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September 21, 1993


The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

 September 21, 1993


 On July 19, 1991, plaintiff Christopher Wey ("Wey" or "plaintiff") fell from his bicycle and injured his leg. He was transported by ambulance to Evangelical Community Hospital in Lewisburg, Pennsylvania ("defendant" or "the hospital"). Once there, he informed hospital personnel that he was HIV positive and that he suffered from Immune Thrombocytopenia ("ITP"), a condition which causes a lowered blood platelet count. Wey had been receiving treatment for both of these conditions from a physician at the Veterans Administration Medical Center in Wilkes-Barre, Pennsylvania ("VAMC").

 At the hospital, Wey learned that he had a bimalleolar fracture and dislocation of his right ankle. The emergency room physician attempted to relieve the dislocation but was unsuccessful. He informed Wey that he was in need of surgery to relieve the condition.

 At some point during the evening, a decision was made to transfer Wey to the VAMC in Wilkes-Barre. Wey was informed that the hospital did not provide an ambulance service, and that he might incur an expense in a transport by a private ambulance company, in spite of the fact that he was eligible for Medical Assistance benefits. Wey therefore was transported from defendant Evangelical Community Hospital to VAMC by private car, his own 1980 Honda Prelude, driven by his wife. Wey was discharged from Evangelical Community Hospital at 1:25 a.m. on July 20, 1991, and arrived at VAMC at 3:05 a.m. on the same date.

 Plaintiff now seeks from this court a judgment that his discharge and transfer violated the Federal Anti-Dumping Act, 42 U.S.C. §§ 1395dd, and a portion of the Public Health Service Act, 42 U.S.C. §§ 291 et seq., commonly known as the Hill-Burton Act. He also seeks $ 5,000.00 in general damages for his pain and suffering during the transfer, $ 1,000.00 for separation from his family while at VAMC, and an award of costs.

 Judgment shall be entered in favor of defendant. Plaintiff's transfer violated neither the Anti-Dumping Act nor the Hill-Burton Act. Plaintiff's condition was stabilized at the defendant hospital, fulfilling its burdens under the Anti-Dumping Act. Assuming further responsibilities on the part of the hospital, the transfer was appropriate and plaintiff was provided with the opportunity to refuse to consent to the transfer. The hospital does not provide ambulances, nor can it ensure the provision of a particular ambulance, so that no service of the hospital was denied to plaintiff. Therefore, the Hill-Burton Act was not violated.

 At the non-jury trial held July 6, 1993, the evidence received by the court included testimony from the plaintiff, his wife and the emergency room nurse, deposition testimony from the emergency room physician, and two expert reports, one from an infectious disease specialist and the other from an orthopaedic surgeon. On the basis of all the evidence, and on an extensive stipulation of facts, the court finds the following facts.


 1. The events out of which this action arises occurred during the late evening hours of July 19, 1991 and the early morning hours of July 20, 1991.

 2. Plaintiff was a resident of Lewisburg, Union County, Pennsylvania on July 19, 1991 and continues to reside there.

 4. Wey is HIV positive and suffers from Immune Thrombocytopenia ("ITP"), a disease which causes him to experience low platelet count.

 5. Wey, a recovering drug addict, was diagnosed as being HIV positive in 1984 and has been suffering from ITP since 1989.

 6. As of July 19, 1991, Wey was receiving treatment for both these conditions at the Veterans' Administration Hospital at Wilkes Barre, Pennsylvania (VAMC) and Geisinger Medical Center in Danville, Pennsylvania.

 7. As a result of his HIV positive status and his ITP, Wey's medications had included both AZT and Dapsone.

 8. As of July 1991, Wey was seeing Dr. Brady, an oncologist at Geisinger Medical Center and Dr. Plotkin at the VAMC for treatment of his conditions. Wey considered Dr. Plotkin to be his treating physician at the VAMC.

 9. In July 1991, Wey did not have a treating physician in Lewisburg, Pennsylvania.

 10. Dr. Gordon, an infectious disease specialist at Geisinger Medical Center, had begun treating Wey with AZT in 1988. At some time prior to July 19, 1991, Wey transferred his care relative to the provision of AZT to Dr. Plotkin at the VAMC because he was dissatisfied with Dr. Gordon.

 11. Wey continued to see Dr. Brady, an oncologist at Geisinger Medical Center for treatment of his ITP.

 12. Based on the medical records, Wey's treatment at Geisinger Medical Center in 1991 included visits to the Hematology/Oncology Clinic in February, March and April, the Department of Psychiatry in May (twice) and the Infectious Disease Clinic in May.

 13. Based on the medical records, the most recent treatments at the Infectious Disease Clinic at the VAMC prior to July 19, 1991 were as follows:

 (a) On June 8, 1991, Wey was admitted for detoxification. The medical records list a history of HIV and thrombocytopenia. The blood platelet count was low and Wey received IV Gammaglobulin (IVIG) and AZT. He was discharged on July 3, 1991, after an inpatient stay of 25 days. From May 30, 1991 to July 2, 1991, Dr. Plotkin worked with Wey's ITP and Wey received treatment for his low platelets on several occasions.

 (b) On July 18, 1991, Wey was seen in the VAMC Infectious Disease Clinic as an outpatient and a platelet count was ordered. Restarting his Dapsone was considered. Wey was also seen as an outpatient by the psychiatric service to help maintain his psychological stability.

 14. As of the discharge from the VAMC on July 2, 1991, Dr. Plotkin had discussed with Wey the possibility of a future admission to get Wey's platelets to a satisfactory level through intravenous gammaglobulin (IVIG) therapy.

 15. At his visit to the VAMC on July 19, 1991, Dr. Plotkin discussed with Mr. and Mrs. Wey the ITP and the fact that Wey might possibly still require future treatment with IVIG. Dr. Plotkin anticipated performing a complete blood analysis and workup at the VAMC.

 16. At the time of his visit to VAMC on July 18, 1991, Wey was told to return to the Infectious Disease Clinic in one month.

 17. Wey is a veteran and had received an honorable discharge. As of July 19, 1991, he was thus entitled to free treatment at the VAMC.

 18. As of July 19, 1991, Wey was also covered by the Pennsylvania Medical Assistance program, the state version of Medicaid. As a beneficiary under this program, Wey was entitled to have his medical care paid for by the Medical Assistance program.

 19. As of July 19, 1991, Wey was receiving Social Security disability benefits, but was not yet entitled to Social security medical benefits (Medicare).

 20. Defendant hospital is a non-profit corporation and a health care provider, maintains an emergency room and provides emergency medical services.

 22. On the evening of July 19, 1991, at approximately 11:00 p.m., Wey and a friend, Richard Donohue, were riding their bicycles in the Lewisburg area. Wey fell and injured his ankle.

 23. A passerby reported this accident and the William Cameron Ambulance Company, a volunteer organization located in Lewisburg, responded to the location.

 24. Wey was taken to the emergency room of the hospital by the ambulance from the William Cameron Ambulance Company.

 25. While Wey was being transported to the Hospital, Donohue went to Wey's home to inform Mrs. Wey of what had happened. Donohue and Mrs. Wey arrived at the hospital thereafter.

 26. Wey was later billed for this transportation by the William Cameron Ambulance Company. When he received the bill, he notified them that he was covered by Medical Assistance and the ambulance company then billed Medical Assistance for the services and sought no further payment from Wey.

 27. Wey arrived at the emergency room of the hospital at 11:52 p.m., July 19, 1991.

 28. When Wey presented at the hospital, he was screened and determined to have an emergency medical condition consisting of a bimalleolar fracture and dislocation of the right ankle as a result of the biking accident.

 29. By approximately 11:55 p.m., Wey was seen by Dr. Barry Spector.

 30. Dr. Spector is an employee of the hospital and was acting as the hospital's agent throughout his treatment of Wey. Dr. Spector was the emergency room physician on duty on the evening of July 19 and the morning of July 20, 1991.

 31. Dr. Spector, a physician since 1979, is Board Certified in Emergency Medicine and in Pediatrics; his specialty then was the practice of Emergency Medicine.

 32. Dr. Spector's duties while in the emergency room included evaluating patients seeking care through the emergency department, making decisions concerning the care needed, handling the disposition of that care, and determining whether the patient should or should not be admitted to a hospital.

 33. Dr. Spector's first involvement was directly with Wey; he had no prior communication with the ambulance personnel or hospital staff, including the emergency room clerk or any emergency room triage nurse.

 34. Dr. Spector determined that Wey needed immediate care and treatment in the emergency room.

 35. Dr. Spector personally obtained the medical history from Wey. At the time, Wey was confused, frustrated and in pain.

 36. As part of the history taking, Wey disclosed that he was HIV positive and had ITP. He made this disclosure out of concern for those treating him, and because he knew that the information was important for purposes of diagnosis and treatment.

 37. During the course of this history taking, Dr. Spector became aware that Wey had been treated at the VAMC and was given Dr. Plotkin's name.

 38. As part of the history taking, Dr. Spector believed that Wey was to return to the VAMC under the care of Dr. Plotkin, whom Dr. Spector knew, for a complete blood analysis relative to his ITP condition.

 39. As of July 19, 1991, Dr. Spector was not aware that Wey was being treated at any facility or hospital other than the VAMC. Wey did not disclose to Dr. Spector that he had previously been treated by physicians at the Geisinger Medical Center for the HIV positive and ITP conditions.

 40. Wey had never sought treatment for his HIV or ITP conditions at defendant hospital.

 41. At all times during his provision of care and treatment to Wey, Dr. Spector was not aware that Wey was a Medical Assistance recipient and had no knowledge as to what third-party source of payment, if any, existed.

 42. Mrs. Wey arrived at the emergency room while Wey was being seen by Dr. Spector.

 44. No one at the hospital asked Wey if he had Blue Cross and Blue Shield, commercial health insurance or Medical Assistance.

 45. Upon admission, there was never any conversation between Wey and any employee of the hospital about how Wey was going to pay for the services being received.

 46. At no time while Wey was at the hospital on July 19 or July 20, 1991 did Dr. Spector or any nurse, clerical person or employee of the hospital ever discuss with Wey how he would make payment of the hospital bill, whether he had Blue Cross and Blue Shield, health insurance, a Medical Assistance card, or how he would pay for any contemplated future medical services dealing with the fractured ankle.

 47. Any conversation regarding how Wey would pay for the emergency room services or any contemplated future medical service dealing with the fractured ankle were with Mrs. Wey.

 48. The only discussion with Mrs. Wey relative to payment was the discussion with the clerk during which Mrs. Wey produced the blue medical card showing that Wey was covered by Medical Assistance.

 49. Mrs. Wey was not present for Dr. Spector's initial discussion with Wey.

 50. Mrs. Wey met her husband in the emergency room and spoke with Dr. Spector.

 51. Mrs. Wey had just completed an eight hour shift at her place of employment, was tired, and was frustrated by the fact that her husband was hurt.

 52. Donohue, Wey's friend, remained in the waiting room at the hospital.

 53. At 12:05 a.m., July 20, 1991, Wey was given a shot of Demoral and was taken to the x-ray department.

 54. The x-ray showed that Wey had a bimalleolar fracture and dislocation of the right ankle.

 55. Wey returned from x-ray at 12:20 a.m., July 20, 1991.

 56. Dr. Spector attempted to reduce the dislocation, but was unsuccessful in so doing.

 57. After reviewing Wey's x-rays, Dr. Spector believed that Wey would need surgical treatment to reduce the dislocation and treat the fracture.

 58. Open reduction and internal fixation of a bimalleolar fracture and dislocation is a form of inpatient hospital treatment normally covered by Medical Assistance.

 59. Dr. Spector told both Mr. and Mrs. Wey that Wey would need surgery.

 60. A second attempt to reduce the dislocation was offered by Dr. Spector and declined by Wey.

 61. A decision was made to transfer Wey. Dr. Spector discussed the possibility of a transfer with Wey, who did not object to the transfer and indicated that he felt comfortable at VAMC.

 62. Dr. Spector did not consider the HIV positive status to be of importance in the decision to transfer, but did consider the ITP to be important.

 63. Any acute medical condition, i.e. the bimalleolar fracture and dislocated ankle, for which Wey needed treatment, had to be viewed and considered in the context of his medical history.

 64. Dr. Spector did not order a platelet count for Wey while he was at the hospital. He reasoned that Wey had sustained a superficial abrasion, the bleeding was controlled, and there was no oozing and no expanding hematoma in the area of the fracture.

 65. At 12:25 a.m. Dr. Spector splinted Wey's ankle and gave Wey one further injection of Demoral shortly before the discharge and transfer, to reduce the pain and provide additional comfort.

 66. The nature of the injury to Wey's ankle was accurately diagnosed and Dr. Spector appropriately applied a sugar thong and splint to keep the ankle totally immobile. Ice was also applied.

 67. In summary, Dr. Spector examined the patient, ordered and read x-rays, administered an injection of Demoral, attempted to reduce the dislocation, suggested to Wey another attempt at reduction, splinted the ankle, applied ice and, as ...

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