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WHITE v. MOSES TAYLOR HOSP.

September 30, 1992

KAREN WHITE, Individually and as Personal Representative of the Estate of KENNETH V. WHITE, Plaintiff
v.
MOSES TAYLOR HOSPITAL, Defendant



The opinion of the court was delivered by: WILLIAM J. NEALON, JR.

 By Memorandum and Order dated April 9, 1991, this court held that the plaintiff, the widow of Kenneth V. White, could not obtain personal relief under the Hill-Burton Act (HBA), 42 U.S.C. § 291 et seq., and regulations adopted by the Secretary of Health and Human Services, *fn1" from medical costs incurred by her late husband while a patient at defendant Moses Taylor Hospital. *fn2" Although it was decided that the plaintiff could not maintain a private action that encompassed personal relief from the decedent's hospital bill, the issue of whether the plaintiff would, nevertheless, be entitled to the forgiveness of the debt as a result of her lawsuit as a "private attorney general" to enforce the hospital's compliance with its statutory and regulatory obligations to provide a certain amount of "uncompensated services" to patients of limited financial resources was left open. *fn3" In other words, where a medical facility did not comply with the regulatory requirements, what was the extent of its liability, if any, to former patients who were eligible and may have received "uncompensated services" relief if the facility had instituted the program as required? See White v. Moses Taylor Hospital, 763 F. Supp. 776 (M.D.Pa. 1991). *fn4"

 Briefs on the issue were submitted, including an amicus curiae by the Secretary, and oral argument took place on March 23, 1992. Subsequently, the parties were requested to file supplemental briefs addressing the opinion of the Ninth Circuit Court of Appeals in Flagstaff Medical Center Inc. v. Sullivan 962 F.2d 879 (9th Cir. 1992), and the final submission was made by the Secretary on June 15, 1992. Accordingly, the motions of both parties for summary judgment are ripe for disposition and, for reasons which follow, the court will deny the plaintiff's motion and grant that of the defendant.

 I.

 The plaintiff's deceased spouse was hospitalized at Moses Taylor Hospital in September and October of 1983 and incurred a medical bill in the amount of $ 217,321.00. At that time, the Hospital did not inform the plaintiff of the availability of uncompensated services to eligible patients apparently because it believed its HBA obligation had been satisfied and had terminated its program in 1979. As a result of the plaintiff's failure to pay the bill, a collection action was instituted on August 18, 1984, and on April 24, 1985, a default judgment was entered against Karen White in the Court of Common Pleas of Lackawanna County. *fn5" Subsequently, the plaintiff obtained a stay of proceedings in the Court of Common Pleas and initiated the above-captioned suit on November 3, 1989.

 On July 22, 1991, the defendant filed a motion for summary judgment. The Hospital maintains that it is entitled to summary judgment under the HBA because the plaintiff Karen White (White) failed to apply for uncompensated services. The plaintiff also submitted a summary judgment motion on September 19, 1991, contending that two requests for uncompensated services were made on her behalf by Salvatore Pileggi (Pileggi) *fn6" in March 1989 and, thus, if eligible financially for HBA funds, her entire debt to the hospital should be extinguished. *fn7"

 At a March 23, 1992, hearing on the motions for summary judgment, the court raised the additional issues of: (a) whether a private action to enforce compliance encompasses the forgiveness of the plaintiff's debt, and the debt of all other eligible patients, because of the hospital's failure to give proper notice; (b) whether under § 124.512(b) the hospital may be required to exceed its Hill-Burton obligation to "remedy fully" its noncompliance with the Act; (c) whether the plaintiff has exhausted her administrative remedies with the Secretary under § 124.511; and, finally, (d) what is the proper scope of this court's review of the Secretary's interpretation of his own regulations?

 II.

 "As a general rule, if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, then summary judgment is appropriate." J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir.1990) (citations omitted). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (citation omitted). Further, "summary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "The facts must be viewed in the light most favorable to the party opposing the motion." Cruz v. Chesapeake Shipping, Inc., 932 F.2d 218, 223 (3d Cir. 1991) (citation omitted).

 "The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 III.

 The court will first address the decision in Flagstaff, supra, and, with due respect, decline to adopt the reasoning of the majority of that panel. The majority, in short, concluded that a private cause of action is provided for under the statute and regulations and a district court may grant full relief retrospectively from any debt owed to the medical facility by all persons eligible for "uncompensated services" during the period that the medical facility was not in compliance with its Hill-Burton obligations.

 In an earlier opinion, *fn8" this court held that no private cause of action for personal relief was contemplated by the Hill-Burton Act. "In the context of this issue, both the statute and regulations are very explicit in restricting the 'private action' to effectuating a medical facility's compliance with its assurances." White, 763 F. Supp. at 782 (citing 42 U.S.C. § 300s-6; 42 C.F.R. § 124.511(a)(4); and Oldfield v. Athletic Congress, 779 F.2d 505 (9th Cir. 1985)). It was held that the scope of the Act's enforcement scheme, §§ 124.511(a)(4) and 124.512(a), contemplated no more that the substitution of the private plaintiff for the Attorney General in an action to effectuate compliance. Therefore, a "private action" exists only to the same extent as it would for the Secretary or Attorney General and, accordingly,

 
the plaintiff cannot institute a "private action" with any more remedial authority than that which the Secretary or the Attorney General possesses. Thus, since the statute and regulations explicitly enable the Secretary and the Attorney General to bring an action at law only to effectuate compliance, the plaintiff is likewise restricted to ...

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