conducted appropriate screening measures. The court

will address the disputes that are material to the appropriate

screening inquiry.

Dr. Foord asserts that an MRA was not performed on Ms.

Foord’s brain but was instead performed on her Circle of Willis.

However, this fact – even if taken as true – is immaterial to

the EMTALA analysis. Instead, the issue of whether Ms. Foord’s

doctors properly conducted the MRA bears on Dr. Foord’s medical

malpractice claim.

Dr. Foord also asserts that while Dr. Venus indicated that

“additional screening examinations” including an MRV and MRI

with contrast were necessary, they were never performed. Doc.

no. 90 at 5. However, in the same paragraph, Dr. Foord concedes

that a CT scan was performed. See id. Ms. Foord’s medical

records show that Dr. Venus’s preliminary diagnosis of

subarachnoid hemorrhage changed based on the findings of the CT

scan. See doc. no. 81-4 at 3, 17-18, 21-22. EMTALA requires

that Concord Hospital conduct the screening tests necessary to

12 determine whether a patient is suffering from an emergency

medical condition. The record shows that in Ms. Foord’s case,

it did so.

Finally, Dr. Foord asserts that Concord Hospital

inaccurately set forth the opinions of his experts, Dr.

Stanhiser and Dr. Jensen. He points out Dr. Stanhiser’s opinion

that Dr. Fox failed to order a CT of Ms. Foord upon her arrival

and to admit her based on her findings. Doc. no. 90 at 6. Dr.

Foord also highlights Dr. Jensen’s statement that Concord

Hospital staff should have treated Ms. Foord as a “subarachnoid

patient” and that “further screening examinations” including

computed tomography angiography (CTA) and computed tomography

venography (CTV) tests should have been ordered. Id. The

criticism advanced by Dr. Stanhiser and Dr. Jensen is not that

Concord Hospital failed to screen Ms. Foord; it is that Concord

Hospital screened Ms. Foord incorrectly. Therefore, while these

allegations are germane to Dr. Foord’s malpractice claim, they

are not material to the EMTALA claim.

Throughout his opposition memorandum, Dr. Foord argues that

Concord Hospital was required to conduct a battery of imaging

tests – including an MRA of the brain (instead of the Circle of

Willis), an MRV, an MRI with contrast, a CTA, and a CTV – for a

variety of reasons. However, that reading of the statute is

misguided. EMTALA requires only that a hospital screen in a

13 manner reasonably calculated to identify critical medical

conditions and provide that level of screening uniformly. See

Cruz-Vazquez v. Mennonite Gen. Hosp., Inc.,

. Dr.

Foord’s relentless entreaties do not reflect the actual

requirements of EMTALA. Taking the existing record into

account, there is no genuine dispute regarding whether Concord

Hospital followed proper screening procedures. Thus, to survive

summary judgment on his EMTALA claim, Dr. Foord must show that

there is a genuine dispute regarding whether Concord Hospital

failed to stabilize Ms. Foord before discharging her on November

19, 2015.

2. Duty to Stabilize

Dr. Foord argues that Ms. Foord was suffering from an

emergency medical condition, which Concord Hospital failed to

stabilize before discharge. EMTALA defines “emergency medical

condition” as “a medical condition manifesting itself by acute

symptoms of sufficient severity (including severe pain) such

that the absence of immediate medical attention could reasonably

be expected to result in . . . placing the health of the

individual . . . in serious jeopardy,” “serious impairment to

bodily functions,” or “serious dysfunction of any bodily organ

or part . . . .” 42 U.S.C. § 1395dd(e)(1)(A). The statute goes

on to define “to stabilize” as providing “such medical treatment

of the condition as may be necessary to assure, within

14 reasonable medical probability, that no material deterioration

of the condition is likely to result from or occur during the

transfer of the individual from a facility . . . .” 42 U.S.C. §

1395dd(e)(3)(A).

EMTALA’s duty to stabilize “does not impose a standard of

care prescribing how physicians must treat a critical patient's

condition while he remains in the hospital, but merely

prescribes a precondition the hospital must satisfy before it

may undertake to transfer the patient.” Alvarez-Torres v. Ryder

Mem'l Hosp., Inc.,

(1st Cir. 2009) (quoting

Fraticelli–Torres v. Hosp. Hermanos,

(1st Cir.

2008)). In short, “[t]he stabilization provision requires a

covered hospital, within its staff and facilities, to provide an

individual it determines has an emergency medical condition with

‘such further medical examination and such treatment as may be

required to stabilize the medical condition.’”

at 52

(quoting 42 U.S.C. § 1395dd(b)(1)(A)).

The undisputed material facts show that Concord Hospital

stabilized Ms. Foord before discharging her on November 19.

Following a variety of tests and consultations, Ms. Foord

discussed a discharge plan with her doctors, which included

outpatient treatment. Doc. nos. 81-2 at 14-15, 81-4 at 3. Dr.

Foord admits that upon discharge, Ms. Foord was asymptomatic and

stable. Doc. no. 81-2 at 7, 14. Dr. Foord now insists that

15 because Ms. Foord still had abnormal findings at the time of

discharge and was actually suffering from a subarachnoid

hemorrhage, she had an emergency medical condition and by

definition could not be stabilized. However, this argument is

tautological; under that reasoning, any medical malpractice case

in which the doctors failed to correctly diagnose an emergency

condition and thereafter released the patient would trigger

EMTALA. This does not accurately reflect the legal requirements

under EMTALA. See Correa,

(“EMTALA does not

create a cause of action for medical malpractice.”). The

doctors at Concord Hospital did not diagnose a subarachnoid

hemorrhage and therefore acted reasonably based on their

diagnosis. 10 Thus, there is no genuine dispute that Ms. Foord’s

10Dr. Foord asserts that “cases in the First Circuit impose a duty on the hospital to stabilize the patient based on the question of whether deterioration of the patient’s condition is likely to occur within reasonable medical probability,” citing to Correa, 69 F.3d. Doc. no. 90 at 13-14. However, the issue in Correa related to the appropriate screening requirement, not the duty to stabilize, and did not set out the standard advanced by Dr. Foord. See Correa,

n.7 (“Because we uphold the jury's finding that HSF violated EMTALA when it failed to afford Ms. Gonzalez an appropriate screening, we need not comment upon the jury's finding that HSF also violated EMTALA by improperly transferring Ms. Gonzalez before her condition had stabilized.”). While Dr. Foord critiques the authority offered by Concord Hospital on this point, it appears that the First Circuit has adopted this interpretation. See Reynolds,

(“It is doubtful that the text of the statute would support liability under the stabilization provision for a patient who had DVT, absent evidence sufficient to support a finding that the hospital knew of his DVT.”); see also Kenyon v. Hosp. San Antonio, Inc.,

, 264

16 doctors at Concord Hospital stabilized her before discharge.

Concord Hospital’s motion is granted on the EMTALA claim.

B. Supplemental Jurisdiction

At oral argument, Dr. Foord urged the court to exercise its

supplemental jurisdiction over his state claims if summary

judgment was granted on the EMTALA claim. Unsurprisingly,

Concord Hospital takes the converse position. A district court

has “considerable authority whether to exercise [supplemental

jurisdiction], considering factors such as judicial economy,

convenience, fairness to litigants, and comity.” Ramos-

Echevarria v. Pichis, Inc.,

(1st Cir. 2011)

(citing Newman v. Burgin,

(1st Cir. 1991)).

The court “may decline to exercise supplemental jurisdiction

over a claim . . . if . . . the district court has dismissed all

claims over which it has original jurisdiction . . . .”

(emphasis added). Moreover, “[w]hen a plaintiff's

anchor claim is a federal cause of action and the court

(D.P.R. 2013) (“Thus, by its plain language, the statute does not provide a cause of action when a hospital does not stabilize an emergency medical condition that it negligently failed to diagnose.”). While EMTALA does include the “reasonable medical probability” language that Dr. Foord emphasizes, it is limited to situations where the deterioration would “result from or occur during the transfer . . . .” 42 U.S.C. § 1395dd(e)(3)(A); see also Fraticelli-Torres,

. Dr. Foord’s argument on this point essentially disputes the accuracy of the diagnosis, which bears on the malpractice claim but does not affect the EMTALA analysis.

17 unfavorably disposes of the plaintiff's federal claim at the

early stages of a suit, well before trial, the court generally

dismisses any supplemental state-law claims without prejudice.”

Ramos-Echevarria,

(citing Rodriguez v. Doral

Mortg. Corp.,

(1st Cir. 1995)).

As the court now grants Concord Hospital’s motion for

summary judgment on Dr. Foord’s EMTALA claim, only his state law

claims for medical malpractice and loss of consortium would

remain. The court declines to exercise supplemental

jurisdiction and dismisses Dr. Foord’s state claims without

prejudice to refiling in state court.

IV. Conclusion

For the reasons above, Concord Hospital’s motion for

summary judgment is granted as to Dr. Foord’s EMTALA claim. The

state law claims against Concord Hospital are dismissed without

prejudice.

SO ORDERED.

__________________________ Andrea K. Johnstone United States Magistrate Judge January 27, 2020

cc: Paul M. Monzione, Esq. Todd J. Hathaway, Esq. Abby Tucker, Esq. William N. Smart, Esq. Nicholas D. Meunier, Esq. Christopher M. Bracci, Esq. John D. Cassidy, Esq.

18