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Dicioccio v. Chung

United States District Court, E.D. Pennsylvania

January 19, 2017

VINCENT S. DICIOCCIO, ESQ., Administrator of the Estate of HENDRICO F. SALATA, SR., Plaintiff,
DON Y. CHUNG, M.D., et al., Defendants.


          Rufe, J.

         Before the Court are the Motion for Partial Summary Judgment of Defendant Pottstown Hospital Company, LLC (which operates Pottstown Memorial Medical Center, or “PMMC”), the Motion for Summary Judgment of Defendant Don Y. Chung, M.D., and the Motion to Dismiss of Defendant Nainesh Patel, M.D. For the reasons that follow, the motions will be denied.

         I. BACKGROUND

         This case concerns Hendrico F. Salata, Sr.'s death less than twenty-four hours after his discharge from PMMC, where he had arrived two days earlier complaining of chest pain. The following facts are not in dispute.[1] On May 28, 2012, at approximately 2:47 a.m., Mr. Salata arrived at PMMC's emergency department complaining of chest pain, which he rated as a “7/10.”[2] In triage, Mr. Salata's chief complaint was noted as “Chest Pain - Suspected Cardiac.”[3]During a primary assessment at approximately 3:00 a.m., Mr. Salata reported that the pain had begun two-to-four days earlier, radiated to the neck and jaw, and was “intermittent, ” among other things.[4] A full examination performed approximately ten minutes later revealed similar symptoms, and Mr. Salata also reported that he was a smoker with a history of hypertension.[5]

         A cardiac monitor attached during the primary assessment showed that Mr. Salata's pulses were palpable, strong, and intact.[6] Laboratory tests ordered in the emergency room showed cardiac risk factors including a triglyceride level of 840 (compared to a normal range of 120-200); an HDL level of 19 (compared to a normal range of 28-55); a cholesterol level of 241 (compared to a normal range of 120-200); and a glucose level of 128 (compared to a normal range of 65-99).[7] Dr. Chung, who treated Mr. Salata on May 28, testified during his deposition that a potential cause of these symptoms was “unstable angina, ” and that this diagnosis was not ruled out at the time.[8] Nonetheless, at 3:32 a.m., Mr. Salata's condition was noted as “stable” and he was placed on “observation status” under the care of Dr. Chung.[9]

         “Observation” is one of three statuses that patients at PMMC may be assigned, with the other two options being “inpatient” admission or “outpatient” treatment.[10] The distinction between inpatient admission and admission for observation is important for the present motion, but the record is mixed on this point. Richard McLaughlin, the Chief Medical Officer of PMMC, testified at his deposition that the difference is “purely a financial or payor or insurance classification at Pottstown, ” and that a patient admitted either “inpatient or observation” receives “the same exact bed, same exact unit and the same exact care.”[11] Heather Richards, one of the nurses who treated Mr. Salata in observation, also testified: “I don't treat my patients any differently whether they're an observation patient or an inpatient.”[12]

         However, Dr. Chung testified that he decided to place Mr. Salata in “observation” rather than to admit him as an “inpatient, ” that it is always the physician who “makes the determination whether someone is merely there for observation versus [] being admitted to the hospital, ” and that the distinction between admitting someone inpatient versus placing them in observation status is based on “clinical criteria.”[13] Dr. Chung also testified that he placed Mr. Salata in observation because Mr. Salata did not meet the clinical requirements for inpatient admission.[14]Specifically, Mr. Salata's “initial enzymes were within normal limits, his chest pain had improved, [and] he did not require any IV medications.”[15] Accordingly, at approximately 7:35 a.m., Mr. Salata left the emergency room for the primary care unit and was placed “in observation.”[16] Mr. Salata's admission-for-observation order noted that he was to receive continuous cardiac monitoring and EKGs “as necessary.”[17]

         At 12:20 p.m., approximately nine hours after arrival, Mr. Salata was noted as having some chest discomfort while eating.[18] By the next day, May 29, Dr. Chung had gone off service and was not in the hospital or on duty.[19] Dr. Patel, the consulting cardiologist, testified that he last saw Mr. Salata at approximately 9:00 a.m. on May 29, and that at that point, he believed that Mr. Salata's symptoms were reflux related, and were not caused by unstable angina.[20] At 9:20 a.m., Dr. Patel's nurse practitioner, Barbara Speelhoffer, stated that Mr. Salata could be discharged from a cardiac perspective.[21]

         At 10:30 a.m., Mr. Salata suffered an episode of “severe substernal burning, ” but no one notified Dr. Patel or Ms. Speelhoffer.[22] Dr. Patel testified that he informed his office on May 29 that Mr. Salata needed a “nuclear stress test” to rule out definitively whether his symptoms were caused by unstable angina, but no stress test was performed before Mr. Salata's discharge.[23]

         Mr. Salata was discharged at approximately 11:30 a.m. on May 29.[24] The discharge progress note listed his primary diagnosis as “esophageal reflux” with a secondary diagnosis of “essential hypertension, unspecified benign or malignant.”[25] At the time of his discharge, Mr. Salata was sitting upright, and his progress note stated that proton pump inhibitors given for reflux “[had] significantly improved [his] symptoms.”[26] Mr. Salata was given discharge instructions entitled “ACUTE CORONARY SYNDROME DISCHARGE INSTRUCTIONS” upon leaving PMMC.[27] Less than twenty-four hours later, on May 30, at 7:55 a.m., Mr. Salata again presented to PMMC's emergency department, this time as a “full code” with CPR in progress.[28] He was pronounced dead two minutes later.[29]

         Plaintiff, as administrator of Mr. Salata's estate, then filed suit in this Court against PMMC, Dr. Chung, and Dr. Patel, alleging five claims: (1) wrongful death against all Defendants; (2) a survival action against all Defendants; (3) negligence against all Defendants; (4) corporate negligence against PMMC; and (5) a failure-to-stabilize claim under the Emergency Medical Treatment and Active Labor Act (“EMTALA”) against PMMC.[30] PMMC has moved for summary judgment on the EMTALA claim only; Dr. Chung has moved for summary judgment on all claims against him; and Dr. Patel has moved to dismiss all claims for lack of subject-matter jurisdiction in the event that the Court grants PMMC's motion on the EMTALA claim, because the remaining claims all arise under state law, rather than federal law.


         A court will award summary judgment on a claim or part of a claim where there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[31] A fact is “material” if resolving the dispute over the fact “might affect the outcome of the suit under the governing [substantive] law.”[32] A dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”[33]

         In evaluating a summary judgment motion, a court “must view the facts in the light most favorable to the non-moving party, ” and make every reasonable inference in that party's favor.[34] Further, “a court may not weigh the evidence or make credibility determinations.”[35]Nevertheless, the party opposing summary judgment must support each essential element of the opposition with concrete evidence in the record.[36] “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.”[37] This requirement upholds the “underlying purpose of summary judgment [which] is to avoid a pointless trial in cases where it is unnecessary and would only cause delay and expense.”[38] Therefore, if, after making all reasonable inferences in favor of the non-moving party, the court determines that there is no genuine dispute as to any material fact, summary judgment is appropriate.[39]


         A. PMMC's Motion for Summary Judgment

         PMMC moves for summary judgment on Plaintiff's EMTALA claim, arguing that: (1)

         Mr. Salata's admission to the primary care unit for observation ended its duty to stabilize under EMTALA and therefore precludes liability; and (2) Plaintiff cannot satisfy the requirements for an EMTALA failure-to-stabilize claim. Because the parties invoke EMTALA's text, statutory purpose, and implementing regulations in arguing their positions, the Court provides a brief background.

         “Congress enacted EMTALA in the mid-1980s based on concerns that, due to economic constraints, hospitals either were refusing to treat certain emergency room patients or transferring them to other institutions”-a practice known as “patient dumping.”[40] Accordingly, “EMTALA requires hospitals to provide medical screening and stabilizing treatment to individuals seeking emergency care in a nondiscriminatory manner.”[41] “[A]ny individual who suffers personal harm as a direct result of a hospital's violation” of EMTALA may then “bring a private civil action for damages” under the statute.[42] While EMTALA actions are usually brought in conjunction with state-law claims such as medical malpractice or negligence, EMTALA “does not create a federal cause of action for malpractice.”[43] That is, EMTALA “[l]iability is determined independently of whether any deficiencies in the screening or treatment provided by the hospital may be actionable as negligence or malpractice, as the statute was aimed at disparate patient treatment, ” not medical malpractice.[44]

         1. Whether Mr. Salata's Admission for Observation Precludes EMTALA Liability

         PMMC first argues that its EMTALA stabilization duties ended when it placed Mr. Salata in observation, and that it therefore cannot be held liable for failing to stabilize Mr. Salata.[45]This argument is based on the growing line of cases holding that a hospital's duty to stabilize under EMTALA ends when the hospital admits the patient, provided that the admission is not a subterfuge to avoid EMTALA obligations.[46] Although the Third Circuit has never addressed this issue, courts in this District have adopted this rule, reasoning that because EMTALA was intended as a limited solution to the practice of “patient-dumping, ” rather than as a federal malpractice statute, its stabilization obligations do not extend beyond the emergency room and the good-faith admission of a patient precludes an EMTALA claim.[47] Plaintiff does not take issue with this general rule, but argues that because Mr. Salata was placed in “observation, ” rather than admitted as an “inpatient, ” EMTALA's stabilization requirements applied. The Court agrees.

         EMTALA's text is ambiguous regarding whether Mr. Salata's admission for observation cuts off liability, and there is a dearth of case law on the subject as well. However, regulations bearing on this issue have been promulgated by the Centers for Medicare & Medicaid Services (“CMS”), the agency within the Department of Health and Human Services responsible for implementing EMTALA.[48] “CMS has the congressional authority to promulgate rules and regulations interpreting and implementing Medicare-related statutes such as EMTALA, ” and courts generally “defer to a government agency's administrative interpretation of a statute unless it is contrary to clear congressional intent.”[49] Here, both parties cite the CMS regulations in support of their positions, and neither argues that the Court should not defer to them.[50]

         The CMS regulations provide a limited exception to EMTALA's obligations, but only in the event that a hospital “admits [an] individual as an inpatient.”[51] The relevant CMS Final Rule, issued in 2003, also makes clear that CMS interprets “hospital obligations under EMTALA as ending once the individuals are admitted to the hospital inpatient care.”[52] Nowhere do the regulations state that admission for observation similarly ends a hospital's EMTALA obligations. To the contrary, later CMS interpretative guidance makes clear that observation status does not qualify as inpatient admission for purposes of EMTALA liability. In 2009, CMS explained: “Individuals who are placed in observation status are not inpatients, even if they occupy a bed overnight. Therefore, placement in an observation status of an individual . . . does not terminate the EMTALA obligations of that hospital or a recipient.”[53] The Court gives “substantial deference” to CMS's “interpretation of its own regulations, ” and concludes that Mr. Salata's admission for observation did not end PMMC's EMTALA obligations.[54]

         This conclusion is reinforced by CMS's Healthcare Benefit Policy Manual, in which CMS expressly defines “observation status” as an outpatient status, as opposed to an inpatient status.[55] The Manual explains that “[t]he purpose of observation is to determine the need for further treatment or for inpatient admission” and “a patient receiving observation services may improve and be released, or be admitted as an inpatient.”[56] “Observation” status thus differs from “inpatient” status in that it is used to determine whether an individual should be admitted as an inpatient or discharged; it is not simply another form of inpatient admission with different insurance consequences, as PMMC suggests. It therefore makes sense to distinguish between admission for observation and inpatient admission for purposes of determining EMTALA liability.

         PMMC raises three arguments as to why admission for observation precludes EMTALA liability. First, PMMC advances a strained interpretation of the CMS regulations, arguing that “inpatient” can be defined to include patients placed in observation status.[57] PMMC's argument is based on 42 C.F.R. § 489.24(b), which defines “inpatient” as:

an individual who is admitted to a hospital for bed occupancy for purposes of receiving inpatient hospital services as described in §409.10(a) of this chapter with the expectation that he or she will remain at least overnight and occupy a bed even though the situation later develops that the individual can be discharged or transferred to another hospital and does not actually use a hospital bed overnight.[58]

         PMMC then turns to § 409.10(a), which defines “inpatient hospital services” as including a variety of services, including “bed and board, ” “nursing services, ” and other similar services.[59]PMMC argues that because patients placed in observation at PMMC may receive these services, they qualify as “inpatients” under § 489.24(b), and therefore Mr. Salata's admission for “observation” constitutes “inpatient” admission sufficient to cut off EMTALA liability. This argument runs contrary to CMS's own guidance, however, which plainly states that admission for observation status “does not terminate the EMTALA obligations of that hospital or a recipient.”[60] CMS's 2003 Final Rule, in which the “inpatient” carve-out was first codified, also explains that for EMTALA purposes, “[g]enerally a person is considered an inpatient if formally admitted as an inpatient.”[61] Thus, even if Mr. Salata received the services listed in § 409.10(a), he did not qualify as an inpatient under the CMS regulations because he was not “formally admitted” as one.

         PMMC points to the District of Massachusetts' decision in Bryson v. Milford Regional Medical Center, Inc., in support of its interpretation, but that case is not binding on this Court and does not discuss the CMS regulations.[62] The opinion in Bryson did suggest that good-faith admission “for observation only” could end a hospital's EMTALA obligation, but the court ultimately did not resolve the admission issue and instead concluded that the plaintiff had failed to make out an EMTALA claim because she had been transferred to another hospital in compliance with EMTALA, which is not the issue here.[63] The Court thus does not find the Bryson decision helpful.[64]

         Second, PMMC argues that ending EMTALA liability once a patient is admitted for observation best accords with the statute's purpose. PMMC reasons that EMTALA was designed to prevent the “dumping” of uninsured or underinsured patients, and that an individual's admission for observation fulfills this goal, similar to inpatient admission.[65]However, as explained in the CMS Policy Manual, observation status is not the same as inpatient admission, but is used to determine whether a patient should be admitted for further treatment or discharged. “In other words, observation is sometimes necessary in order to identify whether a hospital would be violating EMTALA by releasing or transferring a particular patient.”[66]Holding that admission for observation bars EMTALA liability would thus create an end-run around the statute by allowing hospitals to place patients in a limbo-like observation status without stabilizing them, secure in the knowledge that they could discharge the patient at any point, regardless of their condition, without incurring EMTALA liability. This would condone, if not encourage, the practice of “patient dumping” that EMTALA was designed to prevent.[67]

         Third, PMMC argues that the record shows that “the classification between an inpatient and observation admission at PMMC is purely a financial or insurance classification, ” and so Mr. Salata should be treated as having been admitted as an inpatient.[68] However, Dr. Chung testified that the decision to place a patient in observation, as opposed to admitting him or her as an inpatient, is always made by a physician based on “clinical criteria, ”[69] and PMMC acknowledges that Mr. Salata was placed in observation because he did not meet the clinical requirements for inpatient admission.[70] Thus, there is at least a genuine factual dispute regarding whether the care Mr. Salata received in observation was substantially similar to the care he would have received had he been admitted as an inpatient, and summary judgment is inappropriate.

         In short, the CMS regulations and guidance make clear that admission for observation does not end a hospital's EMTALA obligations, and PMMC's arguments to the contrary are not persuasive. Summary judgment on this ground will be denied.

         2. Whether Plaintiff Satisfies the Requirements for an EMTALA Stabilization Claim

         PMMC also argues that Plaintiff cannot make out the three elements of an EMTALA failure-to-stabilize claim. To do so, Plaintiff must show: (1) Mr. Salata “had an emergency medical condition; (2) the hospital actually knew of that condition; and (3) [Mr. Salata] was not stabilized before being transferred.”[71] The record does not support a grant of summary judgment on any of these elements.

         a. Emergency Medical Condition

         Regarding the first element, EMTALA defines an “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-(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part . . . .[72]

         PMMC acknowledges that unstable angina constitutes an emergency medical condition, [73]and instead argues that Mr. Salata did not have an emergency medical condition at the time of discharge because he was not reporting severe pain, he was sitting upright and alert, and his symptoms appeared to have improved after he received proton pump inhibitors for reflux.[74] PMMC also argues that Mr. Salata was not suffering from an emergency medical condition because Dr. Patel diagnosed him with gastric reflux, rather than unstable angina.[75]

         However, there is also evidence that could establish that Mr. Salata was suffering from an emergency medical condition at discharge. Dr. Chung initially noted that Mr. Salata's pain might be caused by an unstable angina, PMMC never performed the stress test necessary to rule this out as the cause, and Mr. Salata was ultimately sent home with discharge instructions for “acute coronary syndrome.”[76] As Plaintiff notes, Mr. Salata reported his pain as “intermittent” upon arrival, so the fact that his symptoms appeared improved at discharge does not necessarily show that he was not suffering from an emergency medical condition.[77] PMMC also does not dispute that Mr. Salata suffered “severe substernal burning” shortly before his discharge-and after his last visit with Dr. Patel-suggesting that his condition had not abated and that Dr. Patel's reflux diagnosis may have been incorrect.[78] Based on this and other record evidence, Plaintiff's expert, Dr. Charash, has offered his opinion that Mr. Salata was “highly unstable” at the time of discharge and was at “extreme risk for otherwise preventable sudden death.”[79] At the very least, there is a factual dispute regarding whether Mr. Salata was suffering from an emergency medical condition at the time of his discharge.[80]

         b. Actual Knowledge

         Regarding the second element of a failure-to-stabilize claim, Plaintiff must show that PMMC had actual knowledge of Mr. Salata's emergency medical condition at the time of discharge, as PMMC cannot be held liable under EMTALA for conditions it did not detect.[81]PMMC argues that Plaintiff cannot show actual knowledge because neither Dr. Patel, Mr. Salata's consulting cardiologist, nor anyone else at PMMC determined that Mr. Salata was suffering from unstable angina at the time of discharge.[82]

         This assertion is belied by the record. Mr. Salata's primary assessment revealed cardiac risk factors, Dr. Chung identified unstable angina as a possible cause of Mr. Salata's symptoms, the stress test necessary to rule out that diagnosis was never performed, and Mr. Salata was discharged with instructions for “acute coronary syndrome, ” all of which could evidence actual knowledge on PMMC's part.[83] PMMC makes much of the fact that Dr. Patel diagnosed Mr. Salata with reflux prior to discharge, but Dr. Patel was not informed that Mr. Salata had suffered severe substernal burning shortly beforehand, so his diagnosis alone does not necessarily show that PMMC lacked actual knowledge as to Mr. Salata's condition.[84] In short, there is record evidence supporting Plaintiff's argument that PMMC had actual knowledge of an emergency medical condition, and the Court will not weigh the evidence on a summary judgment motion.[85]

         c. Stabilization

         Finally, PMMC argues that Plaintiff cannot establish the third element of an EMTALA claim because Mr. Salata was stabilized prior to discharge.[86] Under EMTALA, “stabilized” means that “no material deterioration of the condition is likely, within reasonable medical probability, to result from or occur during the transfer of the individual.”[87] PMMC claims that because Mr. Salata's symptoms had improved and he was not complaining of chest pain at the time of discharge, Plaintiff cannot show that he was unstable.

         Here, too, PMMC glosses over conflicting evidence. As discussed, there is evidence that Mr. Salata suffered severe substernal burning shortly before discharge (of which Dr. Patel was never made aware), that his chest pain had been intermittent all along (meaning that its absence at the time of discharge may not be particularly noteworthy), and that unstable angina was never ruled out as the cause of his symptoms, in part because certain testing was never done.[88]Plaintiff's expert, Dr. Charash, also opines that Mr. Salata was not stabilized based on his medical record.[89] It is for the factfinder to evaluate these issues and determine whether Mr. Salata was stabilized.

         B. Dr. Chung's Motion for Summary Judgment

         Dr. Chung moves for summary judgment on the three state-law claims against him (the survival action, wrongful death, and negligence claims), all of which are predicated on medical malpractice. Dr. Chung argues that Plaintiff has failed to present expert evidence that Dr. Chung deviated from the applicable standard of care, and that this is fatal to Plaintiff's claims.[90]Plaintiff responds that the opinion of its proffered expert Dr. Rubin, whose qualifications Dr. Chung does not challenge, is sufficient to survive summary judgment.[91] The Court agrees.

         “[T]o prevail in a medical malpractice action, a plaintiff must establish a duty owed by the physician to the patient, a breach of that duty by the physician, that the breach was the proximate cause of the harm suffered, and the damages suffered were a direct result of the harm.”[92] “Because the negligence of a physician encompasses matters not within the ordinary knowledge and experience of laypersons a medical malpractice plaintiff must present expert testimony to establish the applicable standard of care, the deviation from that standard, causation and the extent of the injury.”[93] “In other words, the general rule under Pennsylvania law is that expert testimony is required in order for a plaintiff to establish the elements of a prima facie case of medical malpractice.”[94]

         Dr. Chung argues that Plaintiff has failed to present such expert testimony because Dr. Rubin does not offer any criticism of Dr. Chung's actions on May 28, when he evaluated Mr. Salata, and Dr. Rubin's opinion focuses on Mr. Salata's May 29 discharge, when Dr. Chung was admittedly not present at PMMC.[95] However, Dr. Rubin's report clearly contains an opinion that Dr. Chung breached a duty to Mr. Salata and that this breach caused his injury. In particular, Dr. Rubin opines that Dr. Chung: (1) failed to ensure that Mr. Salata “received the testing he needed”; (2) failed “to advocate on Salata's behalf and ensure he obtained a cardiac catheterization and/or a stress EKG as originally planned by Dr. Patel”; (3) failed either to implement Dr. Patel's original consultation plan or to obtain a consultation from a different cardiologist once it became apparent that Dr. Patel was not going to implement the plan; and (4) failed to prevent Mr. Salata's discharge until the appropriate testing was conducted.[96] Dr. Rubin further opines that these failures resulted in Mr. Salata's discharge, which in turn contributed to his death.[97] Thus, Plaintiff has presented expert evidence in support of the claims against Dr. Chung.[98]

         Despite this, Dr. Chung argues that Dr. Rubin's opinion is insufficient based on certain answers Dr. Rubin gave at his deposition. First, Dr. Chung argues that Dr. Rubin admitted that he had “no criticism” of Dr. Chung's actions on May 28, and therefore effectively repudiated his criticisms of Dr. Chung.[99] This argument misses the point, as the criticisms in Dr. Rubin's report are based on Dr. Chung's failure to follow through in his treatment of Mr. Salata, including by ensuring that Mr. Salata received necessary testing and that Dr. Patel's treatment plan was implemented.[100] Dr. Rubin's testimony is consistent with this, and makes clear that while Dr. Rubin had no criticism of Dr. Chung's decisions on May 28, Dr. Chung was nonetheless obligated to ensure that the cardiologist's treatment plan was followed or that another cardiologist was consulted, which he failed to do.[101]

         Next, Dr. Chung argues that Dr. Rubin's criticisms focus entirely on other individuals at PMMC, pointing to Dr. Rubin's testimony that Mr. Salata's cardiologist “was responsible for his poor recommendations, [and] lack of treatment of the patient.”[102] However, in the same answer, Dr. Rubin explained that “Dr. Chung as the attending physician ha[d] a responsibility” as well, and it is thus ...

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